Habitual Residence

Homelees luton page·Monday, 9 January 2017

The habitual residence test - how a decision is made

If you're an EEA national who has come to the UK and wants to claim certain means-tested benefits, you must meet the conditions of the habitual residence test (HRT). This test is carried out to make sure that if you're planning to claim these benefits, you've a legal right to be in the UK (the right to reside) and that you're intending to settle here for the time being (habitual residence). Once you show that you satisfy the right to reside part of the test you must then go on to show that you are habitually resident in the UK, Isle of Man, Channel Islands or Ireland (the 'Common Travel Area').

The habitual residence part of the test applies to British citizens returning to the UK after time spent living or working abroad, as well as to EEA nationals coming to the UK.

This page explains how a decision is made on whether you pass the habitual residence test.

How is the decision made?

When you fill in your benefits claim form, you will be asked questions to decide whether you are subject to the habitual residence test.

Based on your answers, the Department of Work and Pensions (DWP), HM Revenue and Customs (HMRC) or local authority will ask you for more information to decide if you are habitually resident.

If you're in a couple, only the person making a claim for benefits has to meet the conditions of the HRT. So before you make a claim, it’s a good idea to decide which one of you is most likely to meet those conditions.

A decision maker at the DWP, HMRC or your local authority will decide if you meet the conditions or not. If it's decided you don't meet the conditions, you won’t be able to receive the benefits. The test can take some time to process. If you think you will struggle financially while waiting for a decision, seek advice on what help you may be able to get.

What factors does a decison-maker look at?

There is no clear definition of habitual residence and it can be difficult to prove that you intend to settle in the UK. The decision-maker may look at a range of factors, including:

the length of time you have been in the UK

your reasons for coming to the UK

how long you intend to stay here

whether you're working in the UK or are likely to find work in the UK.

The decision maker will also look at how much your life is based in the UK. Things they will consider include whether:

-you own property in the UK

-your personal possessions are mostly in the UK

-you have family and relatives here

-you've registered with a GP and dentist

-you've opened a bank account here

-you've joined any clubs or societies in the UK

-you've enrolled your children at a school.

It can be difficult to predict what decision will be made about your claim. Your specific circumstances will be taken into account when they make a decision. It's really important to include as much evidence as possible when you fill in the HRT form. For example, you could include the following pieces of evidence:

proof of when you arrived in the UK, eg., travel tickets

proof that your children are enrolled in school.

if you're working, a letter from your employer confirming your employment or a copy of your employment contract or payslips

if you're self-employed, confirmation that you've registerd as self-employed with HMRC

if you're a former worker, proof of former work and the reasons for leaving

if you're supporting yourself financially, evidence of private health insurance

proof that you've sold a property abroad or given up a tenancy

documents to show you own or rent property in the UK.

If possible, seek advice about what evidence you need to provide. Try to provide official documents wherever possible.

Even if you can show that you intend to settle in the UK you must also normally show that you have actually lived here for an 'appreciable' period of time before you will be treated as habitually resident. The length of time that you need to have actually lived here may vary from person to person but is unlikely to be more than three months. If you are claiming income-based jobseeker's allowance regulations say that you cannot satisfy the conditions of the HRT until you have actually lived in the Common Travel Area for at least three months.

Even if you do not satisfy the habitual residence test when you first claim benefits you may satisfy it if you make a new claim at a later date and can show that you have been living in the UK for a longer period of time.

If you fail the habitual residence test

Returning UK residents

The habitual residence test can also be applied to UK residents who are returning to the UK from a period spent living or working abroad. This means that there may be a delay before you are allowed to claim means-tested benefits. However, if you are treated as a 'returning resident' you may be treated as being habitually resident as soon as you retun to the UK.

To Read More Click On Link:https://www.citizensadvice.org.uk/b...

Habitual Residence TEXT PRINT PAGE­Turn2us CLINK ON LINK BELOW

https://www.turn2us.org.uk/Benefit-...

What is the habitual residence test?

http://www.housing-rights.info/habi...

[PDF] Habitual residence and right to reside - Gov.uk

https://www.gov.uk/government/uploa...

Habitual Residence test:

If you are an EEA national and want to claim certain means-tested benefits, you must normally satisfy the conditions of the habitual residence test.

The habitual residence test applies to claims for the following benefits:

-Income Support

-Income-based Jobseeker’s Allowance

-Income-related Employment and Support Allowance

-Pension Credit

-Housing Benefit

-Council Tax Reduction

-Universal Credit

The habitual residence test will show:

whether you have the right to reside in the UK, and

whether you are intending to settle in the UK, Isle of Man, Channel Islands, or Ireland (the 'Common Travel Area') for the time being.

In addition to passing the habitual residence test, you must still satisfy the normal conditions for the benefit you are claiming.

You can contact THT Direct on 08088021221 or register for Online Advice for advice on how to prove your right to reside and that you are habitually resident.

UK nationals and the habitual residence test

The habitual residence part of the test is also carried out on some UK nationals who have been living or working abroad.

If you are a UK national who has been living or working abroad, you will only have to show that you have become habitually resident as you will automatically have the right to reside.

