On 30 April 2006 the EC Directive 2004/38 on the rights of free movement in the European Community (EC) was transposed into UK legislation.
The new Directive brings together existing EC directives on free movement as well as introducing new rights of residence for EC nationals.
The most significant change is the introduction of a right of residence for the first three months to everyone, including economically inactive people, without the requirement to be self-sufficient.
This new right undermines the intention of the policy for IS, JSA(IB), State Pension Credit, HB and CTB, that no economically inactive EC national will satisfy the additional step within the HRT.
It undoes the effect of the changes made on 1 May 2004, and allows more people access to benefits than was previously intended.
As a result the IS, JSA(IB), State Pension Credit, HB and CTB regulations have been amended with effect from 30 April 2006.
The HRT prior to 30th April treats all European Economic Area (EEA) nationals, ie nationals of EC Member States plus nationals of Norway, Iceland and Liechtenstein in the same way.
Swiss nationals are also treated as if they are EEA nationals for certain purposes.
Although the new Directive presently only applies to EC nationals, it is expected that eventually, the Directive will be extended to apply to all EEA nationals.
However, a provision is in place which is designed to maintain the existing position for nationals from Norway, Iceland and Liechtenstein.
The provision is also designed to maintain the existing practice for Swiss nationals. This maintains the policy intent that the HRT does not treat EEA nationals who are not EC nationals differently to other EEA nationals.
A new permanent right of residence is provided for under Article 16 of the Directive for EEA nationals and their family members who are EEA nationals if they have legally resided in the UK for a continuous period of five years. Family members who are not EEA nationals have the same right provided they have resided with the EEA national in the UK for a continuous period of five years.
A8 and A2 nationals will gain a permanent right of residence once they have lived in the UK for five years from 1 May 2004, any periods of residence before that date will not be taken into account.
The HRT is a two stage test, the first part is a test of the right to reside in the UK or the other area of the CTA and the second part is a test of habitual residence in the place where right of residence is held. The test is applied to people who have arrived or returned to live in the UK within two years of claiming IS, JSA(IB, State Pension Credit, HB and CTB.
As from 30 April 2006, not every right to reside will satisfy the first part of the HRT. These non-qualifying rights to reside are the right to reside held by EEA nationals and their family members
for the first three-months of residence
when the EEA national is a work-seeker
Habitual residence is not defined in law and each case must be considered on its own merits. When applying the second part of the test decision makers take into account various factors including reasons for coming to the UK, any previous work in the UK and intention to remain.
The Social Security (Persons from Abroad) Amendment Regulations 2006 further amend the test with effect from 30 April 2006. These amendments retain the basic structure of the post 1 May 2004 test.
There is now a right to reside component and a habitual residence component. However, because the new Directive provides a new right of residence, from 30 April 2006 claimants with certain rights to reside will no longer satisfy the right to reside aspect of the HRT.
The amended test will be applied to all new and repeat claims made from 30 April 2006. There are no transitional provisions but some customers may still be covered by the transitional provisions in the Social Security (Habitual Residence) Amendment Regulations 2004.
The following parts of the manual set out how the new regulations are applied to different groups of customers.
It is necessary to identify
the customers’ nationality
if they are EEA nationals
their economic status before the HRT is applied
Except in certain circumstances, a UK or Irish national (or passport holder) returning to the UK or coming to the UK for the first time has to satisfy both steps of the HRT. They will need to provide one of the following to confirm they have a right to reside, a
current passport
birth certificate
certificate from the Home Office confirming the grant of citizenship or the Irish equivalent
They will also need to satisfy the second part of the HRT.
A UK or Irish national who has exercised EC Treaty rights to live and work in another member state can be treated as an EEA national with worker status on their return to the UK if they have returned to work. In these circumstances the person is exempt from the second part of the HRT.
Family members of UK or Irish nationals who have exercised EC Treaty rights have a right to reside and are exempt from the second part of the HRT.
If the family member of the UK or Irish national is their spouse or civil partner, the marriage or formation of civil partnership must have taken place and the parties lived together in the EEA state where the UK or Irish national had been employed (not on a transient or casual basis) before their return to the UK. A spouse/civil partner will retain that status if separated or divorced but an unmarried partner will not retain this right if the couple separate. Family members will need to provide all the following to confirm their status
an ID card or passport
an EEA family permit (if they are a non-EEA national), and
proof of their relationship to the UK national (marriage/civil partnership/birth certificate
EEA 16 and A2 nationals continue to derive their right to reside from EC law but these rights may have changed under the new Directive.
