This page is targeted at housing professionals. Our main site is at www.shelter.org.uk

Habitual residence test

This content applies to England

Information on the habitual residence test which certain applicants must fulfil to be eligible for assistance .

What is the habitual residence test?

A person not subject to immigration control who is not exempt from the habitual residence test must be habitually resident in the Common Travel Area in order to be eligible for housing assistance. Such people will be, for the most part, British citizens and citizens of the Republic of Ireland who have recently arrived in or returned to the UK, but the test will also be applied to EEA nationals with a permanent right to reside acquired through five years' residence.

The Common Travel Area comprises the UK, the Channel Islands, the Isle of Man and the Republic of Ireland.

Note that a person subject to immigration control who has indefinite leave to remain is also subject to the habitual residence test. See: Persons eligible for assistance: non EEA/EU in the section on eligibility for non-EEA/EU nationals.

Housing benefit and universal credit

The information below applies equally to housing benefit and universal credit claimants. Note that a person who is not eligible for homelessness assistance, an allocation or housing benefit/universal credit may qualify for income-based jobseekers allowance, child benefit and child tax credit if they are habitually resident, but social security legislation may impose a more restrictive definition of the test.

Exemptions from the habitual residence test

The following EEA nationals are exempt from the habitual residence test:[1]

  • workers or self-employed persons
  • family members, but not extended family members,[2] of EEA nationals who are classed as workers or self-employed persons
  • those with a permanent right to reside in the UK, as a result of being:
  • a person who is in the UK because s/he was deported, expelled or compulsorily removed from another country to the UK.

Before 31 March 2014

In addition to the above, the following were also eligible for homelessness assistance and exempt from the habitual residence test until 30 March 2014 (people in these categories are generally British citizens or have other rights to enter the UK):[3]

  • a person who left Montserrat after 1 November 1995 because of the effect of the volcanic eruption there
  • during the 'relevant period', a person who left Lebanon because of the armed conflict there
  • during the 'relevant period', certain persons coming to Great Britain from Zimbabwe after accepting resettlement help from the UK government.

Determining habitual residence

Whether a person is habitually resident must be decided according to all the circumstances in each case. The House of Lords held that a person cannot be habitually resident unless s/he has taken up residence in the Common Travel Area and lived in the Common Travel Area for an 'appreciable period'.[4] Each case turns on its own facts, but factors such as bringing possessions, doing everything necessary to establish residence before coming, having a right of abode, and demonstrating durable ties with the country are among the factors that require consideration.

The Homelessness Code of Guidance states that it is important to consider the applicant's stated reasons and intentions for coming to the UK, and if s/he states that s/he intends to live in the UK and not return to the country s/he came from, the intention must be consistent with her/his actions.[5]

Resuming habitual residence

The Code of Guidance states that if an applicant who was previously habitually resident in the UK has returned to the UK to resume her/his former period of habitual residence, s/he is immediately to be classed as habitually resident.[6]The same would apply to habitual residence in the Common Travel Area. The Code gives a list of questions that local authorities should consider when deciding whether an applicant is resuming a former period of residence, including when and why the applicant left the UK, how long s/he intended to be abroad, why s/he has returned, and what links s/he has kept with the UK.[7]

Forced marriage

DWP guidance (relating to housing benefit claims) provides that victims of 'forced marriage' do not lose their habitual residence in the UK and are therefore viewed as being habitually resident from the outset of their claim. This refers to individuals who have been removed from the UK where they are normally resident, (or who have left the UK voluntarily, for example for a holiday), and have subsequently been detained abroad against their will. This means that they have been prevented from residing habitually in the UK through no fault of their own.[8]

Guidance on applying the test

The Code of Guidance gives detailed lists of questions that an authority should consider under the following headings:[9]

  • why the applicant has come to the UK, including whether s/he is resuming previous habitual residence
  • joining family or friends
  • applicant's plans
  • length of residence in another country
  • centre of interest.

General principles

The Code also suggests certain general principles:[10]

  • the test focuses on the fact and nature of residence and not the legal right of abode (although the residence itself must be lawful)
  • to be resident, a person needs to be making a home. It need not be the applicant's only or permanent home, but it must be a genuine home for the time being. A short stay for medical treatment, for example, would not constitute residence and the applicant could not therefore be habitually resident
  • the most important factors are length, continuity and general nature of actual residence rather than intention
  • the practicality of arrangements for residence are a necessary part of deciding whether that residence is settled or habitual
  • people may still be habitually resident during temporary or occasional absences, whether they are short or long.

