Universal credit immigration and residence rules

Whether a person can claim universal credit depends on their immigration and residence status.

The groups of people who can claim universal credit are similar to those who are eligible for housing and homelessness assistance. The rules apply in a different way and some of the terminology is used differently from other areas of law.

A person is eligible for universal credit if they are not subject to immigration control, are in Great Britain and are either habitually resident with a right to reside or exempt from habitual residence.

Subject to immigration control refers to people from other countries who either do not have leave to remain in the UK or whose leave is subject to restrictions.[1] These people are usually ineligible for universal credit.

All other claimants must meet the basic condition that they are ‘in Great Britain’.[2] This means that they need to be physically present in Great Britain when making their claim for universal credit.

A person is only treated as being in Great Britain if they are habitually resident, unless they are exempt from the habitual residence test.[3]

The term habitual residence here means that they must both:[4]

• have a qualifying right to reside for benefits purposes

• be actually habitually resident in the Common Travel Area

A person is not eligible for universal credit if they are subject to immigration control as defined in s115 Asylum and Immigration Act 1999.[5]

Under this section a person is subject to immigration control if any of the following apply:[6]

• they require leave to remain in the UK but do not have it

• their leave to remain in the UK is subject to a no recourse to public funds condition

• their leave to remain in the UK was given as a result of a maintenance undertaking

If a person falls into any of these categories, they are usually not eligible for universal credit.

This is not the same definition used in other areas of law, for example in homelessness law. People with indefinite leave to remain are not classed as subject to immigration control for the purpose of universal credit, but are classed as subject to immigration control when making a homeless application.

People subject to immigration control who are eligible

Some groups of people subject to immigration control can claim universal credit if they are either habitually resident or exempt from habitual residence.

A person whose leave is subject to a maintenance undertaking is eligible if either:

• their sponsor has died

• five years have passed since the later of either their date of entry or the date of the undertaking

People from Turkey or North Macedonia can claim universal credit if they are lawfully present in the UK.[7] Lawfully present means they must have some form of leave to remain in the UK. They can claim even if they have a no recourse to public funds condition attached to their leave.[8] Temporary admission, for example on a visitor's visa, is not sufficient.[9]

A person can only pass the habitual residence test if they have a qualifying right to reside for benefits purposes. Certain rights to reside are excluded.[10]

This means if a person is not exempt from the habitual residence test, they are only eligible if both of the following apply:

• they are habitually resident in fact

• they have a qualifying right to reside

Although the regulations refer to the requirement to be ‘in Great Britain’ habitual residence means residence in the Common Travel Area.[11] The Common Travel Area is the UK, the Channel Islands, the Isle of Man and the Republic of Ireland.[12]

Habitual residence

The same legal test for habitual residence applies for eligibility for homelessness assistance.

Unlike some other benefits there is no set period of time that a person must be resident for before being entitled. DWP Advice for decision making based on case law says that a:[13]

• period of between one and three months is likely to indicate habitual residence

• person can be immediately habitually resident if they are returning to resume a former period of residence

Right to reside in benefits law

In benefits law a right to reside is a right to live in the Common Travel Area and has a broad meaning.[14] It includes:

• British and Irish nationals

• Commonwealth citizens with a right of abode

• people with indefinite leave to remain

• people with leave to remain who have recourse to public funds

EU Settlement Scheme and temporary protection

Settled status under the EU settlement scheme is a type of indefinite leave to remain. People with settled status have a right to reside and will be eligible if habitually resident.

Pre-settled status is a form of limited leave to remain and is disregarded as a right to reside for claiming universal credit.[15]

A person with pre-settled status can claim universal credit if they have a relevant right to reside under retained EU law and are either habitually resident or exempt from habitual residence.[16]

The relevant rights to reside are the same as in housing law and include a right to reside as a worker or self-employed person.