They will need to provide an ID card, passport or an EEA Registration certificate (if they have one) to confirm that they are EEA16 or A2 nationals.
Registration certificates are issued to EEA nationals on application and are not a requirement of law. They will also need to provide evidence to confirm their status.
Workers continue to have a right to reside under the new Directive and will be exempt from both parts of the HRT. However, as now they will need to demonstrate that they have gained workers status or have retained it. Changes as a result of the new Directive mean that from 30 April 2006 worker status will only be retained if the EEA16 or A2 national is
in continuous employment in the UK for at least one year before becoming involuntarily unemployed and is registered as a jobseeker with Jobcentre Plus
involuntarily unemployed after completing a fixed-term employment contract of less than a year, or after having become involuntarily unemployed during the first twelve months and is registered as a jobseeker with Jobcentre Plus. In such cases the status of worker shall be retained for no less than six months
involuntarily unemployed and has started vocational training
voluntarily unemployed but have started vocational training linked to their previous employment, or
temporarily unable to work as the result of sickness or an accident
People who have reached retirement age or who have retired, obtain a right of permanent residence if they were working in the UK for the 12 months before retirement and have lived in the UK continuously for more than three years.
People who leave work because they are permanently incapacitated obtain a right of permanent residence if they have been living and working in the UK for more than two years. Such a right is also obtained without this two year residence requirement if the incapacity is the result of an accident at work or occupational illness and a disability pension is payable to them.
People with these rights of permanent residence are exempt from the HRT.
In order to establish that they are exempt from the HRT they will also need to provide additional evidence as follows to confirm their status
people still in the labour market will need to provide payslips and a contract/letter of employment to confirm they have been or are working in the UK for a year or more or evidence to show that they are seeking employment
retired people will need to provide evidence of working in the UK in the 12 months before retirement and of having lived in the UK for the last three years. They will also need to provide, firstly, payslips, a P60 and a letter from their last employer, and secondly, proof of residence over the last three years such as utility or Council Tax bills
people who are unable to work due to a permanent incapacity will need to provide evidence to show that they have lived and worked in the UK for more than 2 years, eg utility bills or rent agreements, payslips and an employment contract. In certain circumstances such as leaving due to an industrial accident or injury, the 2 year residence condition will not apply and proof of receipt of a disability pension will suffice
EEA16 and A2 nationals who have worker status are allowed to bring their families including, in some circumstances, their extended family members with them to live in the UK, see Definitions for more information about family members and extended family members.
As a member of an EEA16 or A2 worker’s family they have a right to reside in the UK and are exempt from the HRT. Extended family members will have a right to reside in the UK if they satisfy the conditions in the Home Office 2006 EEA Regulations, but will have to satisfy the second part of the HRT. EEA family members/extended family members will need to provide the following to confirm their status
an ID card or passport
EEA Registration certificate, or EEA Family permit (if they are a non-EEA national)
proof of their family relationship, eg marriage/civil partnership certificate in the case of a spouse/civil partner or birth certificate for a dependant
Work seekers have a right to reside under Article 39 of the EC Treaty, under the new Directive and the Home Office 2006 EEA Regulations. Work seekers are able to claim JSA(IB). They cannot claim IS or State Pension Credit on the basis of a right to reside under Article 39 of the EC Treaty, Article 6 of the new Directive or the equivalent provisions in the Home Office 2006 EEA Regulations. In claiming JSA(IB) they must also satisfy the second part of the HRT, ie actual habitual residence. Their right to reside is for an initial period of six months unless they can show that they are genuinely seeking work and have a reasonable chance of being engaged.
Work seekers on JSA(IB) will be passported through the HRT for HB and CTB. Work seekers who are not on JSA(IB) will not be passported through the HRT for HB and CTB. Their right to reside as a work seeker is a non-qualifying right to reside when claiming HB or CTB only.
EEA16 and A2 nationals who have work seeker status are allowed to bring their families and, in some circumstances, extended family members with them to live in the UK, see Definitions for more information about family members and extended family members. For the purposes of JSA(IB), as a member of an EEA16 or A2 work seeker’s family they have a right to reside in the UK but must satisfy the second part of the HRT.
