The Habitual Residence Test,
In order to claim Pension Credit, 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. You must also show that you have a right to reside in the Common Travel Area. (see below)
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 Pension Credit 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 from the Habitual Residence Test.
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.
Your Right to Reside.
In order to get Pension Credit 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.
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.
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
