Jobseeker's Allowance and living in the UK

In order to claim Jobseeker's Allowance (JSA) you need to show that you are lawfully living in Great Britain.

Temporary absences from Great Britain.

When deciding, under EC law, whether or not you are habitually resident in the UK, the DWP will take the following factors into account:

You are able to be absent from Great Britain and still be entitled to JSA provided that you meet certain conditions.

If you are visiting Northern Ireland you will be paid JSA for the first 4 weeks of your visit if you continue to meet the rest of the JSA criteria and your visit there won't exceed 52 weeks.

You can go abroad and be paid for up to four weeks with your partner if your partner has been awarded a premium in respect of your JSA. Again, your visit must last no longer than 52 weeks and you continued to meet the JSA criteria up until the date of your departure.

You will be paid JSA for eight weeks if your absence is due to the fact that you are accompanying your child or a young person of the family who is going abroad for medical treatment. This absence must last no longer than 52 weeks.

You will be paid JSA for seven days if you are going abroad for a job interview. You need to give the DWP notice of this before you go.

You will be paid JSA for up to four weeks if you are in receipt of a training allowance but are not actually receiving training.

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Looking for work in Europe

You will be paid for up to four weeks if you are looking for work in another EEA country provided that :

• you are "wholly unemployed"- this means that you must be without work and does not include people who are on short time or who have been temporarily laid off; and
• you are entitled to contribution based JSA immediately before leaving. This includes people who have been awarded income-based JSA but nevertheless still meet the contributions criteria; and
• your entitlement to JSA is not based on a reciprocal agreement between the UK and a state which is not an EEA country; and
• the purpose of your visit is to look for work; and
• you have been registered as a person looking for work for at least four weeks; and
• you register as a person seeking work within seven days of arriving in the other European country.

You can look for work in more than one country during the same period of absence.

You are only entitled to one period of absence to look for work in Europe in any period of unemployment. Thiis means that you cannot go abroad in search of work for seven days, come back to the Uk and then go abroad again to look for work.

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The Habitual Residence Test,

In order to claim income-based JSA, you must show that you are habitually resident in the Common Tavel Area (the UK, the Channel Islands and the Republic of Ireland) and not subject to immigration control.

There is no legal definition of what "habitually resident" actually means, the guidance to Decision Makers states that it be given its "ordinary and natural meaning". You would need to show that you have a settled intention to remain in the UK and that you have been resident for a period of time before applying. You do not need to intend to remain permanently in the UK. A period of between one and three months should be sufficient to indicate that your residence is habitual

There are factors that should be taken into account when deciding whether residence is habitual or not:

• bringing your possessions with you as far as is practicable;
• doing everything possible to establish residence beforehand;
• having a right of abode
• seeking to bring family members to join you;
• having durable ties with your country of residence or intended residence.

The DWP states that this list is not exhaustive and that any other facts which might indicate whether or not your residence is habitual should be taken into account.

The rules under EC law for deciding whether an applicant is habitually resident are slightly different from those set out above.

You can apply for JSA on your first day of residence if you can show that:

• you have returned to the Common Travel Area (UK, Irish Republic, Jersey, Isle of Man, Guernsey) and you were previously habitually resident there; or
• you or a member of your family is a national of (and has worked in) another European Economic Area (EEA) state.

The EEA comprises 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, Iceland, Norway and Leichenstein.

Exemptions.

There are some significant exemptions to the habitual residence test, you do not have to show that you are habitually resident if you:

• have refugee status, refugees are defined as those who are outside their country or origin and are unwilling to return for fear of persecution; or
• have discretionary leave to remain in the UK, the Home Office has the power to award to discretionary leave outside the immigration rules;
• have been granted humanitarian protection, this is given to people who have not been recognised as refugees but who are considered likely to face serious harm in their own country; or
• are an EEA national who is a worker, the work you have done needs to be seen as "genuine and effective". This work can be part time. Decision Makers are encouraged to look at the period of employment, the number of hours worked, the level of earnings, whether the work was regular or erratic and whether the person has become voluntarily employed when deciding whether you can be considered ro be a worker; or
• are an EEA national who is self-employed; or
• are a family member of an EEA national who is a worker or self-employed; or
• are an EEA national (or a family member) who has resided in the UK for five years; or
• are a national of the Czech Republic, Estonia, Hungary, Latvia, Lithuania, Poland, Slovakia, Slovenia who is required to register your employment and have done so or are within the first month of employment; or
• are a national of Bulgaria or Romania who is subject to worker authorization and have a worker authorization document and are working in accordance with the conditions in that document.
• are not subject to immigration control and are in the UK as a result of your deportation, expulsion or other form of legal removal from another country to the UK;
• left the island of Montserrat after November 1st 1995 because of the volcanic eruption.

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Your Right to Reside.

In order to get income-based JSA you must show that you have a right to reside in the Common Travel Area (the UK, the Channel Islands, the Republic of Ireland).

The following groups have a right of residence:

• UK nationals;
• Irish citizens
• EEA nationals and their families who have an initial right of residence. All EEA nationals have the right to reside in any other EEA country for a period of three months. However those who are in the first three months of a stay in the UK will not meet the "habitually resident" criteria (see above);
• an EEA national who is a jobseeker, a worker, a self-employed person, a self-sufficient person or a student. Family members and extended family members of any of these also have a right to reside:
• An EEA national or a family member who has resided in the UK continuously for five years.

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A8 Nationals

Nationals of the Czech Republic, Estonia, Hungary, Latvia, Lithuania, Poland, Slovakia and Slovenia (A8 nationals) only have a right to reside as long as they are working for an authorised employer and have registered with the Worker Registration Scheme. Workers from these countries lose their right to reside if they cease working for any reason. Work seekers from these countries only have a right to reside if they are self sufficient (ie only when they are not a burden on the public purse).

A8 nationals are exempt from the requirement to register with the Worker Registration Scheme if :

• had on 30th April 2004 leave to enter or remain in the UK and your immigration status had no restrictions on work; or
• were legally working in the UK on 30th April 2004 and had been so for a continuous period of 12 months before that date; or
• have legally worked in the UK for an uninterupted period of 12 months either partly or wholly after 30th April 2004, at the end of that 12 month period.

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A2 Nationals

Nationals of Bulgaria and Romania (A2 nationals) only have a right to reside as a worker. They must get a worker authorisation document before they start work in the UK. If they cease work for any reason they lose their right to reside. Work seekers from A2 countries only have a right to reside if they are self-sufficent.

Some A2 nationals are exempt from worker authorisation. You are exempt if you:

• have leave to enter or remain in the UK under the Immigration Act 1971 and your immigration status has no condition restricting employment; or
• were legally working in the UK on 31st December 2006 and had been working in the UK without interuption for a continuous period of 12 months ending on that date; or
• have legally worked in the UK without interuption for a period of 12 months falling partly or wholly after 31st December 2006, at the end of that 12 month period; or
• have dual nationality and are also a national of the UK or some other EEA state (other than Bulgaria or Romania); or
• are the spouse or civil partner of a UK national; or
• have a permanent right of residence under regulation 15 of the Immigration (EEA) Regulations 2006; or
• are a family member of an EEA national who has a right to reside in the UK under certain legislation other than a family member in an excluded category; or
• are a highly skilled person and hold a registration certificate which grants you unconditional access to the UK labour market; or
• are a posted worker, ie you are working for an employer of another member state but have been posted to work in the UK. This exemption only applies for the period of your posting; or
• are a student and you work for less than 20 hours per week. You must have a registration certificate that includes a statement that you are a student and you have access to the UK labour market for 20 hours per week; or

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