The following rights to reside under retained EU law are disregarded for claiming universal credit:[17]

• as a jobseeker

• during the initial three months of residence

• as the primary carer of a dependent British citizen

A person will have temporary protection if they applied to the EU settlement scheme before 30 June but have not yet received a decision. They need to have been resident in the UK in accordance with EU law on 31 December 2020.

A person with temporary protection can claim universal credit if when applying they have a right to reside under retained EU law that makes them eligible.

Late applications to the EU Settlement Scheme and entitlement to benefits

The government guide to the EU Settlement Scheme currently states that people who resided in the UK on 31 December 2020 and missed the 30 June 2021 deadline for applying to the EU Settlement Scheme are not entitled to benefits until they make a valid application to the Scheme. After they apply, their rights are protected until they receive a decision on their application or appeal.

Some groups of people are eligible for universal credit if they are present in Great Britain. They do not need to be habitually resident in the Common Travel Area.

These include:

• refugees[18]

• people with humanitarian protection[19]

• people with discretionary leave under the Migrant victims of domestic abuse concession (previously known as the destitute domestic violence concession) or as a displaced person[20]

• people who have been deported, expelled or compulsorily removed to the UK and are not subject to immigration control[21]

• certain Afghan citizens granted leave under a resettlement scheme or who left in connection with the collapse of the government in August 2021 (from 15 September 2021)[22]

• people who were residing in Ukraine before 1 January 2022 and left because of the Russian invasion, including British citizens and people granted leave within and outside the immigration rules[23]

• people who were residing in Sudan before 15 April 2023 and left because of the conflict that escalated on that date, including British citizens and people with leave to remain[24]

• people who were residing in Israel, the West Bank, the Gaza Strip, East Jerusalem, the Golan Heights or Lebanon immediately before 7th October 2023 and left because of the Hamas terrorist attack in Israel on 7 October 2023 or the violence which rapidly escalated in the region following the attack[25]

EEA nationals exempt from habitual residence

People with EU pre-settled status or temporary protection are eligible regardless of habitual residence if under retained EU law they:[26]

• are a worker or self-employed person

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

• have a permanent right to reside in the UK, as a result of being a retired or permanently incapacitated worker or self-employed person

• are a family member of a permanently incapacitated EEA worker or self-employed person

Frontier workers and family members who have been granted leave are also eligible without having to be habitually resident.[27]

These rights to reside are the same as referred to in housing law.

A person who has pre-settled status but does not have another right to reside is ineligible for universal credit.

The Court of Appeal upheld an Upper Tribunal decision that the DWP must check whether refusing universal credit to someone with pre-settled status would violate their fundamental rights under the Charter of Fundamental Rights of the European Union. Universal credit should be awarded where a refusal would mean the person is exposed to an actual and current risk that they and their child could not live in the UK in dignified conditions.[28]

Child Poverty Action Group has a note for welfare rights advisers on how to use the judgment to assist their clients.

In Fratila and Tanase v Secretary of State for Work and Pensions, the Supreme Court has held that EEA nationals with pre-settled status cannot rely on Article 18 of the Treaty on the Functioning of the European Union that prohibits discrimination on the grounds of nationality as a way of challenging the rules restricting access to public funds.[29] The Supreme Court referred to a decision of the Court of Justice of the European Union in a similar case.[30] This ruling overturns the original Court of Appeal decision that the eligibility rules amounted to unlawful discrimination under Article 18.

Couples who live together as one household must claim universal credit jointly. The eligibility of both is assessed.

If one person is ineligible, the claim is awarded as if the eligible partner is a single person.[31] If they meet the other conditions of entitlement, the standard allowance is awarded at the single person rate, plus any additional elements that they may be entitled to, such as for children and housing costs.

The claimant’s benefit may still be reduced if the ineligible partner has any income or capital.[32]

Universal credit paid in this situation does not count as public funds.[33] Claimants may want to consider adding a note to their journal when making a joint claim that their partner has no recourse to public funds and that they do not wish to make a claim for benefits in their own right.