Other basic principles have been established by case law:

  • in deciding if someone is habitually resident or not, account needs to be taken of all the applicant's circumstances, such as personal ties, stability of employment, past residence and intentions. The applicant must show that s/he has taken up residence in the UK voluntarily and for settled purposes, and that s/he has lived here for a sufficient period of time. What amounts to a sufficient period of time depends on the circumstances of each case[11]
  • where there is a settled purpose, and depending on the specific circumstances, habitual residence may be acquired after a relatively brief period of stay. In one case, a period of one month's residence was considered sufficient[12]
  • where there are factors pointing both for and against habitual residence, the court must weigh them all up, and avoid focusing too narrowly on some factors over others. For habitual residence there must be some degree of integration in a social and family environment[13]
  • a High Court decision dealing with non-EU nationals gives a clear analysis of the habitual residence test in the homelessness context, explaining the need for an appreciable period of time in the UK and a settled intention to return.[14]

Other sources of guidance

Guidance on the habitual residence test is available from various sources:

  • UK case law
  • Upper Tribunal (and previously, Social Security Commissioners') decisions in means-tested benefits cases
  • HB/CTB Circulars and the HB/CTB Guidance Manual[15]
  • The European Commission[16]
  • case law from the European Union.

In UK law, the concept of 'habitual residence' has sometimes been given the same meaning as 'ordinary residence', which features in other legislation. The House of Lords held that 'ordinary' required that the residence should be adopted voluntarily and for a settled purpose. A settled purpose could be for a limited period; there is no need for the person to wish to stay indefinitely. The reasons for the person's presence in the UK could include education, employment, family matters, health, or merely 'love of the place'.[17]

Applications made before 3 April 2018

The current Homelessness Code of Guidance was introduced on 3 April 2018 and the references on this page are to this Code. For applications made before this date, the recommendations of the 2006 Code of Guidance should apply.

Wales

The legislative references and the footnotes on this page reflect the law in England. In Wales, very similar rules made under Welsh legislation apply, but the references may be different. Contact Shelter Cymru for more information about the law in Wales.

[1] reg 6 Allocation of Housing and Homelessness (Eligibility)(England) Regulations 2006 SI 2006/1294 as amended.

[2] see reg 2(3) Allocation of Housing and Homelessness (Eligibility) (England) Regulations 2006 SI 2006/1294.

[3] Allocation of Housing and Homelessness (Eligibility) (England) (Amendment) Regulations 2014 SI 2014/435.

[4] Nessa v Chief Adjudication Officer [1999] 1 WLR 1937.

[5] annex 1, para 5 Homelessness Code of Guidance, MHCLG, Feb 2018.

[6] annex 1, para 7 Homelessness Code of Guidance, MHCLG, Feb 2018; see also Swaddling v Adjudication Officer [1999] All ER (EC) 217.

[7] annex 1, para 8, Homelessness Code of Guidance, MHCLG, Feb 2018.

[8] HB/CTB Circular A22/2010, Department for Work and Pensions.

[9] annex 1, paras 8-21 Homelessness Code of Guidance, MHCLG, Feb 2018.

[10] annex 1, para 3, Homelessness Code of Guidance, MHCLG, Feb 2018.

[11] Nessa v Chief Adjudication Officer [1999]1 WLR 1937, HL.

[12] Re F (A Minor) (Child Abduction) [1992] 1 FLR 548.

[13] Re R (A Child: Habitual Residence) [2014] EWCA Civ 1032.

[14] R (on the application of Paul-Coker) v Southwark LBC [2006] EWHC 497 (Admin).

[15] see part C13 HB/CTB Guidance Manual, DWP; HB/CTB Circular A9/2006.

[16] Practical Guide: The legislation that applies to workers in the European Union, the European Economic Area and in Switzerland, European Commission, November 2012 (updated January 2014).

[17] Shah v Barnet LBC [1983] 2 AC 309; [1983] 1 All ER 226.

Back to top