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
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
do they have the right to reside?
are they habitually resident?
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.
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
current passport
birth certificate
certificate from the Home Office confirming the grant of citizenship
The second step of the HRT, to show they habitually resident is applied as now, see Habitual Residence Test.
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.
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
were working in the UK in the 12 months before retirement
have lived in the UK for the last three years
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
people still in the labour market need to provide confirmation they have been or are working in the UK
payslips
a contract of employment
a letter of employment to confirm they have been or are working in the UK
retired people need to provide evidence of working in the UK in the 12 months before retirement and living in the UK for the last three years
payslips
P60s
a letter from their previous employer
utility bills
Council Tax bills
people who are unable to work due to a permanent incapacity need to provide evidence showing they have lived and worked in the UK for more than two years
utility bills
rent agreements
payslips
employment contract
EEA 16 and A2 Nationals with worker status are exempt from the HRT.
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
an ID card
passport
residence permit
EEA Family Permit if they are non-EEA Nationals
They will also have to provide proof of their family relationship, eg marriage certificate in the case of a spouse or birth certificate.
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
they are genuinely seeking work
that the work sought is genuine and effective work, eg details of
job applications made
the type of work sought
Note: Consider if the type of work sought is available and how long they have been seeking that work
that they have reasonable prospects of being employed
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
an ID card
passport
residence permit, if they have one
Evidence of their self-employment should include the following
audited accounts
bank statements
business lease
invoices
This group is exempt from showing they are habitually resident.
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
an ID card
passport
residence permit
EEA Family Permit if they are non-EEA Nationals
They also have to provide proof of their family relationship, eg marriage certificate in the case of a spouse or birth certificate.
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.
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.
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
lone parents
single people who are looking after foster children
people who are temporarily looking after another person
people with caring responsibilities are eligible for benefits whilst they are students
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 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
anyone who doesn’t fall into one of the exempt categories
anyone who takes up employment on or after 1 May 2004
anyone who has been working illegally prior to 1 May 2004 who wants to regularise their position
anyone who has been working legally in their current job for less than 12 months on 1 May 2004 and who changes their job before they complete 12 months in that job
A8 worker’s dependents who find work
students who wish to have worker status
people who are working part-time
people who are registered with employment agencies or labour providers for temporary or short-term employment. Note: They has been required to register each time they start a new job. The person who pays the worker has been the employer which may not be the employment agency or labour provider
They need to provide the following evidence to confirm their status
Worker Registration Card
Worker Registration Certificate, only valid whilst the holder is employed by the employer named on it and only has the start date. Check with the employer to confirm the holder is still employed
a passport or ID card
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.
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
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 more than one Worker Registration Certificate. Contact all the employers to confirm the dates of employment as only the start date is on the certificate
passport or ID card
Workers exempt from registering with the Home Office scheme include
anyone who is working legally on 1 May 2004, including those who have been working less than 12 months who do not change their jobs after 1 May
anyone who is already working in the UK on a work permit or other scheme or who has no restrictions on working in the UK, ie Code 1 immigration entry code on their passport.
self-employed people, see Self-employed people
They need to provide the following evidence to confirm their status
passport or ID card
letter from employer confirming dates of employment
work permit
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
an ID card or passport
evidence to support their relationship to the worker, eg birth certificate or marriage certificate for a spouse.
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
passport or ID card
Worker Registration Card, if started work after 1 May 2004
Worker Registration Certificate, if started work after 1 May 2004
You also need to check 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 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
passport
ID card
Evidence of their self-employment should include
audited accounts
bank statements
business lease
invoices
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 have the right to reside if they are self-sufficient whilst looking for work.
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 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 who have been given Leave to Remain in the UK have the right to reside in the CTA, ie people with
Refugee Status with Indefinite Leave To Remain
Exceptional Leave To Remain
Humanitarian Protection
Discretionary Leave To Remain
the Gateway Refugee Resettlement Programme
To confirm their status they need to provide one of the following
a passport containing the immigration stamp granting them leave
Home Office decision letter granting them leave
Home Office vignette granting them leave to remain
They are exempt from the second part of the Habitual Residence Test.
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
passport containing the immigration stamp granting them leave
Home Office decision letter granting them leave
Home Office 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 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
passport
a copy of the maintenance undertaking
a copy of their sponsor(s) death certificate
Sponsored immigrants who claim after they have been in the UK for more than five years only need to supply
their passport
a copy their maintenance undertaking
They are not subject to the second step of the HRT.
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
passport with immigration stamp showing entry conditions
a letter from their bank or other source of funding confirming their temporary lack of funds
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.
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.
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
who is entitled to HB/CTB on 30 April 2004, they are not affected by the changes introduced by the new regulations for the duration of the claim
who makes a claim for HB/CTB on or after 1 May 2004 and it is subsequently determined that their entitlement covers the period including 30 April 2004, they are protected for the duration of the claim
whose entitlement to HB/CTB is continuous with a period of entitlement to the same or any other specified benefit and the period includes 30 April 2004, they are protected for the duration of their claim. Renewal claims for HB/CTB which are continuous with a claim which includes 30 April 2004 are protected. The specified benefits are IS, JSA(IB), Pension Credit, HB/CTB
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.
Click on the link below to view the rules for Ghurkas