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.
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.
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.
Who needs to be habitually resident?
People who are not subject to immigration control must be habitually resident to be eligible for assistance.
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.
A person is also exempt if they either:
left Afghanistan because of the collapse of the Afghan government in 2021
were residing in Ukraine before 1 January 2022 and left because of the Russian invasion
were were residing in Sudan before 15 April 2023 and left because of the conflict
were residing in Israel, the West Bank, the Gaza Strip, East Jerusalem, the Golan Heights or Lebanon immediately before 7 October 2023 and left in connection with the Hamas terrorist attack
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.
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.
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.
Local authorities should consider all the circumstances in the case, including:
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.
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.
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. 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.
The Code of Guidance says that a period of between one and three months is likely to demonstrate that a person is habitually resident.
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.
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.
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:
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
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.
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'.
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.
The Code of Guidance sets out these following general principles:
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:
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. Local authorities should look at where a person has their home.
Last updated: 30 October 2023