Habitual Residence & Right to Reside
- The DWP decision maker (DM) first decides if the person has a RIGHT TO RESIDE.
- If s/he does the DM will then decide if that person is HABITUALLY RESIDENT based on the particular facts in that case.
You have a right to reside in the UK if any of the following apply (you only have to show you have one type of right to reside):
Do you have a right to reside?
This tool from CPAG enables you to check whether you have a right to reside that satisfies the right to reside requirement for benefit entitlement. It applies to EEA nationals and non-EEA nationals – askcpag.org.uk/link/206724/do-you-have-a-right-to-reside-
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Granted pre-settled status?
A person with pre-settled status will be ineligible for means-tested benefits if one of the following applies to them:
- They are not exercising a right to reside
- Their only right to reside is as a jobseeker, Zambrano carer, or initial right of residence
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Destitute EU nationals with PSS can rely on EU Charter of Fundamental Rights to obtain Universal Credit
SSWP v AT [2022] UKUT 330 (AAC)
It is important to ensure that any possible alternative rights have been identified before turning to SSWP v AT
In 2024, the High Court found that some pre-settled status holders who do not have a qualifying right to reside may be able to successfully apply for Universal Credit in certain circumstances, such as where the person is at risk of destitution, is unable to work, or is unable to access support elsewhere.
For further information visit:
org.uk/welfare-rights/test-cases/test-case-updates/destitute-eu-nationals-pss-can-rely-eu-charter-fundamental-rights-obtain
publishing.service.gov.uk/media/667d133baec8650b100900ab/dmg-memo-05-24.pdf
org.uk/sites/default/files/2024-02/09-02-24-CPAG-note-for-advisers-AT.pdf
org.uk/content/210011/a-guide-to-dignity-
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Regulations
The Immigration (European Economic Area) Regulations 2016
The Immigration (European Economic Area) (Amendment) Regulations 2012
Advice for Decision Makers
Advice for Decision Makers (ADM) Chapter C1 paragraphs C1946-75,
Guidance
European Economic Area nationals: qualified persons
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You have a right to reside in the UK if any of the following apply (you only have to show you have one type of right to reside):
EEA Jobseeker
A person who is looking for work. For Universal Credit purposes this does not count as a right to reside.
DWP Guidance
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EEA Permanent right to reside
A person can get a permanent right to reside in the UK if they can show that they have resided here, as a qualified person, for a continuous period of 5 years.
This will be lost if they are away from the UK for a period of 2 years. (There are other circumstances that qualify permanent right to reside that are outlined in Reg 15 of the EEA regulations.)
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EEA Worker
A person currently doing genuine and effective work.
Evidence:
For time spent in employment – Proof can include contracts of employment, letter(s) from your employer(s) confirming your employment, wage slips or P60s covering the 5-year continuous residence should be provided.
If you were required to be registered on the Worker Registration Scheme or to hold an accession worker authorisation document at any time during your 5-years continuous residence, you must provide your worker registration card and all worker registration certificates, or your worker authorisation document(s) (for example, your accession worker card), together with proof of your employment with each employer named on the certificate or card.
UC decision makers guidance states that the duration of employment is a relevant factor but not conclusive as it has been shown in case law that work for short periods cannot exclude a person from being a worker’. Decision Makers (DM) should use a two-tier approach to decide whether work is ‘genuine and effective’:
Tier 1 – Minimum Earnings Threshold
- First, the decision maker must determine if there is evidence that an EEA worker has undertaken activity which generates weekly income of at least the primary earnings threshold.
- If the first stage is not passed, this does not necessarily mean that the test is failed.
Tier 2 – Minimum Earnings Threshold not met
- The second stage – a thorough examination of the individual’s circumstances to determine whether they might still be treated as a worker in light of the facts and established caselaw.
- The DWP guidance clearly states that where the minimum earnings threshold is not met, the case should be examined as a whole.
To establish whether the work is genuine and effective, a number of factors should be considered:
- Number of hours: There is no minimum number of hours that have to be worked (though the more hours worked, the better the chance of the work being accepted as sufficient).
- Earnings: Just because the work is low paid or at a level that requires a top-up of means tested benefits, this does not necessarily prevent you from being a worker.
- Duration: The longer employment is due to last, the more likely it is to be accepted as genuine and effective, but again this is just one factor.
- Irregular or erratic: Being on a zero-hours contract does not prevent you from being a worker; the DM must look at the work you actually do.
