Summary
If a person is not from abroad they should be entitled to be treated as eligible for housing and benefits but they may still be excluded as a result of the Habitual Residence Test
The law here is messy. In summary a person should have no trouble passing this test if they can show that they have been living in the UK for more than two years before they made their application. A person living in the UK for more than six months should also be alright but where local authorities want to be difficult persons including British citizens who have been away from the county for more than a few months and have not been back for more than six months may experience difficulties.
A person who fails the habitual residence test should reapply for housing or benefits on a regular basis as each their claim to be habitually resident gets stronger with the passing time and cannot be denied after six months.
Provided the person does not fail the habitual residence test they should be eligible for all housing and benefits which they otherwise qualify for and should not be treated as ineligible.
Detail
The test of habitual residence applies to all nationals who are persons from abroad and are not subjection to immigration control, including British nationals. The test focuses on the fact and nature of residence. Mere physical presence is insufficient: there needs to be an association between the individual and the place of residence. The most important factors are the length, continuity and general nature of the actual residence.
It is necessary to distinguish between applicants who have arrived in the UK for the first time and those returning to the UK to resume a previous habitual residence.
First Time Resident
Annexe 10 of The Homelessness Code of Guidance recommends that applicants who have been resident continuously for a 2 year period prior to their housing application will be habitually resident: (paragraph 9.15). But inquiries need to be conducted where an applicant has less than 2 year's continuous residence. Consideration should be given to why the applicant has come to the UK, whether he is joining friends/family here, what his plans are, his length of residence in another country and where his centre of interest is located which includes factors such as the location of an applicant's home, his family ties, club memberships and finance accounts): see Annex 10 to the Code.
The two significant factors are:
- residence for an appreciable period of time such that it has become habitual and will or is likely to continue to be habitual. This can be a short time - see Nessa v Chief Adjudication Officer [1999] 4 All ER 677 at 682-83; and R(Paul-Coker) v. Southwark LBC [2006] HLR 32
- A settled intention to reside - common reasons for choice of a regular abode are education, business or profession, employment, health, family or mere love of the place (see the speech of Lord Scarman at 235H-G, in Shah v Barnet [1983] 1 All ER 226).
In CIS 4474/2003, a benefits appeal, the Commissioner stated that in the general run of cases, the period will lie between one and three months for habitual residence to be acquired.
Resumption of residence
Where an applicant is returning to the UK after a period spent abroad and it is established that the applicant was previously habitually resident AND he has a settled intention to return, then the applicant has no obligation to satisfy a further period of residence in the UK and will be immediately habitually resident. But there has to be a genuine resumption of the previous habitual residence. - See Annexe 10 of the Homelessness Code of Guidance
Relevant factors include length of absence from the UK and continuing links during the absence. Inquiries include when, how long and why did the applicant leave the UK, what links were maintained with the UK whilst they were away (eg. accommodation/family), what was the purpose of their time abroad and why did the applicant return to the UK.
Regulation 6(2): exemptions from the Habitual Residence Test & Re-Inclusions as Eligible
As set out above, Regulation 6(1)(a) of the Allocation Regulations provides that a person from abroad (who is not a person subject to immigration control) is not eligible if they are not habitually resident.
However, regulation 6(2) provides specific exemptions from the habitual residence requirement in 6(1)(a). It identifies 7 categories of persons who will be eligible notwithstanding the fact that they do not have habitual residence.