How can someone show 'habitual residence'?
For those not excluded from the test, the DWP will need to gather information and evidence to decide whether or not the UC claimant is 'habitually resident'.
The claimant will be asked a series of individually tailored questions at the Jobcentre. They will also be asked what efforts they have made to find work before coming to the UK and whether their command of English will be a barrier to employment.
A lengthy guide which clarifies Habitual Residence was published by the European Commission in January 2014. See here
It outlines the following factors to take into account:
- family status and family ties
- duration and continuity of presence in the Member State concerned
- employment situation (in particular the place where such activity is habitually pursued, the stability of the activity, and duration of the work contract)
- exercise of a non-remunerated activity
- in the case of students, the source of their income
- how permanent a person's housing situation is
- the Member State where the person pays taxes
- reasons for the move
- the person's intentions based on all the circumstances and supported by factual evidence.
Habitual Residence in the first three months in the UK.
No-one coming to the UK from abroad to look for work can be regarded as habitually resident in the UK for the first three months - unless they had previously been habitually resident in the UK, been abroad for a short period and never lost their habitual residence.
However if an EEA National makes the move into work then they are able to claim benefits including Universal Credit as an EEA National 'worker' as long as their work is considered to be 'genuine and effective'.
What about British citizens and the three month residence rule?
This three month residence rule also affects British citizens who have lived abroad and lost their ‘habitual residence’ in the UK. So many British citizens who are returning to the UK to look for work need to wait three months until they are able to claim UC. (But note the exemptions - service personnel returning to the UK after working abroad and their spouses, civil partners and dependents (up to age 21).)
As Ireland is part of the Common Travel Area this applies to Irish citizens too - ie they could lose their habitual residence if they have lived outside of the UK or Ireland.
What should someone do if refused UC because they are not 'habitually resident' - part two of the test?
If someone is refused UC because the DWP consider that they are not 'habitually resident' it is recommend that they continue to make claims for UC every 2–4 weeks as they may satisfy this test at a later date.
And they can appeal against the decision.
This is a very complex area, and there is a body of caselaw on the issue (relating to benefits other than UC, but nevertheless relevant). The claimant may fit into one of the categories of people who are excluded from or pass the test due to their particular circumstances – which we are unable to detail here as it is such a complex area and is continually changing as cases are taken to the Courts. Therefore people should always be advised to seek advice from a Law Centre or similar and not just accept the DWP's decision.