The Habitual Residence Test

The Habitual Residence Test has changed from 1st May 2004 due to the EU enlargement.

The new rules are show below - rules prior to this date can be seen by clicking the link below:

HRT rules prior to 1st May 2004

Peease note that amendments have been made to the Habitual Residence Test from 30th April 2006 in line with new EC directives.

Please click on the link to view the changes

Habitual Residence Test Changes from 30th April 2006

Habitual Residence Test Changes from July 2006 - Lebanon

Habitual Residence Test from 1 May 2004

From 1 May 2004 a new step has been introduced into the HRT which will require all claimants, including UK Nationals, to show that they have a right to reside in the CTA if they have arrived in the UK in the two years before claiming HB and/or CTB.

This new test will be applied before any other benefit entitlement conditions are considered on all new and repeat claims made from 1 May 2004. Anyone who fails to show that they have a right to reside in the CTA will not be eligible for HB/CTB.

All claimants who satisfy the right to reside test will also have to show that they are habitually resident in the CTA, unless they are exempt from the test. This part of the HRT has not changed and the rules on deciding habitual residence continue to apply. Anyone who fails to satisfy this part of the HRT will not be eligible for HB/CTB.

This means that two questions have been asked under the HRT for some claimants before any other eligibility conditions for HB and/or CTB are considered

How is the test applied?

The following sections set out how the new test has been applied to different groups of claimants. Before the test is applied, it has been necessary to identify the claimant’s nationality and, if they are EEA Nationals, their economic status.

UK Nationals

Returning UK Nationals or a UK passport holder coming to the UK for the first time will have to satisfy both steps of the HRT. They need to provide one of the following to confirm they have a right to reside, a

The second step of the HRT, to show they habitually resident is applied as now, see Habitual Residence Test.

Nationals of EEA 16 and A2 Countries

EEA 16 and A2 Nationals can derive their right to reside from EC law, see Definitions. They need to provide an ID card, passport, or a residence permit, if they have one, to confirm that they are EEA 16 and A2 Nationals. Residence permits 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, see below.

Workers

EEA 16 and A2 Nationals who are working in the UK have the right to reside under an EC directive as a worker. The work they are doing must be genuine and effective. If they are no longer working because their employment has ended, as long as they are still in the labour market, ie they are looking for new employment, they retain their status as a worker.

People who have retired retain their worker status if they

People who leave work because they are permanently incapacitated retain their worker status if they have been resident in the UK for more than two years.

They also need to provide additional evidence as follows to confirm their status

EEA 16 and A2 Nationals with worker status are exempt from the HRT.

Family members (see also Family Reunion)

EEA 16 and A2 Nationals who have worker status are allowed to bring their families with them to live in the UK. As a member of an EEA 16 and A2 worker’s family they have the right to reside in the UK and are exempt from the HRT. They need to provide one the following to confirm their status

They will also have to provide proof of their family relationship, eg marriage certificate in the case of a spouse or birth certificate.

 Work seekers

EEA 16 and A2 Nationals who are work seekers have the right to reside in the UK for six months or longer if they are genuinely seeking work. The work sought must also be genuine and effective, . They are required to satisfy the second stage of the HRT.

As well as providing evidence to support their right to reside as above they also need to provide evidence to show

Self-employed people

EEA 16 and A2 Nationals who are self-employed are allowed to come to the UK to establish themselves in employment and have a right to reside under EC law. They need to provide one of the following as evidence of their right to reside

Evidence of their self-employment should include the following

This group is exempt from showing they are habitually resident.

Family members

Self-employed people are allowed to bring their families to live with them in the UK. As a member of a self-employed person’s family they have the right to reside in the UK and are exempt from the HRT. They need to provide one the following to confirm their status

They also have to provide proof of their family relationship, eg marriage certificate in the case of a spouse or birth certificate.

Inactive people

Pensioners and lone parents

EEA 16 and A2 Nationals who do not have a right to reside under any other EC directive, such as retired people or lone parents, are also allowed to come and live in the UK. They have the right to reside here as long as they are self-sufficient and do not become an unreasonable burden on public funds. EC directives stipulate that resources shall be deemed sufficient when they are higher than the level of resources below which the host Member State may grant social assistance to its nationals, taking into account the personal circumstances of the applicant and, where appropriate, their dependants.

The fact that a person has no prospect of finding work or becoming self-sufficient may be considered an unreasonable burden on the state. Each case has been considered on its merits and considerations will include the length of time they are likely to be dependent on public funds. If a claim for benefits is made by an EEA inactive they would need to demonstrate that their private funds would resume before long and that they would not be an unreasonable burden on public funds

They are subject to the second stage of the Habitual Residence Test.

Family members

Retired EEA 16 and A2 Nationals may bring their family members with them to live in the UK but they must support them without recourse to public funds during their period of residence.

Students

EEA 16 and A2 Nationals have a right to come to the UK to study under an EC directive which gives them a right to reside as long as they do not become an unreasonable burden on the social security system. They do not lose their right to reside if they claim an income-related benefit however, under normal benefit rules they are unlikely to be eligible. They are allowed to bring their spouse and any dependant children with them as long as they can support them. Most students are ineligible for income-related benefits if they are studying full-time.

However, there are some exceptions

 They need to provide

    • an ID card or passport as evidence of their nationality

    • a letter from the college confirming ­

      • they are registered

      • ­ enrolled on a course

      • the type of course they are following

They are subject to the second stage of the Habitual Residence Test.