- Employment rights: Having a contract, being entitled to sick and/ or holiday pay, being in a trade union that is recognised by your employer, are all factors. However, not having these right does not prevent you from being a worker, as the concept of a ‘worker’ is an economic, not a legal concept. Do not confuse the concept of illegal work (cash-in-hand) with the need for A8, A2 and Croatian nationals to be ‘legally working’ which is a specific requirement to do with the right to reside tests.
There is case law to suggest that the 3-month working rule is not a barrier to a claim, there is case law that indicates even very short periods of work can still be sufficient to mean individuals have worker status:
- There is Court of Appeal case law that states that a period of 2 weeks employment was sufficient to grant worker status upon the individual Barry v London Borough of Southwark [2008] EWCA Civ 1440
- Also caselaw C 483/17 Tarola v Minister for Social Protection; where a Romanian National living in Ireland, had his claim for Jobseeker’s Allowance refused after working for only two weeks on a casual rather than fixed term contract. The Court of Justice held that EU citizens are entitled to be treated as workers in these circumstances under Article 7(1)(a) and (3)(c) of Directive 2004/38.
- And Ninni-Orashe V Bundesminister Fur Wissenschaft, Verkehr und Kunst, C413/01 [2003] Work for a short period of time or for only a few hours a week could create worker status; this would have included people on ‘zero-hour’ or ‘on-call’ contracts.
There is recent case law from the Upper Tribunal that held that a LA was wrong to decide that a HB claimant had ceased to be self-employed when the earnings decreased below the MET, and that this error was due to the LA failing to apply the second part of the decision makers guidance and circumstances of the applicant. RF v LB Lambeth [2019] UKUT 52 (AAC) also CC v HMRC and SSWP (CB) [2020] UKUT 66 (AAC) para 2
DWP Guidance
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EEA self-employed person
A person who is currently doing genuine and effective self-employed work.
Evidence:
For time spent in self-employment – Proof can include evidence to show you are self-employed, e.g. a lease on business premises, HM Revenue and Customs (HMRC) self-assessment forms, business bank statements, invoices or receipts or National Insurance contributions, business accounts.
As evidence of comprehensive sickness insurance (this requirement only applies to persons exercising Treaty rights as students or self-sufficient persons) – You must provide either a private comprehensive sickness insurance policy document that covered for medical treatment in the majority of circumstances, or a European Health Insurance Card (EHIC) that covered the 5-year period of residence in the UK.
DWP Guidance
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EEA – Self-sufficient
A person who has enough resources to not be a burden on the State and has comprehensive sickness insurance. Such a person would not normally be entitled to Universal Credit but periods where this right to reside is satisfied could count towards determining a permanent right to reside
Evidence:
For time spent as economically self-sufficient
- Evidence of this can include evidence of comprehensive sickness insurance for yourself and any family members included in your application and of funds to show you are economically self-sufficient, e.g. a bank statement. If these funds come from a family member, evidence of their employment or funds should be supplied.
- Evidence to show you are retired, e.g. document(s) confirming the receipt of a pension
DWP Guidance
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EEA – Student
A person who is in full time education, has enough resources to not be a burden on the State and has comprehensive sickness insurance. Such a person would not normally be entitled to Universal Credit but periods where this right to reside is satisfied could count towards determining a permanent right to reside.
Evidence
For time spent as a student
- Evidence of a school, college or university letter confirming enrolment on a course of study, evidence of comprehensive sickness insurance (see section below on comprehensive sickness insurance) and evidence of funds available to you such as a bank statement, a document confirming the receipt of a grant or scholarship, or a declaration of sufficient funds.
- As evidence of comprehensive sickness insurance (this requirement only applies to persons exercising Treaty rights as students or self-sufficient persons) – You must provide either a private comprehensive sickness insurance policy document that covered for medical treatment in the majority of circumstances, or a European Health Insurance Card (EHIC) that covered the 5-year period of residence in the UK.
DWP Guidance
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EEA – Worker or self-employed person who has ceased activity
A person who has retired, has a permanent incapacity or works in another member state, whilst living in the UK, has a permanent right to reside if they satisfy the conditions in Reg 5 of the EEA Regulations.
Evidence:
If you have stopped working or being self-employed due to permanent incapacity.
- We need to see evidence to show you are permanently incapacitated, e.g. a consultant’s letter or medical report confirming permanent incapacity along with proof of having previously been in employment or self-employment. You must also provide proof of either residing in the UK for the 2 years immediately before you stopped work or being self-employed, or proof that your incapacity is as a result of an accident at work or occupational disease that entitles you to a pension paid in full or part by an institution in the UK.
If you have stopped working or being self-employed due to early retirement or reaching state pension age.
