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New habitual residence test and the impact on returning UK nationals


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The habitual residence test has been part of the benefits system since 1996.  Under the test, new entrants to the UK and returning nationals are required to show that they are habitually resident in the Common Travel Area (the UK, the Channel Islands, the Isle of Man or the Republic of Ireland); otherwise they will be ineligible to claim benefit.  Nessa v Chief Adjudication Officer established that in order to satisfy the test the claimant must have both a settled intention to remain in the UK for the time being and have actually resided here for an ‘appreciable period’.  What amounted to an appreciable period was not fixed, and each case had to be decided on its facts.  It was subsequently established that in an ordinary case, if a settled intention had been established, the appreciable period needed was likely to be between one and three months: see CIS/4474/2003.  An EEA national arriving in the UK as someone seeking work was also subject to this test in order to establish a link with the UK employment market (Collins v Secretary of State for Work and Pensions).

From 1 January 2014, an amended version of the test based on a fixed period of 3 months applies for claims of income-based jobseekers allowance (JSA(IB)).  Under this test, a JSA(IB) claimant (who is not in the exempt group JSA Regs 1996, (SI 207, reg. 85A(4)) cannot be treated as habitually resident in the Common Travel Area unless that claimant has been living in the area for the past three months.  In other words, entitlement to JSA(IB) cannot begin until there has been a three month period of continuous residence within the Common Travel Area: see The Jobseeker’s Allowance (Habitual Residence) Amendment Regulations 2013 (SI 2013/3196).

When the change was announced by the Prime Minister, it was portrayed as being aimed at stopping “rogue EU benefit claims” and part of a package of measures designed to “stop people abusing Britain’s benefit system”. In a letter to the Secretary of State for Work and Pensions, dated 3 February 2014, the Social Security Advisory Committee (SSAC) expressed concern about the impact of the new test on returning nationals, saying that it will:

“ … inevitably, impact UK nationals returning to the UK in a variety of circumstances – for example: following the end of a marriage in difficult circumstances; to assist with caring responsibilities for a close family member (but where Carer’s Allowance is already in payment to someone else or otherwise not appropriate); following short periods of employment outside of the UK; and where a young person has been travelling overseas during a gap year or volunteering.”

british_passport squareOne such case has already received some press attention: York man refused benefits due to new immigration rules, reported the York Press.

In a reply dated 14 February 2014, Ian Duncan Smith said that the introduction of a fixed period of time provided “much needed clarity” to the test.  But in the light of the SSAC’s concerns he promised that further work would be undertaken on the impact of the three month requirement.  So watch this space – but do not hold your breath.

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Picture of Desmond Rutledge

Desmond Rutledge

Desmond Rutledge is a barrister at Garden Court Chambers where he is a member of the public law and the welfare benefits team. He has in-depth experience in cases where there is a cross over with immigration and community care issues. He writes and provides training on welfare benefits issues and contributed the section on welfare benefits for migrants in Chapter 14 of Macdonald’s Immigration Law and Practice (9th edn) published February 2015.


12 Responses

  1. This is a situation one of my client’s finds herself in. She is a British national who has lived in Libya most of her life. She returned to the UK with her husband, and the marriage has broken down. She has two children who are Libyan nationals. She does not satisfy the habitual residence test and is now destitute. Her family are unwilling to support as they do not accept the end of the marriage. She is in a desperate situation – as not only is she not entitled to benefits, but she requires legal advice to regularise her children’s stay, sadly LASPO strikes again and she must pay for any advice as this is an immigration matter.

  2. I have also had an enquiry about a British citizen refused benefits after an absence of four months abroad, and about an EEA citizen who had left the UK for a funeral in December, stayed because of sickness and returned in February. Would be good if someone were collecting information for possible challenges etc: there has been a lively correspondence on the Housing and Immigration Group list.

  3. The impact on returning (or newly arriving*) British nationals has to be the same as the impact on returning (or newly arriving) non-British EEA nationals as otherwise there would be a breach of EU law. Well, I guess UK law could give preferential treatment to EEA nationals like it does with visas for family members- but it couldn’t give worse.

    *It is possible for a British national never to have set foot in the UK.

  4. Would emphasise the importance of telling peopl to contact their MPs and tell them what has happened: the measure was publicised as being about EEA nationals, with no evidence whatsoever that many of them actually tried to claim IBJSA within three months of arrival. MPs from several parties have welcomed “curbs on benefit tourism” and some have proposed increasing the time for which new arrivals would be excluded. Important that they realise how this sort of electioneering instead of proper policymaking actually pans out.

