Right to reside test

Entitlement to many benefits depends on having a right to reside in the British/Irish common travel area. A 'right to reside' means being legally entitled to live in the UK/Ireland, either for a fixed period or indefinitely. The way people obtain a right to reside depends on whether they are an EEA national (or family member of an EEA nationals) and whether they have lived in the UK since before 1 January 2021.

EEA nationals

Until the end of 2020, all EEA nationals (and family members of EEA Nationals) were able to establish a right to reside in the UK under EU free movement rules. This meant that they did not need a residence document such as a visa to prove their status in the UK – as long as they were working or able to support themselves financially, they had an automatic right to live here.

After a certain length of time (usually five years) their right to stay in the UK became permanent – again without any need for a residence document.

Having a right to reside under EU free movement rules allowed a person to access services in the UK, including benefits. They would prove their right to claim benefits by providing evidence of their economic situation.

For example an EEA national with a right to reside as a worker would produce evidence that they were an EEA national (passport or national ID card) and that they were working. A family member of a worker would produce evidence of their family connection (eg marriage certificate) plus evidence of the EEA national’s status.

From January 2021, the right to reside under EU free movement rules was phased out. Generally, only people who were already in the UK by 31 December 2021 can rely on an EU right to reside.

People arriving from the EEA from 2021 onwards now generally require leave to enter or remain and will prove their right to reside by sharing their online immigration documentation with the benefits office. In practice almost all of this group will satisfy the right to reside test if their immigration status allows them to claim benefits.

If you have pre-settled status under the EU settlement scheme but no other right to reside see EEA nationals and their family members before 2020 and check this guide from CPAG for a summary of a legal challenge on this issue in 2021.

Non-EEA nationals

Non-EEA nationals without an EEA family connection can satisfy the right to reside test by having leave to enter or remain in the UK, which they can prove by showing a benefits decision maker their residence card or passport stamp or sticker.

In practice, almost all non-EEA nationals will satisfy the right to reside test if their immigration status allows them to claim benefits – it is virtually impossible to pass the immigration status test and fail the right to reside test.

People who can still rely on an EU right to reside beyond 1 January 2021

The following EU residence rights will satisfy the right to reside test for all benefits:

• Worker
• Self-employed person
• Retained status as a worker or self-employed person
• A student or self-sufficient person*
• Someone with a permanent right to reside after five years’ residence*
• Someone with a permanent right to reside after less than five years due to retirement form work
• A family member of any of the above
• A person with a derivative right to reside, to protect the rights of children to stay in the UK, if they are not a Zambrano carer.

Please note: People in the groups with a * must also satisfy the habitual residence in fact test. Where the EEA national is required to satisfy the habitual residence test, so must their family member in cases where the family member is the benefit claimant or joint claimant.

The following EEA residence rights continue to satisfy the 'right to reside' test for some benefits:

• Jobseeker – someone who is entering the job market and has not yet found their first job. This does not satisfy the right to reside test for any benefits other than Child Benefit. See EEA Jobseeker definition.
• A 'derivative' right to reside, to protect the rights of children to stay in the UK, if they are Zambrano carer. See Derivative right to reside.

There used to be an Initial right to reside (IRR) for three months without being economically active – this did not satisfy the right to reside test for any benefits other than Child Benefit. The last group able to rely on this had their IRR expire in April 2021. See Initial right of residence.