- We will need proof that you have resided in the UK for at least the 3 years immediately before you retired and that you were working or self-employed for at least 12 months immediately before you retired.
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EEA – Retained self-employed status (ill health or temp. incapacity)
A person who has stopped work or self-employed work due to sickness or accident and as a direct result cannot return to work yet.
Evidence:
For any period when you were unable to work or be self-employed due to temporary incapacity
- We will need a medical report or letter from a doctor confirming the illness or accident and how long you were, or are expected to be, unable to work or engage in self-employment. Evidence that you were working or self-employed immediately before the temporary incapacity.
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EEA – Retained worker status (looking for work)
A person who stopped working (from 24 July 2018 this also includes self-employed work) involuntarily and can demonstrate that they remained in the labour market.
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EEA – Retained worker status (maternity period)
A woman who gives up work due to the physical constraints of the late stages of pregnancy (within 11 weeks of the due date) can retain their status as a worker provided they intend to return to work within a reasonable period of time (up to 41 weeks from when the baby was born).
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EEA – Retained worker (voluntarily unemployed)
A person who stopped work (from 24 July 2018 this also includes self-employed work) voluntarily to start vocational training linked to their previous employment
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EEA – Retained Worker (involuntarily unemployed and embarked on vocational training)
A person who has stopped work (from 24 July 2018 this also includes self-employed work) involuntarily and has started vocational training.
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EEA – Family member of an EEA national
A person who satisfies one of the conditions in Reg 7 of the EEA Regulations would have the same right to reside as the family member of an EEA national. Any changes in the EEA national family member’s circumstances must be reported.
Evidence:
As evidence of relationships
- For family relationships: this can include marriage certificates, civil partnership certificates or birth certificates. For unmarried partners: proof that you continue to be in a durable relationship, such as joint bank or building society statements, joint tenancy agreements or evidence that you have both continued to pay utility bills at the property at which you reside. You should also include your registration certificate confirming that your right of residence as an unmarried partner has previously been recognised by the Home Office.
Example
Lucia and Javier are Spanish citizens who live in the UK. They are married to each other. If either Lucia or Javier has a right to reside because they’re working, the other will also have a right to reside as their family member.
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EEA – Extended family member
A person who satisfies one of the conditions of Reg 8 of the EEA Regulations and also holds one of the following:
This gives them the status of family member of an EEA national and would have the same right to reside as the EEA family member. Any changes in the EEA national’s circumstances must be reported.
Evidence:
As evidence of relationships
- For family relationships: this can include marriage certificates, civil partnership certificates or birth certificates. For unmarried partners: proof that you continue to be in a durable relationship, such as joint bank or building society statements, joint tenancy agreements or evidence that you have both continued to pay utility bills at the property at which you reside.
- You should also include your registration certificate confirming that your right of residence as an unmarried partner has previously been recognised by the Home Office.
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EEA – Family member of British Citizen
The British Citizen and the claimant must have lived together in another EEA country and the other conditions in Reg 9 of the EEA Regulations must be reported
Evidence:
As evidence of relationships
- For family relationships: this can include marriage certificates, civil partnership certificates or birth certificates.
- For unmarried partners: proof that you continue to be in a durable relationship, such as joint bank or building society statements, joint tenancy agreements or evidence that you have both continued to pay utility bills at the property at which you reside.
- You should also include your registration certificate confirming that your right of residence as an unmarried partner has previously been recognised by the Home Office.
EEA – Family member who has retained the right of residence
In some circumstances a person can derive a right to reside from a family member who has died or from whom they are divorced. The relevant conditions are set out in Reg 10 of the EEA Regulations.
Evidence:
If you are requesting permanent residence due to the death of EEA national family member we need:
- Evidence of your EEA national working or being self-employed as stated in the relevant sections below.
- Proof that you resided with them immediately prior to their death.
- Proof that your EEA national family member lived in the UK for at least the 2 years prior to their death as stated in the relevant section below or that their death was as a result of an accident at work or occupational disease such as their death certificate.
As evidence of relationships
- For family relationships: this can include marriage certificates, civil partnership certificates or birth certificates. For unmarried partners: proof that you continue to be in a durable relationship, such as joint bank or building society statements, joint tenancy agreements or evidence that you have both continued to pay utility bills at the property at which you reside.
- You should also include your registration certificate confirming that your right of residence as an unmarried partner has previously been recognised by the Home Office
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Non-EEA – Family member of an EEA national
A person who satisfies one of the conditions in Reg 7 of the EEA Regulations which allows them to be treated as the family member of an EEA national. They would have the same right to reside as the EEA national family member. A non-EEA national would normally hold a valid residence card confirming they are a family member – but as long as they can demonstrate they are a family member the card is not essential. Any changes in the EEA national family member’s circumstances must be reported.
