Who does the habitual residence test apply to?
You may need to pass the habitual residence test to claim benefits. The test applies to:
- EEA nationals and their family members who are able to rely on EU residence rights, and whose right to reside in the UK does not make them exempt from the requirement to be habitually resident (see 'Exemption from the habitual residence test' below).
- People with any other EU right to reside.
- EEA nationals and their family members who are not able to rely on EU residence rights.
- British and Irish nationals returning to the UK after a lengthy absence.
- Non-EEA nationals.
Passing the habitual residence test
To satisfy the habitual residence test you will need to demonstrate the following:
- ‘Settled intention to remain’ in the UK – this means that a person would need to demonstrate their intention to remain in the UK e.g. by demonstrating friend or family connections, job contracts etc.
- ‘Centre of Interest’ – a person would need to prove that their base in the UK is their ‘Centre of Interest’. This might be done by evidencing a job, home address, GP, membership of clubs etc in a particular area.
- ‘Appropriate period of time’ already spent in the UK – this is not defined, but is generally between 1 and 3 months.
- There may be cases when a person is considered to resume their ‘habitual residence’ immediately on re-entering a country after a period away from the country e.g if they have had to leave to look after an unwell relative.
Exemption from the habitual residence test
Some people are exempt from the habitual residence test, including:
- EEA nationals and their family members who are still able to rely on EU residence rights and who have any of the following rights of residence: ‘workers’, ‘self-employed people’, people who retain worker or self-employed status, people with a permanent right to reside after less than five years and family members of any of these groups.
- Refugees (i.e. successful asylum seekers who have been recognised as genuine refugees).
- People given leave to remain on human rights grounds or for other exceptional reasons.
- People who have been deported back to the UK from another country.
- From time to time the exemptions are extended to cover temporary situations overseas that are likely to result in people being displaced.
Benefits that have a Habitual Residence test
To get Universal Credit, Pension Credit, Housing Benefit, Council Tax Reduction and (where these can still be claimed) Income Support, income-based Jobseekers Allowance and income-related Employment and Support Allowance, you must have a right to reside and be habitually resident in the UK and Irish common travel area.
You need to prove you are habitually resident to apply for Attendance Allowance, Carer's Allowance, Disability Living Allowance or Personal Independence Payment, but you do not need to have a 'right to reside'. You also need to satisfy a past presence for these benefits.