  5. I’m in this situation right now. Couldn’t find work in the UK, so in April last year I decided to take a job teaching English in South Korea for 12 months. I’m due back in the UK next month and didn’t know about the change in rules until I was told by a landlord (I emailed him about a flat he was renting to HB claimants). I have no family or friends who are able to put me up and it seems from the Shelter website I can’t even claim any help as a homeless person since I don’t pass the Habitual Residence Test. If I was aware the changes would have affected me in this way I wouldn’t have taken the job in South Korea.

    1. I don’t want to get into an argument with Shelter (!) but the test is simply a test for Income Based JSA (which passports through to HB although not for sopme EU claimants from next week). It is not the same test as for housing services: on current guidance for local authorities administering housing waiting lists and homelessness services you should be treated as a returning habitual resident: someone who was abroad for a temporary purpose but reatined a centre of interest in the UK. Of course very few people actually get housed by local authorities and being habitually resident will not make you a priority homeless case.

      It might also be worth checking whether you could get housing benefit even if you are refused IBJSA, as someone who has no income/low income. Or you may be able to get contributions based JSA if you have paid national insurance for the relevant time, and then claim housing benefit.

      We are updating the http://www.housing-rights.info site over the next few weeks (has been a struggle to keep up with all the changes) and hope to incliude stuff on this and ideas about what people can do.

    2. Thank you so much for the advice, Sue. I never thought I’d ever see a time that I could spend more than 16 weeks away from my country and then be classed as a non-person when I return.

    3. Sue, my last MP in the UK was Tessa Jowell, so I have sent her this:

      Right Honourable Dame Tessa Jowell DBE MP

      I need your help regarding a new problem that has arisen from the changes to the Habitual Residence Tests implemented on January 1st 2014.

      I couldn’t find employment and it was a miserable time for me, so in April 2013 I decided to take up a job offer teaching English for 12 months in South Korea. It has been a wonderful and fulfilling experience, but now I would like to come home.

      I’m due back in the UK at the end of April and because I haven’t found employment as of yet I was going to claim Jobseekers Allowance (income based) and Housing Benefit. I didn’t know about the changes to Habitual Residence Tests and how it also affects UK Citizens who have been away from the UK for over 16 weeks.

      It means I get no help from the government for three months. I have no family or friends who are able to put me up or feed me and it seems from the Shelter website I can’t even claim any help as a homeless person since I don’t pass the Habitual Residence Test.

      If I was aware the changes would have affected me in this way I wouldn’t have taken the job in South Korea in the first place.

      I understand the changes were to stop EU migrants from claiming benefits straight away, but why include UK Citizens who have been away for 12 months or less (away for 16 weeks or more means you cannot claim any benefits for three months)?

      So I ‘m now unsure of my future and it seems I may be sleeping on the streets, since I’m not even entitled to claim help as a homeless person.

      You were my MP before I took the job in South Korea and why I’m writing to you for help, I don’t know who else to ask for help with this matter.

  6. I’m also in the same situation. I came back from studying a master degree abroad as it’s not really economically viable to study in England any more after the fee increase! Now the country won’t support my search for work for the next 3 months! I just paid 80 odd pounds last week in train tickets to London for interviews, which would normally be covered by JSA. I’m not sure I can go next time! I’m looking for work and scrapping around for some money. Are there any methods/forums/places to challenge this rule?

  7. As you can see above, maybe talk to your MP. The Social Security Advisory Committee was concerned about the possible effects on returning British citizens and may be interested to know about your experiences. The rpoblem with organising any campaign is that that is not easy with a group of people left destitute who know it will only last three months. But you may want to consider it? Talk to any local welfare rights organisations? the local unemployed centre? other local campaigners against cuts to benefits?

  8. Thanks suelukes. Once I get back on my feet I will write to my MP, even if the only impact is to spread awareness of a lack of support for British nationals returning home. A campaign is also a possibility.

  9. One thing occurs to me, which is not necessarily any use to people who have posted here. But if someone goes to work in the EU and then returns to the UK I think it is possible s/he may have rights as an EU worker in the UK, which may include exemption from the habitual residence test. Any lawyers want to comment: do Surinder Singh rights cover this?