R is for habitual ResidenceDate published: 20th January 2021
What is habitual residence?
Habitual residence is not actually defined clearly in the regulations, but in simple terms means the place you regard as your home and you plan to stay. In order to claim certain benefits you must be able to demonstrate you are habitually resident. To do so you must prove you have a “right to reside” and pass the habitual residence test.
What is the right to reside?
Right to reside is your legal right to live in the UK. There are lots of different rights to reside and you may have more than one.
You need to have the correct right to reside to claim these benefits:
• Child Benefit
• Child Tax Credit
• Council Tax Support
• Income-related Employment and Support Allowance
• Housing Benefit
• Income Support
• Income-based Jobseeker’s Allowance
• Pension Credit
• Universal Credit
What if I am British?
If you are British you have an automatic right to reside.
What if I am an EEA national or a family member of an EEA national?
If you are an EEA national, you need to show you have the correct right to reside to claim these benefits.
Because the UK is leaving the European Union, there is a new scheme to protect the rights of EEA nationals who live in the UK. Find out more about the EU Settlement Scheme
What if I am a family member of an EEA national?
If you are related to an EEA national who has the correct right to reside, you can be treated as having the same right to reside. A family member can be your:
• Spouse or civil partner
• Child, grandchild or great grandchild if you are financially dependent on them
• Parent, grandparent or great grandparent if you are financially dependent on them
• Parent, grandparent or great grandparent if you are aged under 21
What are the different types of right to reside?
You can have a right to reside for different reasons. You only need to show you have one type of right to reside. Some types of right to reside give you more rights than others - for example, you can claim more benefits if you’re working than if you’re a jobseeker. Find out about the different types of “right to reside”
Click on the link to find out the different types of right to reside.
I have a right to reside – What next?
If you can prove you have a right to reside, you might also need to show you plan to settle in the UK when you claim benefits. You do this by passing the habitual residence test.
You don’t need to pass the habitual residence test if you have a right to reside because you:
• are a worker or self-employed person
• are the family member of a worker or self-employed person
• have retained your worker or self-employed status
• got a permanent right to reside in less than 5 years - for example, because you retired or can’t work because of illness or an accident
What is the habitual residence test?
To pass the test you will be counted as 'habitually resident in fact'. To pass you will need evidence to show:
• when you arrived in the UK, Ireland, Channel Islands or Isle of Man
• the UK, Ireland, Channel Islands or Isle of Man is your main home
• you can afford to live in the UK
• you have a right to claim benefits in the UK
Click here to see what kind of evidence you will need.
What if I fail the habitual residence test?
You can stay in the UK and your house even if you fail the habitual residence test. You won't be able to claim benefits or get a council home. You'll get a letter saying why you have failed the test.
Can I challenge the decision?
If you think the benefits office has made the wrong decision, you can challenge it. To challenge the decision you’ll need to ask for a ‘mandatory reconsideration’ - this means they’ll look at the decision again. It's best to provide extra evidence to support your challenge.
If you are looking for advice and/or assistance on habitual residence, contact CARF on 0345 1400 095. Fife Migrants Forum, based in Kirkcaldy can also offer information and support.