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Habitual Residence Test - What are the two parts of the Habitual Residence Test?

Find out more about the Habitual Residence Test.

What are the two parts of the Habitual Residence Test?

There are two parts to the Habitual Residence Test:

Right to reside – in the Common Travel Area (UK, Ireland, the Channel Islands and the Isle of Man)

Habitually resident in fact.

Regulations state that you can’t be habitually resident unless you have the right to reside in the Common Travel Area. Therefore the Department for Work and Pensions (DWP) will check ‘right to reside’ first and if you have the right to reside they will then see if you are ‘habitually resident in fact’.

Right to reside rules

 

British citizens

British citizens will always have a right to reside in the UK.  However, a residency rule has been introduced for EEA job seekers and this also applies to British citizens who are job seekers and have recently returned after a period of three or more months abroad. See EEA jobseekers

EEA nationals

The main group of people affected by right to reside rules are EEA nationals.

All EEA nationals and their family members have the right to reside in any other member state for a period of three months.

People who have a right to reside only because of the initial three month rule will not satisfy the 'right to reside' aspect of the HRT for:

To have a right to reside after three months, you must:

  • Be a 'qualified person', or

  • Have the right of permanent residence, or

  • Have a derivative right to reside.

To be a 'qualified person', you must be a:

*Jobseeker (for up to 3 months - a limited extension may be granted if you pass a Genuine Prospect of Work assessment 

  • Worker (must earn over £155 a week)

  • Self-employed person

  • Self-sufficient person

  • Student.

You normally acquire permanent right of residence by:

  • Living in the UK as a qualified person for five years; or

  • In some cases, people who have worked or been self-employed in the UK and have retired may also acquire a right of permanent residence.

To have a 'derivative right to reside':

  • You must be the primary carer of a child under the age of 18 who is in education, and

  • You must have previously been a worker while the child was in the UK, and

  • The child would not be able to continue their education if you had to leave the UK.

  • You are the primary carer of a British Citizen residing in the UK who would be unable  to reside in the UK or another EEA state if you were required to leave.

EEA job seekers

No EEA job seekers will be able to access Universal Credit without having worked here first.

An EEA national who is a job seeker used to be able to claim income-based Jobseeker's Allowance (JSA)Child Benefit and Child Tax Credit within the initial three month right of residence period and as a result would be able to claim Housing Benefit and Council Tax Support as well. This is no longer the case.

If the EEA jobseeker (or British citizen returning from three months or more abroad) hasn't worked since arriving in the UK, a three month residency rule has been introduced. In order to make a JSA claim they will have to provide evidence of how long they have been living in the UK (or the Common Travel Area), for example, a travel document, utility bill or tenancy agreement, to show they have been living here for at least three months. If it is decided that there is not sufficient evidence they will not pass the Habitual Residence test.

For Child Benefit and Child Tax Credit there are exceptions to the three month residency rule, covering people who:

  • Usually live in the UK and were receiving Child Tax Credit when they moved abroad for less than 1 year

  • Had lived in the UK for three months when they moved abroad for less than 1 year

Other exceptions can be found in the Gov.UK website information on tax credits if you leave or move to the UK

EEA job seekers will also have to answer more individually-tailored questions and provide more detailed answers about what efforts they have made to find work before coming to the UK and whether their English language skills will be a barrier to them finding employment.

If a JSA claim made by a EEA jobseeker or retained worker is successful it will be time-limited to 3 months unless they can demonstrate they are actively seeking work and have a genuine prospect of work.

Genuine Prospect of Work assessment extended to older EEA National JSA claims

From 9 February 2015, EEA nationals who have an existing claim to income-based Jobseeker’s Allowance (JSA) made before 1 January 2014 will now also be subject to a genuine prospect of work assessment (GPoW).

The first GPoW assessment interviews will start to take place in May 2015. If, during the assessment interview, the JSA claimant is unable to provide compelling evidence that they have a genuine prospect of work, their current right to reside and consequently their entitlement to income-based JSA will cease. The JSA claimant will have the opportunity to provide evidence of an alternative right to reside in the UK for the DWP Decision Maker to consider.

The aim of extending the GPoW assessment is to ensure that all EEA nationals claiming income-based JSA are treated in the same way, regardless of when they made their claim to benefit.

Croatian nationals

Although members of the EEA, it is more difficult for a Croatian national to be considered a ‘qualified person’ as they do not gain right to reside from being a jobseeker and only gain right to reside as a worker if they have an accession worker registration document.

Croatia became an EEA member in July 2013 and restrictions on benefit entitlement can be imposed for up to five years. So, for Croatian nationals, these restrictions are expected to remain in place until 2018.

See the Gov.UK website information for Croatian nationals working in UK ( link opens in a new window)

Non-European Economic Area nationals

Non EEA nationals will be subject to immigration rules and their right to benefits will be defined by their immigration status. Those with ‘leave to enter’, or ‘leave to remain’, have a right to reside during that period of leave. Most with ‘limited leave to remain’ will have their recourse to public funds restricted.

See our information for Nationals of non-EEA countries for further details.

'Habitual residence in fact'

Proving someone is ‘habitually resident in fact’ relies on case law (law that is based on the outcomes of previous court cases) as there is no definition in the Regulations of ‘habitual residence’.

Some key points:

  • You must be resident (and in some cases have been so for at least 3 months)

  • You must show intention to settle (not necessarily permanently).

You may be accepted as habitually resident from your first day if you are returning to the country and you were previously habitually resident or you or a member of your family is a national of, or has worked in, another European Economic Area (EEA) state.

British citizens who have lived abroad and are returning to the UK will still have to show that they are 'habitually resident in fact'.

European Community rules

If you are an EEA national, you may be able to benefit from European Community rules.

More information

Please note: This is a very complex area of the law so it is important that you seek specialist advice. You can use our Find an Adviser tool to find a local adviser to help you further.

*UK Visas and Immigration section of the Gov.UK website

*Citizens Advice information on the Habitual Residence Test
(Please make sure you read the information for the country of the UK you live in by selecting it from the dropdown menu on  the page)


Last updated: 12 May 2015

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