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What to do if you fail the habitual residence test
If you are an EEA national who has come to the UK from abroad and you want to claim certain means-tested benefits, you must satisfy the conditions of a test, known as the habitual residence test (HRT). To satisfy these conditions, you must show:
- you have a legal right to live in the UK. This is called the right to reside, and
- you intend to settle in the UK, Isle of Man, Channel Islands or Ireland (the Common Travel Area) and make it your home for the time being. This is known as habitual residence.
The habitual residence part of the test applies to British nationals returning to the UK after time spent living or working abroad abroad, as well as to people coming to the UK from other countries. However, British citizens automatically have the right to reside in the Common Travel Area.
This page will tell you what you may be able to do if you don’t satisfy the conditions of 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.If you need more help
If you've not satisfied the conditions of the HRT
If your benefits claim is refused because you do not satisfy the conditions of the HRT you should seek advice immediately. You may be able to challenge the decision.
Challenging the decision
If you believe you're habitually resident or have the right to reside you could challenge the decision. If you want to do this you must first ask for 'mandatory reconsideration' of the decision before you can formally appeal. You may want to ask for a 'statement of reasons' for the decision first and you should do this within one month.
You may be asked to give more details or show other evidence about why you satisfy the test.
If you're subject to immigration control, you can't claim normally claim any benefits. Making a claim may affect your right to stay in the UK.
You may be subject to immigration control 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.
If you've done all you can to find the evidence you need to prove you're habitually resident, but haven't been able to get hold of the paperwork, ask the Department for Work and Pensions (DWP) if it can find the evidence to support your claim.
For example, if your right to reside is based on being a family member but you can’t get proof because the relationship has broken down, the DWP might be able to get the information from its records or from other government departments.
Make a new claim for the benefit
If you don't satisfy the conditions of the HRT when you first claim benefit you could make another claim for the benefit at a later date. You can reapply for the benefit at the same time as challenging a decision. In some cases you may be able to satisfy the conditions of the HRT when you can show that you've been resident in the UK for just a few weeks longer.
You don't have to wait for the outcome of an appeal or for the decision to be reconsidered before you re-apply for benefits. If you're told this is a reason why you can't make a new claim, you should do so anyway and seek specialist advice.
Think about what more you can do to show that you've settled in the UK. For example, could you register with your local GP or join a local club or volunteering group? Try to gather as much evidence as you can.
If you have a partner
If your partner has the right to reside and they're more likely to satisfy the habitual residence test, it may be possible for them to claim benefits or homelessness assistance instead of you.
- Getting support if you fail the habitual residence test
- The habitual residence test - how a decision is made
- Asking for a reconsideration of your benefit decision