Such a family member on JSA(IB) will be passported through the HRT for HB or CTB. Family members of work seekers who are not on JSA(IB) will not be eligible for HB/CTB or any income-related benefit, on the basis of that right to reside alone. EEA family members/extended family members will need to provide all the following to confirm their status
an ID card or passport
EEA Registration certificate, or EEA family permit, if they are a non-EEA national, and
proof of their family relationship, eg marriage/civil partnership certificate in the case of a spouse or civil partner or birth certificate for a dependant
EEA16 and A2 nationals who are self-employed are allowed to come to the UK to establish themselves in work and have a right to reside under the new Directive.
Self-employed people and their family members have the same rights as workers and their family members. They will need to provide one of the following documents as evidence of their right to reside
an ID card
passport
EEA Registration certificate, if they have one, and
evidence of their self-employment, which should include the following
audited accounts
bank statements
business lease
invoices
This group is exempt from the second step of the HRT.
Self-employed people are allowed to bring their families and extended family members with them to live in the UK.
Family members of a self-employed person will have a right to reside in the UK and are exempt from the second part of the HRT. Extended family members will have a right to reside in the UK if they satisfy the conditions in the Home Office 2006 EEA Regulations, but will have to satisfy the second part of the HRT They will need to provide one of the following documents to confirm their status, an
ID card or passport
EEA Registration certificate, if they have one, or
EEA family permit, if they are a non-EEA national, and
proof of their family relationship, eg marriage or civil partnership certificate if spouse/civil partner or birth certificate if a dependant
They will also need to provide evidence to show that the EEA16 or A2 national is working as a self-employed person.
Under the new directive EEA16 and A2 nationals who come to the UK neither to work nor to look for work, eg as a retired person or in some other economically inactive capacity, have a right to reside as long as they are self-sufficient.
They must show that they have sufficient resources and medical insurance to avoid becoming a burden on the UK social assistance system during their period of residence.
From 30 April 2006 under Article 6 of Directive 2004/38/EC, EEA16 and A2 nationals have a right to reside during the first three months of residence without the requirement to be self-sufficient.
However, from 30 April 2006, this Article 6 right is a non-qualifying right to reside for the purposes of income-related benefit legislation. This means that EEA16 and A2 nationals who only have a right to reside under this article will not be eligible for IS, JSA (IB), State Pension Credit, HB or CTB. This is because the UK is not required to provide social assistance during this initial three month period.
Inactive EEA16 and A2 nationals may bring their family members and, in some circumstances, extended family members with them to live in the UK but must have sufficient funds to support them during their period of residence.
EEA16, A2 and A8 nationals have a right to come to the UK to study as long as they do not become a burden on the social assistance system. They are allowed to bring their spouse/civil partner and any dependent children with them as long as they can support them. In some circumstances they can also bring their extended family members.
Under normal benefit rules students are unlikely to be eligible for an income-related benefit. However, there are some exceptions. Students may be eligible if they are
lone parents
single people who are looking after foster children
people who are temporarily looking after another person
people with caring responsibilities
People who are from the Eight Accession Countries (EAC), ie A8 nationals
Since 1 May 2004, the Home Office has operated the Worker Registration Scheme for A8 nationals.
A8 nationals who require registration have the right to reside when they are working for an authorised employer. A8 nationals who are working legally, ie registered with the Home Office Worker Registration Scheme, have a right to reside in the UK. A8 nationals required to seek registration as a worker since 1 May 2004 are as follows
anyone who doesn’t fall into one of the exempt categories, see Exempt workers and Appendix A
anyone who takes up employment on or after 1 May 2004
anyone who was working illegally prior to 1 May 2004 who wanted to regularise their position
anyone who was working legally in their current job for less than 12 months on 1 May 2004 and who changed their job before they completed 12 months in that job
dependents of A8 workers who find work
people who are working part-time
people who are registered with employment agencies or labour providers for temporary or short-term employment. 
They are required to register each time they start a new job. The person who pays the worker will be the employer which may not be the employment agency or labour provider.
