In order to obtain Employment Support Allowance (ESA) you need to show that you normally live in Great Britain. You will still be entitled to ESA if you live in Great Britain but have periods of temporary absence from the country.
Employment and Support Allowance page index
You do not meet this requirement if you are not lawfully in the UK.
Great Britain is England, Scotland and Wales, it does not include Northern Ireland, the Channel Islands or the Isle of Man.
People who live in the European Economic Area and Sitzerland will be entitled to the contibutory component of ESA if they meet both of the contributory conditions and the rest of the qualifying criteria.
Temporary periods of absence are periods of up to four weeks. If the reason for the absence is for obtaining medical treatment abroad then the limit is 26 weeks. The treatment should be for a condition that causes your limited capacity for work.
The periods of absence are counted from the day after you leave the country until the day before you return.
You can also be absent for up to 26 weeks if you are taking one of your children abroad for the treatment of a disease or disability by an "appropriately qualified person".
You are entitled to an unlimited period of NHS treatment abroad but you will need permission from the DWP and you must continue to meet all the other conditions for ESA.
The Department of Work and Pension's (DWP) guidance for decision makers states that decisions on being resident are "primarily a question of fact and degree".
You don't meet this criteria if you live abroad but intend to settle in Great Britain, you will be entitled upon your arrival in Great Britain but not before.
When deciding whether or not a claimant is resident in Great Britain the DWP will consider the nature of the accommodation and the retention or disposal of the claimant's possessions. A person who is staying in a hotel or someone who is staying in the home of a relative may not be considered to be resident in Great Britain. If you have disposed of your house and furniture prior to moving to another country then you are likely to be considered resident in that other country
The right to reside and habitual residence tests.
Applicants who do not meet the contribution conditions and apply for income-related Employment Support Allowance (ESA IR) must show that they have a right to reside and are habitually resident in either the UK, the Channel Islands, the Isle of Man or the Republic of Ireland (this is known as the Common Travel Area or CTA).
Claimants who have come to the UK in the last two years who are not UK nationals will need to provide the appropriate documents to show that they have a right to reside. Anyone who does not meet this requirement will not be eligible for ESA (IR).
UK and Irish nationals coming to the UK from outside the Common Travel Area will need to have a current passport and birth certificate or a certificate from the Home Office confirming the grant of citizenship or the Irish equivalent.
EEA18 (Austria, Belgium, Cyprus, Denmark, Finland, France, Germany, Greece, Italy, Luxembourg, Malta, Netherlands, Portugal, Ireland, Spain, Sweden UK, Iceland, Norway and Liechenstein) and Swiss nationals have the right of residence if they are working in the UK or if they are able to support themselves and their family in the UK without the help of public funds.
Nationals of Bulgaria and Romania have the right of residence if they are the subject of the Worker Authorisation Scheme. Others will need to produce a blue registration certificate and a valid passport or ID card.
Czech Republic, Estonia, Hungary, Latvia, Lithuania, Poland, Slovakia and Slovenia nationals will need to be registered with the Home Office Worker Registration Scheme in order to have a right to reside in the UK.
You do not have a right to reside if you are subject to Immigration Control.
Habitually resident.
To meet the habitual residence test you must show that you have lived in the UK for at least 1-3 months and that you intend to remain for some time. You are not required to take up permanent residence in the UK, an intention to leave the country after 2 or 3 years will still meet this criteria provided you can show that you have a "settled" intention to remain for the time being.
When deciding on habitual residence the DWP will take the following factors into account-
You may still be considered to be habitually resident even if your accommodation has consisted of a series of temporary abodes.
If you have lived in the Common Travel Area and have established habitual residence and then moved abroad, you will be considered to be habitually resident immediately upon your return if you can show that you have maintained links with your previous residenc during your absence.
European Community (EC) law is at slight variance with the British regulations with regard to habitual residence. EC law requires the DWP to take the following factors into account when deciding on habitual residence-
Exemptions
You are exempt from the habitual residence and right to reside tests if you are-
EEA states are Austria, Belgium, Bulgaria, Cyprus, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Italy, Latvia, Lithuania, Luxembourg, Malta, Netherlands, Poland, Portugal, Republic of ireland, Romania, Slovakia, Slovenia, Spain, Sweden, UK (including Gibraltar but not the Channel Islands or the Isle of Man), Iceland, Norway and Liechenstein.
There is no legal definition of "genuine and effective employment". Decision Makers are advised to consider the following factors when deciding whether work done is genuine and effective-
If you have become involuntarily unemployed you will need to show that you have been working for at least a year before becoming unemployed and that you have been unemployed for no more than six months.
If you have stopped working due to a permanent incapacity you will need to show that you have resided continuously in the UK for at least two years before stopping work or that your incapacity reslted from an accident at work or an occupational disease which entitles you to a pension payable by an institution in the UK.