Evidence:
As evidence of relationships
- For family relationships: this can include marriage certificates, civil partnership certificates or birth certificates. For unmarried partners: proof that you continue to be in a durable relationship, such as joint bank or building society statements, joint tenancy agreements or evidence that you have both continued to pay utility bills at the property at which you reside.
- You should also include your registration certificate confirming that your right of residence as an unmarried partner has previously been recognised by the Home Office.
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Non-EEA – Person Subject to Immigration Control (PSIC)
Examples of individual rights to reside issued by the Home Office (list not exhaustive)
- EEA – Indefinite leave to remain
- EEA – Limited leave to remain
- Non-EEA – Settlement
- Non-EEA – Permanent right to reside
- Non-EEA – Indefinite leave to remain
- Non-EEA – Limited leave to remain
- Non-EEA – Humanitarian protection *
- Non-EEA – Refugee *
A person who is not an EEA National and who doesn’t have a Biometric Residence Permit or Visa giving them a right to reside in the UK. Or, they have a Biometric Residence Permit or Visa but this is subject to the condition that they do not have recourse to public funds or the Permit or Visa was given as a result of a maintenance undertaking. (In some exceptional circumstances an EEA national may have been granted leave to remain before their country joined the EU, which could still be relevant).
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British Citizen or national of the Common Travel area (comprising the UK, Ireland, the Isle of Man, and the Channel Islands. The British Overseas Territories are not included)
These people have the right of abode in the UK but they have to show they are actually habitually resident, and intend to remain. This would normally be a period of continual residence between 1 and 3 months.
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Primary carer of a child in education
A person can have a derivative right to reside, if they do not have any other right to reside (whether that entitles them to benefit or not) and are the primary carer, or joint primary carer, of a child in general education, providing that one of the child’s parents is an EEA national who has resided in the UK as a worker since the child came to live in the UK. There is no requirement for the worker to be part of the family unit but the work must be genuine and effective.
If the child is a British Citizen this does not count as a right to reside for Universal Credit purposes.
A derivative right to reside does not go towards the 5 continuous years required to acquire a permanent right to reside.
Disability Rights UK – Right to reside as the parent and primary carer of a child in education
EU Settlement Scheme: derivative right to reside (Chen and Ibrahim/Teixeira cases) DWP Guidance
There are three types of Derivative rights of residence:
Ibrahim-Teixeira cases
- This applies to situations where a child of an EEA national is in education in the UK, and the applicant is the primary carer of such a child. Dependent children of such primary carers should also qualify for a right of residence where failure to give such a right would have the effect of preventing that primary carer from residing in the UK.
Zambrano cases
- This applies to the primary carer of a British citizen residing in the UK or the dependant of such a primary carer. The primary carer of a British citizen who is residing in the UK has a right to reside under EU law if their removal from the UK would require the British citizen to leave the EEA. Potential Zambrano applicants must first make a human rights application under British immigration law. The applicants do not have a choice between applications under Zambrano or the UK Immigration Rules.
Chen cases
- This applies to the primary carer of an EEA national child who is exercising free movement rights in the UK, and the dependant of such a primary carer.
- A child will have a right of residence in a member state where that child:
(a) is an EEA national,
(b) holds sufficient resources to prevent them (and their primary carer) becoming a burden on the social assistance system of the host member state, and
(c) holds comprehensive sickness insurance.
- The primary carer of such a child will have a right of residence in the host member state until the child’s eighteenth birthday where to refuse such a right would prevent the child from continuing to reside in the UK.
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Non-EEA/EEA – Primary carer of a British National child in education
A person who satisfies one of the conditions in Reg 7 of the EEA Regulations which allows them to be treated as the family member of an EEA national. They would have the same right to reside as the EEA national family member. A non-EEA national would normally hold a valid residence card confirming they are a family member – but as long as they can demonstrate they are a family member the card is not essential. Any changes in the EEA national family member’s circumstances must be reported.
Evidence:
As evidence of relationships
- For family relationships: this can include marriage certificates, civil partnership certificates or birth certificates. For unmarried partners: proof that you continue to be in a durable relationship, such as joint bank or building society statements, joint tenancy agreements or evidence that you have both continued to pay utility bills at the property at which you reside.
- You should also include your registration certificate confirming that your right of residence as an unmarried partner has previously been recognised by the Home Office.
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