A8 workers will need to provide the following evidence to confirm their status
Worker Registration Card
Worker Registration Certificate. The Worker Registration Certificate is only valid whilst the holder is employed by the employer named on it and will only have the start date. You will need to check with the employer to confirm whether the holder is still employed, and
a passport or ID card
If an A8 national requiring registration ceases employment during the first month of employment, that worker remains a ‘worker’, ie a qualified person, for the rest of the month and has the right to reside for the rest of the month if employment ceased because they are
temporarily incapable of work as a result of illness or accident, or
involuntarily unemployed, and that fact is duly recorded by the relevant unemployment office
They will need to provide proof from the employer that the work ended involuntarily.
A8 workers are exempt from the HRT. They will only be able to claim income-related benefits whilst they are working for the employer named on their Worker Registration Certificate. They will lose their right to reside as a worker once they stop working, subject to the circumstances mentioned in Inactive people, ie Students and Workers. If they become
a self-employed person
a work seeker
an inactive person
Once an A8 national has legally worked in the UK without interruption for a period of 12 months’ they will have the same rights and access to income-related benefits as EEA 16 nationals. A worker must not be out of work for more than a total of 30 days in the 12 month period. Once the 12 months’ uninterrupted work has been completed they will no longer be required to register as a worker. They will only retain their worker status if they claim JSA, unless they are temporarily sick or have had an accident which temporarily prevents them working.
You will need to calculate the number of months someone has been employed to confirm they have had 12 months uninterrupted employment from the first date they started work. Anyone who has been out of work for more than 30 days during these 12 months will not have completed 12 months uninterrupted employment.
The 30 day period at the start of the first period of registration is not included, ie whilst they are awaiting the processing of their Worker Registration Card.
This group will need to provide the following documents to confirm their status
Worker Registration Card
Worker Registration Certificate(s). Someone who has been employed for 12 months or more may have had more than one employer and therefore will have more than one Worker Registration Certificate. You will need to contact all the employers to confirm the dates of employment as only the start date is shown on the certificate
passport or ID card
Workers exempt from registering with the Home Office scheme include the following
any A8 national who was legally working on 30 April 2004 and
had done so without interruption for 12 months
is still working for the same employer
anyone who was already working in the UK on a work permit or other scheme or
who had no restrictions on working in the UK, ie Code 1 immigration entry code on their passport
self-employed people,
They will need to provide the following evidence to confirm their status
passport or ID card, and
one or more of the following documents
- letter from employer confirming dates of employment, if employed
- work permit, if they have one
- audited accounts, if self-employed
Family members and extended family members of A8 registered workers have the same rights as the family member and extended family members of an EEA 16 and A2 worker whilst the A8 worker is in work. They will need to provide
an ID card or passport, and
evidence
- to support their relationship to the worker, eg birth certificate or marriage certificate/civil partnership agreement for a spouse/civil partner, and
- that the A8 national is in work
People who are working part-time are required to register with the Worker Registration Scheme and become ‘registered workers’. Part-time workers do have the right to reside as they are ‘registered workers’, and are therefore able to claim JSA (IB), HB and CTB provided they meet the conditions of entitlement to these benefits. They cannot claim IS.
The rules are the same as those for full-time workers. The same exceptions also apply. You will need to see the following evidence to confirm their status
passport or ID card, and
if started work after 1 May 2004, a
- Worker Registration Card
- Worker Registration Certificate
You will also need to check that the part-time work is genuine and effective.
A8 nationals who are self-employed have the same rights as EEA 16 and A2 nationals who are self-employed, see Self-employed people. However, they will lose their right to reside as a self-employed person if they stop being self-employed. If they become a worker, see Workers. If they become
• a work seeker, see A8 workers
• an inactive person, see A8 inactives
Family members and extended family members of self-employed A8 nationals have the same rights as family members and extended family members of self-employed EEA16 and A2 nationals. They will need to provide
an ID card or passport
proof of their relationship to the self-employed person, eg birth certificate, marriage certificate for a spouse, and
evidence to show that the self-employed person is working
A8 nationals will have the right to reside only if they are self-sufficient whilst looking for work.
A8 nationals do not need permission to seek work in the UK but must register with the Worker Registration Scheme as soon as they find work.
A8 nationals who are economically inactive are treated in the same way as EEA 16 and A2 Nationals Economically inactive people.
For information about family members of A8 inactives, see EEA 16 and A2 nationals, Family members of inactive people.
For information about students, see EEA 16 and A2 nationals, Inactive people, ie students.