A8 Nationals

Workers

A8 Nationals who are working legally, ie registered with the Home Office Worker Registration Scheme have the right to reside in the UK. The people required to register as a worker from 1 May 2004 are

They need to provide the following evidence to confirm their status

They are exempt from the second part of the HRT. They will only be able to claim income-related benefits whilst they are working because they lose their right to reside once they stop working.

Worker: post 12 months

Once a worker, who is registered with the Worker Registration Scheme, has worked for a period of 12 months’ uninterrupted 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 have been completed they will no longer be required to register as a worker.

You will need to calculate the number of months someone has been employed to confirm they have had 12 months continuous employment from the first date they started work. Anyone who has been out of work for more than 30 days during this 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.

They need to provide the following documents to confirm their status

Exempt workers

Workers exempt from registering with the Home Office scheme include

They need to provide the following evidence to confirm their status

 Family members

Family members of A8 registered workers will have the same rights as the family member of an EEA 16 and A2 worker whilst the A8 worker is in work. They need to provide

Part-time workers

People who are working are required to register with the Worker Registration Scheme. The rules are the same as those for full-time workers, see Workers. The same exceptions apply. They need to provide the following to confirm their status

You also need to check the part-time work is genuine and effective.

A8 Nationals Self-employed people

A8 Nationals who are self-employed have the same rights as EEA 16 and A2 Nationals who are self-employed and has been able to claim HB/CTB whilst they are working. They are not required to be registered under the Worker Registration Scheme. If they stop being self-employed they has been required to be self-sufficient and not become an unreasonable burden, see Definitions. They need to provide the following evidence to confirm their status

Evidence of their self-employment should include

Family members

Family members of self-employed people have access to income-related benefits whilst the A8 National is working as a self-employed person. They need to provide an ID card or passport and also proof of their relationship to the self-employed person, eg birth certificate, marriage certificate for a spouse.

 A8 Nationals Work seekers

A8 Nationals have the right to reside if they are self-sufficient whilst looking for work.

A8 Nationals Inactive people (such as Pensioners and lone parents)

A8 nationals who are economically inactive are treated in the same way as EEA 16 and A2 Nationals, see Nationals of EEA 16 and A2 Countries, Inactive people.

ECSMA Nationals

ECSMA Nationals who have been given limited leave to remain, not temporary admission, will have the right to reside. They need to provide a passport showing their entry clearance or visa showing their leave to remain. They are subject to the second stage of the HRT. See European Convention on Social and Medical Assistance (ECSMA).

People with Leave to Remain

People who have been given Leave to Remain in the UK have the right to reside in the CTA, ie people with

To confirm their status they need to provide one of the following

They are exempt from the second part of the Habitual Residence Test.

 People with Indefinite Leave to Enter/Remain

People with Indefinite Leave to Enter/Remain are subject to both stages of the Habitual Residence Test if they have come to the UK in the last two years. As well as providing one of the following documents, they need to show that they are habitually resident

Sponsored immigrants

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 then they cannot claim benefits until they have been in the UK for five years unless both sponsors die.

Sponsored immigrants who claim HB/CTB because their sponsor(s) dies before they have been in the UK for five years need to provide

Sponsored immigrants who claim after they have been in the UK for more than five years only need to supply

They are not subject to the second step of the HRT.

People temporarily without funds

People who have limited leave to remain in the UK and have no recourse to public funds are allowed to claim HB/CTB when they are temporarily without funds or remittances from abroad have stopped temporarily. There must be a reasonable expectation that the supply of funds will resume within three months. The payment of HB/CTB is limited to 42 days in any one period of leave.

To confirm their eligibility for HB/CTB in these circumstances claimants need to supply

Asylum seekers currently supported by NASS and LAs

From 1 May 2004 National Asylum Seeker’s Service (NASS) and LAs will withdraw support from asylum seekers who are nationals of the EU Accession Countries. They will not be given the usual 28 day grace period nor will a NASS35 be issued. The asylum application process may not have been completed for some of these people so they will not have been given any form of leave to remain. However, as they are EEA Nationals they will have the right to remain in the UK to seek work, if they are self-sufficient, or as a registered worker if they are from an A8 country. As they are not in receipt of an income-related benefit on 30 April 2004 they are not covered by the Transitional Protection regulations.

LAs can help any families or single asylum seekers who want to return to their home country. People with children will also be provided with temporary accommodation and a return ticket home. Single people will only be provided with a ticket home.

Identifying ex-asylum seekers

NASS will issue letters notifying asylum seekers of the withdrawal of their support and accommodation from 30 April 2004. The letters include a leaflet giving them information about their rights as EU citizens and the worker registration scheme. Further information about this group has been issued later.

Transitional Protection from 1 May 2004

The following people including A8 Nationals who are claiming and in receipt of HB/CTB on 30 April 2004 will continue to be entitled on 1 May even if they are in one of the excluded groups. This protection applies to anyone

 Centralised Decision Making and Help Line

DWP recommend that you centralise Decision Making on these claims within your LA and nominate one Decision Maker and one reserve per LA. This should minimise the amount of training needed and assist in consistency of Decision Making.

A dedicated help line has also been set up for LA Decision Makers who need advice about dealing with a claim from economically active A8 Nationals or nationals from other EEA States (including Cyprus and Malta). This help line is only for LA’s use and should only be used if the query cannot be resolved using the guidance provided. The telephone number is: 0845 377 0658.

Habitual Residence Test for Ghurkas

Click on the link below to view the rules for Ghurkas

Gurkhas