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The habitual residence test - how a decision is made
If you're an EEA national who has come to the UK and wants to claim certain means-tested benefits, you must meet the conditions of the habitual residence test (HRT). This test is carried out to make sure that if you're planning to claim these benefits, you've a legal right to be in the UK (the right to reside) and that you're intending to settle here for the time being (habitual residence). Once you show that you satisfy the right to reside part of the test you must then go on to show that you are habitually resident in the UK, Isle of Man, Channel Islands or Ireland (the 'Common Travel Area').
The habitual residence part of the test applies to British citizens returning to the UK after time spent living or working abroad, as well as to EEA nationals coming to the UK.
This page explains how a decision is made on whether you pass the habitual residence test.
Proving your right to reside and intention to settle in the UK can be difficult. If you're unsure about anything, seek the help of an adviser.
How is the decision made?
When you fill in your benefits claim form, you will be asked questions to decide whether you are subject to the habitual residence test.
Based on your answers, the Department of Work and Pensions (DWP), HM Revenue and Customs (HMRC) or local authority will ask you for more information to decide if you are habitually resident.
If you're in a couple, only the person making a claim for benefits has to meet the conditions of the HRT. So before you make a claim, it’s a good idea to decide which one of you is most likely to meet those conditions.
If you're a non-EEA and non-UK national who is subject to immigration control, you can't claim benefits. Making a claim may affect your right to stay in the UK.
This may be the case if you:
- need permission to enter or remain in the UK but don't yet have it
- have permission to enter or remain in the UK only if you don't claim benefits or use other public services
- were given permission to enter or remain in the UK because someone formally agreed to support you.
A decision maker at the DWP, HMRC or your local authority will decide if you meet the conditions or not. If it's decided you don't meet the conditions, you won’t be able to receive the benefits. The test can take some time to process. If you think you will struggle financially while waiting for a decision, seek advice on what help you may be able to get.
What factors does a decison-maker look at?
There is no clear definition of habitual residence and it can be difficult to prove that you intend to settle in the UK. The decision-maker may look at a range of factors, including:
- the length of time you have been in the UK
- your reasons for coming to the UK
- how long you intend to stay here
- whether you're working in the UK or are likely to find work in the UK.
The decision maker will also look at how much your life is based in the UK. Things they will consider include whether:
- you own property in the UK
- your personal possessions are mostly in the UK
- you have family and relatives here
- you've registered with a GP and dentist
- you've opened a bank account here
- you've joined any clubs or societies in the UK
- you've enrolled your children at a school.
It can be difficult to predict what decision will be made about your claim. Your specific circumstances will be taken into account when they make a decision. It's really important to include as much evidence as possible when you fill in the HRT form. For example, you could include the following pieces of evidence:
- proof of when you arrived in the UK, eg., travel tickets
- proof that your children are enrolled in school.
- if you're working, a letter from your employer confirming your employment or a copy of your employment contract or payslips
- if you're self-employed, confirmation that you've registerd as self-employed with HMRC
- if you're a former worker, proof of former work and the reasons for leaving
- if you're supporting yourself financially, evidence of private health insurance
- proof that you've sold a property abroad or given up a tenancy
- documents to show you own or rent property in the UK.
If possible, seek advice about what evidence you need to provide. Try to provide official documents wherever possible.
Even if you can show that you intend to settle in the UK you must also normally show that you have actually lived here for an 'appreciable' period of time before you will be treated as habitually resident. The length of time that you need to have actually lived here may vary from person to person but is unlikely to be more than three months. If you are claiming income-based jobseeker's allowance regulations say that you cannot satisfy the conditions of the HRT until you have actually lived in the Common Travel Area for at least three months.
Even if you do not satisfy the habitual residence test when you first claim benefits you may satisfy it if you make a new claim at a later date and can show that you have been living in the UK for a longer period of time.
Returning UK residents
The habitual residence test can also be applied to UK residents who are returning to the UK from a period spent living or working abroad. This means that there may be a delay before you are allowed to claim means-tested benefits. However, if you are treated as a 'returning resident' you may be treated as being habitually resident as soon as you retun to the UK.