The normal rules apply for all Social Fund payments.
When one member of a joint couple would not pass the HRT, the couple are not required to make a joint claim for JSA(IB). The customer who satisfies the right to reside test and is habitually resident in the CTA should make an ordinary JSA(IB) claim as a couple.
People with Leave to Remain have one of the following
Refugee Status
Exceptional Leave To Remain
Humanitarian Protection
Discretionary Leave To Remain, or are part of the
Gateway Refugee Resettlement Programme, ie Indefinite Leave To Remain granted outside the rules
Indefinite Leave To Remain granted through the Families Project
People who have been given Leave to Remain in the UK as shown above have the right to reside in the CTA. To confirm their status they will need to provide one of the following a
passport containing the immigration stamp or vignette granting them Leave to Remain as listed above, or
Home Office
- decision letter granting them Leave to Remain if the customer received a decision before 15 march 2004
- status document with a vignette granting them Leave to Remain if the customer received a decision after 15 March 2004
They are treated as being habitually resident.
The proposed change to income-related benefits is not intended to have any effect on the benefit entitlement of third-country nationals. They will still be required to show that they have a right to reside in the UK before having access to income-related benefits.
People with Indefinite Leave to Enter/Remain have a right to reside. They must satisfy the second part of the HRT if they have come to the UK in the last two years. As well as providing one of the following documents they will need to show that they are habitually resident, a
passport containing the immigration stamp or vignette granting them leave, or
Home Office
- decision letter granting them leave
- status document with a vignette granting them leave
Sponsored immigrants, ie people who have been given Leave to Enter and Remain in the UK as the result of a written maintenance undertaking, have the right to reside in the UK. However, they are not allowed to claim income-related benefits for five years from their date of entry into the UK or from the date the undertaking was signed, whichever is the later, unless their sponsor dies. If they have more than one sponsor, all sponsors must have died.
Sponsored immigrants who claim IS/JSA Urgent Case Payments (UCPs)/State Pension Credit because their sponsor(s) dies before they have been in the UK for five years will need to provide
• their passport, and
• a copy of
- the maintenance undertaking, and
- their sponsors’ death certificate
Sponsored immigrants who claim after they have been in the UK for more than five years will only need to supply their passport and a copy of their maintenance undertaking to confirm their status.
People who have limited Leave to Remain in the UK and have no recourse to public funds are allowed to claim IS/JSA UCPs when they are temporarily without funds because remittances from abroad have stopped. There must be a reasonable expectation that the supply of funds will resume within three months. The payment of UCPs is limited to 42 days in any one period of leave.
To confirm their eligibility for UCPs in these circumstances claimants will need to supply
passport with immigration stamp showing entry conditions, and
a letter from their bank or other source of funding confirming their temporary lack of funds
The following people including A8 nationals who are claiming and in receipt of IS, JSA(IB) and contribution based JSA(Cont), State Pension Credit, HB and CTB up until 30 April 2004 will continue to be entitled after 1 May 2004 even if they are in one of the excluded groups. This protection will apply for anyone who
was entitled to IS, JSA (IB), JSA(Cont), State Pension Credit, HB or CTB on 30 April 2004, they will not be affected for the duration of that claim by the changes introduced by the new regulations
claimed for IS, JSA (IB), JSA(Cont), State Pension Credit, HB, CTB on or after 1 May 2004 and it is subsequently determined that their entitlement covers the period which includes 30 April 2004, they are protected for the duration of the claim
claimed IS, JSA(IB), JSA(Cont), State Pension Credit, HB or CTB on or after 1 May 2004 and it is subsequently determined that they are entitled to that benefit for a period that is continuous with a period of entitlement to the same or another of those specified benefits which includes 30 April 2004 they are protected for the duration of their claim. For example someone who was in receipt of IS on 30 April 2004 who then claims State Pension Credit after 1 May 2004 for a period which is continuous with their IS claim is protected for both claims. Repeat claims for HB and CTB which are continuous with a claim which covers a period which includes 30 April 2004 are also protected
Specified benefits: IS, JSA(IB), JSA(Cont), State Pension Credit, HB and CTB.
claimed JSA(IB), JSA(Cont) on or after 1 May 2004 whose claim links to a previous claim which includes 30 April 2004 is protected throughout the previous claim and the subsequent claim