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If you don’t have the right to reside in the UK - claiming benefits
If you come to the UK from abroad and want to claim certain benefits, you must satisfy the conditions of a test, known as the habitual residence test. To satisfy these conditions, you must prove:
- you have a legal right to live in the UK and claim these benefits. This is called the right to reside, and
- you intend to settle in the UK, Isle of Man, Channel Islands or Ireland and make it your home for the time being. This is known as habitual residence.
This applies to British nationals returning to the UK after time abroad, as well as people coming to the UK from other countries.
This page tells you more about the right to reside and what your options might be if you don’t have it.
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.If you need more help
What is the right to reside?
Most people who come to the UK have permission to enter the country and spend time here. This is called lawful presence. However if you want to claim benefits, you must also have a right to reside.
The right to reside means that you have permission or a right to live in UK and can also claim benefits. It's also known as legal residence. There are several ways you can have the right to reside. For example, it can depend on:
- your nationality
- your immigration status
- the circumstances of you and your family members
- the right to reside under UK law
- if you're an EEA national, the right to reside under European Treaty rights.
If you're 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.
There may be more than one way you have a right to reside. For example, if you're an EEA national you're automatically given a three-month right to reside when you enter the UK but this is not accepted as a right to reside for the HRT test. However, under European law, if you take up work in the UK, you also gain a right to reside and you may be able to claim certain benefits.
What to do if you don’t have the right to reside
If your benefits claim is refused because you don't have the right to reside you should seek advice immediately.
Getting the right to reside
Not everyone will be able to get a right to reside. But you could look at some options with an adviser. For example:
- if you are an EEA national you may be able to sign on as a jobseeker and get income-based jobseeker's allowance (unless you are a Croatian national who needs Worker Authorisation)
- if you are a family member of an EEA national who does have a right to reside you may be able to argue you also have a right to reside
- if you have children with British citizenship, you could argue you have the right to reside through them
- if your parent was born in the UK you may be able to argue you have British citizenship.
This is not a complete or guaranteed list of reasons that will give you a right to reside. Your right to reside will depend on your personal circumstances. It's therefore really important to get advice from an experienced adviser.
- Find out if you can get the right to reside
- Check if you are exempt from satisfying the conditions of the HRT
- What to do if you fail the habitual residence test
- Proving your status and intention to settle in the UK
- More about the habitual residence test and what benefits it applies to
Other useful information
- The rights of European nationals - UK Border Agency at www.ukba.homeoffice.gov.uk
- Case-law examples of the habitual residence test - Parliament at www.parliament.uk - go to page 12
- What the European law says: the EC Directive 2004/38 - EUR-Lex at www.eur-lex.europa.eu
- What the UK law says: Immigration (EEA) Regulations 2006 - Legislation at www.legislation.gov.uk
- Department for Work and Pensions at www.dwp.gov.uk