Habitual residence test for homelessness assistance

British and Irish citizens as well as some people from abroad are only eligible for assistance if they are habitually resident in the Common Travel Area.

This content applies to England

What is the habitual residence test?

Some groups of people are only eligible for homelessness assistance if they are habitually resident in the Common Travel Area.

The Common Travel area is the UK, the Channel Islands, the Isle of Man and the Republic of Ireland.[1]

Habitual residence is not defined in law. It is about where a person has their settled home. The term habitual means there must be a degree of permanence in the person’s residence.[2]

Who needs to be habitually resident?

People who are not subject to immigration control must be habitually resident to be eligible for assistance.[3]

This includes British and Irish nationals and Commonwealth citizens with a right of abode.

Some groups of people subject to immigration control must also be habitually resident to be eligible for homelessness assistance including people with indefinite leave to remain.

A person is exempt from the habitual residence test if they are in the UK because they were deported, expelled or compulsorily removed from another country to the UK.[4]

EEA nationals

EEA nationals with settled status under the EU settlement scheme must be habitually resident to be eligible for homelessness assistance.

EEA nationals and their family members who have either pre-settled status or temporary protection are only eligible for homelessness assistance if they are also exercising a qualifying right to reside under retained EU law. Most qualifying rights to reside are exempt from the habitual residence test with some exceptions.[5]

A person who has a permanent right to reside under retained EU law based on five years lawful residence must be habitually resident to be eligible. This would affect someone with temporary protection who had not yet been granted settled status. A person with a permanent right to reside as a retired or incapacitated worker or self employed person does not need to be habitually resident.[6]

A person with pre-settled status or temporary protection whose right to reside is as the primary carer of the child in education of an EEA worker must be habitually resident to be eligible.

Applying the habitual residence test

The Homelessness Code of Guidance says that in practice local authorities only need to enquire into habitual residence where the person has arrived in or returned to the UK in the last two years.[7]

Local authorities should consider all the circumstances in the case, including:[8]

  • why the applicant has come to the UK

  • what their plans are now they are here

  • the length and continuity of residence

  • where is their ‘centre of interest’

Factors that are relevant include bringing possessions, doing everything necessary to establish residence before coming, having a right to live in the UK, and demonstrating durable ties with the country.

Habitual residence generally requires residence to be for both an appreciable period of time and a settled purpose.[9]

Benefits and habitual residence

The habitual residence test is also used in benefits law. Guidance, circulars and Tribunal decisions relating to entitlement to benefits can be relevant for homelessness decisions.

Decisions by the Department for Work and Pensions (DWP) on whether a person is habitually resident should be taken into account, although local authorities are not required to follow benefits decisions.[10]

Period of habitual residence

A person is usually only habitually resident if they have actually taken up residence in the Common Travel Area and lived there for a period.[11] There is no set amount of time but the House of Lords held that it should be an ‘appreciable’ period. What amounts to a sufficient period of time depends on the circumstances of each case.[12]

The Code of Guidance says that a period of between one and three months is likely to demonstrate that a person is habitually resident.[13]

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.[14]

Resuming a previous period of habitual residence

A person is treated as immediately habitually resident if they were previously habitually resident in the UK and have returned to live in the UK.

The same would apply to habitual residence in the Common Travel Area.[15]

The Code gives a list of questions that local authorities should consider when deciding whether a person is resuming a former period of residence, including:[16]

  • when and why they left the UK

  • how long they intended to be abroad

  • what links they kept with the UK

  • why they have returned

Forced marriage

DWP guidance on housing benefit says that victims of forced marriage do not lose their habitual residence in the UK if they have been detained abroad against their will and prevented from residing habitually in the UK through no fault of their own. This guidance is likely to apply to people applying as homeless as well.[17]

Settled purpose

Local authorities should consider the applicant’s stated reasons and intentions for coming to the UK.

Habitual residence requires that residence is 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 can include education, employment, family matters, health, or merely 'love of the place'.[18]

A person who intends to reside in the UK for a short period is unlikely to be habitually resident. For example, a short stay for a holiday or to access medical treatment.

If the person states that they intend to live in the UK and not return to the country they came from, their intention must be consistent with their actions.[19]

The Code of Guidance sets out these following general principles:[20]

  • the focus is on the fact and nature of residence

  • a person needs to be making a genuine home for the time being, even if it is not their only or permanent home

  • 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 habitual

  • people may still be habitually resident during temporary or occasional absences, whether they are short or long

Centre of interest

A person can spend time abroad but still be habitually resident, if their centre of interest is in the Common Travel Area.

When deciding where a person’s centre of interest lies, local authorities should consider:[21]

  • where the person's home is

  • what family ties they have in the UK or abroad

  • where their bank account and assets are

  • any club memberships

A person can be habitually resident even if they own a property abroad that they do not intend to sell.[22] Local authorities should look at where a person has their home.

Last updated: 26 April 2021

Footnotes

  • [1]

    s. 1(3) Immigration Act 1971

  • [2]

    para 7.21 Chapter 7 Homelessness Code of Guidance MHCLG, Feb 2018.

  • [3]

    reg 6(1)(a) Allocation of Housing and Homelessness (Eligibility)(England) Regulations 2006 SI 2006/1294 January 13, 2021, 4:01 PM

  • [4]

    reg 6(2)(g) Allocation of Housing and Homelessness (Eligibility)(England) Regulations 2006 SI 2006/1294

  • [5]

    reg 6(2) Allocation of Housing and Homelessness (Eligibility)(England) Regulations 2006 SI 2006/1294

  • [6]

    reg 6(2)(e) Allocation of Housing and Homelessness (Eligibility)(England) Regulations 2006 SI 2006/1294

  • [7]

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

  • [8]

    paras 10 – 21, annex 1, Homelessness Code of Guidance, MHCLG, Feb 2018.

  • [9]

    Mangion v London Borough of Lewisham [2008] EWCA Civ 1642, Simpson-Lowe v Croydon BC [2012] EWCA Civ 131

  • [10]

    R (on the application of Paul-Coker) v London Borough of Southwark [2006] EWHC 497 (Admin)

  • [11]

    para 14, annex 1, Homelessness Code of Guidance MHCLG, Feb 2018.

  • [12]

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

  • [13]

    para 14, annex 1, Homelessness Code of Guidance MHCLG, Feb 2018.

  • [14]

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

  • [15]

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

  • [16]

    annex 8, para 7 Homelessness Code of Guidance, MHCLG, Feb 2018; see also Swaddling v Adjudication Officer [1999] All ER (EC) 217.

  • [17]

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

  • [18]

    Shah v Barnet LBC [1983] 2 AC 309; [1983] 1 All ER 226. This case refers to ‘ordinary residence’, however the two terms have been described as interchangeable in practice – see R (on the application of Paul-Coker) v London Borough of Southwark - [2006] EWHC 497 (Admin)

  • [19]

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

  • [20]

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

  • [21]

    para 19, annex 1, Homelessness Code of Guidance, MHCLG, Feb 2018.

  • [22]

    para 21, annex 1, Homelessness Code of Guidance, MHCLG, Feb 2018.