The habitual residence test: Key questions answered

A British citizen, born abroad, arrives in the UK for the very first time – are they eligible for homelessness support straight away? Not necessarily. The habitual residence test may exclude them, even though they don’t need permission to be here.

This is the second in our series unpacking the eligibility rules for housing, homelessness support and benefits. Article one covered immigration control – the first gateway condition. This one explains the second: the habitual residence test.

What is the habitual residence test?

The habitual residence test is one of two tests that prevent new arrivals from accessing social housing and welfare benefits. It operates alongside the immigration control test, which excludes most non-UK nationals. Where that test looks at immigration status, this one looks at whether someone has actually settled here – and it applies even to people who don’t need permission to be in the UK at all, including British citizens.

Who does the habitual residence test apply to?

The test is designed to stop anyone who has been living abroad, but who has a permanent or temporary right to settle in the UK, from accessing housing and benefits immediately on arrival. Crucially, it applies regardless of immigration status. For example, a person born abroad to British parents, who is British by descent and entering the UK for the first time as a British citizen, would still be excluded by the test until they’ve settled there.

Does it apply the same across the UK?

Not quite. The immigration control test covers the right to settle, where permission is granted by immigration officers under laws reserved to Westminster. But the fact of someone being settled is a housing matter – which means it is devolved to the national parliaments. This has led to a key policy difference: the habitual residence test does not apply to housing and homelessness services in Scotland unless it forms part of an immigration-control eligibility class.

Benefits, however, are different. Legislation on universal credit, state pension credit and housing benefit is reserved to Westminster, so the habitual residence test applies to those benefits in the same way across all four UK nations.

So, In England, Wales and Northern Ireland, anyone who does not need permission to be in the UK, such as a British citizen, is eligible for housing or homelessness services only if they are habitually resident.

And across all four UK nations, having access to public funds isn’t enough on its own for benefits eligibility – a person also needs to be habitually resident. That includes people with EU pre-settled status, who aren’t eligible for benefits unless they are exercising one of the EU free-movement rights that applied immediately before the end of the Brexit transition period – the law otherwise treats them as not habitually resident.

Who is exempt from the habitual residence test?

Some applicants are exempt from the test. The conditions for each exemption are set out in regulations. Broadly, they cover cases where a person came to the UK because of an imminent risk to their health or safety, or another humanitarian crisis. Examples include:

• People arriving from Ukraine to escape the war
• Refugees
• People who have recently come from a country that the UK government has advised its citizens to leave. 

If no exemption applies, the decision maker must decide whether the person is habitually resident on the facts of the individual case – what the DWP calls this being “factually habitually resident”.

A full list of exemptions is available on the Housing Rights website.

What does factually habitually resident mean?

Habitual residence is not defined in legislation. However, case law generally accepts that people who have the right and intention to settle, but are not yet habitually resident, may be excluded from housing and benefits for one to three months.

Habitual residence has two elements:

• Residence: The person must actually live here with the intention of settling; physical presence alone is not enough.
• A degree of permanence: The person must have lived here, with the intention of making it their home, for an “appreciable period” (typically one to three months).

The exact appreciable period depends on the length, continuity and nature of the person’s residence, assessed on the facts of the case. For example, a shorter period may be appropriate for someone returning to the UK to resume previous residence than for someone entering the UK for the first time. Relevant factors include:

• The length and continuity of residence
• The reasons for coming to the UK
• Future intentions
• Employment prospects
• The person’s “centre of interest”.

The weight given to each factor depends on the facts of the case. No single factor is decisive, and a factor that is important in one case may carry less weight in another. A person’s “centre of interest” means their ties to the UK. This may be shown by close relatives living here, the location of personal possessions, significant purchases such as furniture that indicate long-term commitment, or membership of clubs or organisations connected to the person’s hobbies or recreation.

Can you lose habitual residence?

Once a person has established habitual residence, it will usually resume immediately when they return after a short absence, such as a holiday, though the nature and purpose of the absence matters.

A person can lose habitual residence in a single day and, once lost, it does not resume immediately on return, even if they fully intend to settle again. For example, this may happen if a person leaves the UK to start work abroad.