Immigration control

If you're a non-EEA and non-UK national, you may be subject to immigration control and you cannot normally claim benefits.

Making a claim may affect your right to stay in the UK. Please contact us for further advice on this.

Child Tax Credits, Child Benefit and being ‘ordinarily resident’

The right to reside part of the habitual residence test also applies to Child Tax Credits and Child Benefit, but you do not have to show you are habitually resident to claim these.

Instead you have to show that you are 'ordinarily resident'.

If you have come to the UK since 1 July 2014 and you are not a worker or self-employed, for example, if you are a jobseeker, you need to live in the UK for at least three months before you can claim Child Tax Credits or Child Benefit. However, this rule will not apply to you if you were previously ordinarily resident in the UK and have returned to the UK after an absence of less than one year.

‘Ordinarily resident’ generally means that, apart from temporary or occasional absences, you normally live in the UK. It is possible for someone to be ordinarily resident in the UK from the day that they arrive here.

Contact us for further advice if you want to claim Child Tax Credits or Child Benefit.

Who is exempt from the habitual residence test?

Some people are exempt from the habitual residence part of the test and do not have to show that they are habitually resident.

You may be exempt if you:

are a refugee or have been granted discretionary leave or leave under humanitarian rules

have been granted leave under a domestic violence concession

are not subject to immigration control and have been deported, expelled or removed from another country to the UK

are an EEA worker or an EEA self-employed person, or a family member of that person

are an EEA national who has worked in the UK but is now unable to work because of incapacity, or involuntary unemployment, or you have retired, or you are the family member of that person.

You are not exempt from the test if you are a jobseeker.

Find out more about habitual residence testing:

What is the habitual residence test?, and other resources from the Citizens' Advice Bureau

Gov.uk resource for EEA nationals

-- 4.88 These are the areas you will need to ask about: --

• Length and continuity of residence

• Where have you lived during the last 5 years?

• If you have lived in more than one country, how long did you spend in the different countries?

• Have you ever lived in the UK before? If so, how long for and how did you support yourself?

• Employment

• When the claimant has a job, find out:

• their job title;

• how long they have been employed;

• if there is fixed-term contract; and

the pattern of a normal working week.

When the claimant has worked in the past, find out:

• how many different jobs they have had;

• how long each lasted;

• their reasons for leaving; and

• what steps they are taking to find new employment.

When the claimant is a work seeker, find out:

• if they have been offered a job;

• what enquiries they made about job availability in the UK;

• if their job prospects are better in the UK than the country just left;

• what steps they have taken to find work;

• if they have registered with a Job Centre; and

• what qualifications they have appropriate to working in the UK.

When the claimant worked before coming to the UK find out:

• what their last job was;

• why they left;

• if the job is still available; and

• what prospect there is of finding similar work in the UK.

Reasons for coming to the UK

If the claimant came to the UK to look for work, find out:

• what preparations were made before coming to the UK;

• if they had established that work would be available here;

• their intentions for financial support in the meantime.

If the claimant came to the UK for another reason then find out as much information as possible.

For example it might be for a holiday, to visit friends/ relatives, or to study.

Future Intentions

• How long are they intending to stay?

• Will they still have links with any other countries?

• If so, how often and for how long are they planning to visit that country?

Centre of Interest

• Where are all their belongings/personal possessions?

• If not in the UK, how do they plan to transport them over?

• Do they have family already living in the UK? (If the claimant has a partner or children who aren’t living with them get details)

• Do they have relatives in the UK?

• Do they own property anywhere?

• Have they made any substantial purchases since arriving in the UK?

As noted above, people who were previously habitually resident in the Common Travel Area and who return to resume their habitual residence may be accepted as habitually resident from the date of their return. This does not mean, however, that all those returning to the UK after a period abroad will be considered habitually resident from the date they return. The decision maker will have to decide whether the person is in fact resuming a previous residence. The Department for Communities and Local Government has recently published a Homelessness Code of Guidance for Local Authorities30 which gives the following guidance to decision makers on this question:

Why has the applicant come to the UK?

If the applicant is returning to the UK after a period spent abroad, and it can be established that the applicant was previously habitually resident in the UK and is returning to resume his or her former period of habitual residence, he or she will be immediately habitually resident.

In determining whether an applicant is returning to resume a former period of habitual residence authorities should consider:

• when did the applicant leave the UK?

• how long did the applicant live in the UK before leaving?

• why did the applicant leave the UK?

• how long did the applicant intend to remain abroad?

• why did the applicant return?

• did the applicant’s partner and children, if any, also leave the UK?

• did the applicant keep accommodation in the UK?

• if the applicant owned property, was it let, and was the lease timed to coincide with the applicant’s return to the UK?

• what links did the applicant keep with the UK?

• have there been other brief absences? If yes, obtain details

• why has the applicant come to the UK?

Decision makers’ guide: staff guide

https://www.gov.uk/government/colle...

Homelessness code of guidance for councils: July 2006

https://www.gov.uk/government/publi...

DWP memorandum in SSAC press release, 9 August 2006:

http://www.ssac.org.uk/pdf/HabRes_E...