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.
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 is being 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 will 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.
Please note: There is currently a legal challenge about the right to reside rules for those with a pre-settled status. The courts are deciding whether pre-settled status on its own satisfies the right to reside test or whether someone needs an additional EEA right of residence alongside it. Until there is a final decision pre-settled status alone doesn't satisfy the right to reside test and the information in the section above applies. Check this guide from CPAG for updates on the legal challenge and what you (or your advisor, if you have one) can do.
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.
The following notes are for people who can still rely on an EU right to reside beyond 1 January 2021.
Right to reside for people still able to rely on EU residence rights
Not all EEA residence rights satisfy the 'right to reside' test. There are a few exceptions:
- Initial right to reside for three months without being economically active – this does not satisfy the right to reside test for any benefits other than Child Tax Credit and Child Benefit. See Initial right of residence.
- 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, Child Tax Credit and income-based Jobseekers Allowance. 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.
- Pre-settled status under the EU settlement scheme, where the person has no other right to reside. See EEA nationals and their family members before 2020
Rights of residence that do satisfy the test
The following EU residence rights will satisfy the right to reside test for all benefits:
- 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.