Your local council might refuse to house you if you don’t pass the habitual residence test, at which point you’d need to appeal the decision or explore other options. The test applies to most social security payments, including universal credit (which usually covers rent too) and pension credit, as well as help with finding affordable housing.
Passing the habitual residence test
While there isn’t a specific time requirement, having lived in the UK for three months or more is often helpful in boosting your chances of passing – but there are no guarantees.
Your employment status can also be a major factor. Having a job in the UK is considered a good indicator that you’re settled, and even if you’re self-employed or working part-time, having steady work can demonstrate that you have ties to the country. It can count in your favour if you’ve applied for jobs and are actively searching for work, too.
Having family, whether it be a spouse, children or extended relatives, who are already settled in the UK can put you in a stronger position. Children attending school in the country is often considered to be particularly strong evidence that you are making the UK your main home.
Other factors that might be considered include your financial situation, whether you’ve registered with a GP, and if you’re paying UK taxes. All of these things together help build a picture of whether you are habitually resident – settled, in other words – in the UK.
Refugees and those who fled violence under specific resettlement schemes (like the Ukraine Family Scheme or the Afghan Citizens Resettlement Scheme) are usually exempt from the habitual residence test and allowed to start using public services immediately.
The test can make things tricky for migrants in need of financial support, especially when they need help urgently. Little research has been done into its effects – and the government doesn’t release figures on the role it plays in universal credit claims – but expert organisations say it can lock people out from the support they need.
In the early days of the Covid-19 pandemic, the Institute for Public Policy Research published research showing that around 10% of universal credit claims involving a habitual residence test were rejected, and called for the government to scrap it while people were losing their livelihoods and facing uncertain futures.
The think tank also identified problems in how the test works, such as “burdensome requests for claimants to collect historic documentation stretching back many years”, “‘tick-box’ exercises without full investigations”, and poor communication about decisions made. EU migrants who were self-employed or on zero-hours contracts were disproportionately affected, according to the report, because decision-makers didn’t view the way they made a living as “genuine and effective”.
A French citizen, who had been living in the UK for 10 years told researchers: “I was not even aware that it was called the habitual residence test, until I received the outcome and I was told that I failed it. I had no idea what was going on and it wasn’t clear what they were looking for.”
Evidence you can provide
To pass the habitual residence test, you’ll need to show proof to back up your claim that you’re staying in the UK long-term. The more evidence you can provide, the better your chances of passing the test and securing a home. The council will want to see record of when you last entered in the UK, so save any relevant boarding passes and proof that you ended a tenancy in the country you last lived in, if relevant.
Proof of employment, again, is one of the strongest pieces of evidence you can present. If you have a job, a copy of your contract or recent wage slips will show that you’re working in the UK. Tax records or invoices are a good alternative if you’re self-employed.
You’ll also need to show evidence of your finances, most likely bank statements, to prove that you’re managing your money in the UK. These can show that you’re paying taxes, utility bills or rent, depending on your current housing situation.
Proof of receiving healthcare or being registered with a GP can be helpful, as well as records showing that your kids are enrolled at a UK school.
Being involved with your local community in the UK can be really helpful too – you might be able to show proof that you’re taking classes locally or a member at a gym, for example.
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Returning British or Irish citizens will likely have more to fall back on when the time comes to prove your plans to stay. Evidence of time spent living in the UK previously – old gas or energy bills, bank statements and rent or mortgage records, for example – can help.
Lastly, providing travel documents that show when you arrived in the UK can help establish how long you’ve been in the country. The habitual residence test considers the length of time you’ve spent in the UK, and proving that you’ve been here for an extended period can support your case.
Having what’s known as the right to reside is a prerequisite to passing the habitual residence test, meaning you must be a British or Irish citizen; have indefinite leave to remain (or already have permanent residence); have pre-settled or settled status according to the EU Settlement Scheme; or be exempt from immigration control.
What to do if you’re refused help with housing because of habitual residence
If you’re refused housing support because you didn’t pass the habitual residence test, you should first make sure you get a written explanation of why your application was refused. Understanding the reasons behind the decision will help you figure out your next steps. It might be that you didn’t provide enough evidence or that the council didn’t consider all the relevant factors.
Getting a clear explanation then means you can ask for a review, known as a mandatory reconsideration, as long as you ask for it within a month of your initial application being refused. You’ll need to hand over extra evidence or clarify your situation to show that you meet the habitual residence criteria.
If you didn’t provide proof of employment in your first application, for example, or if you only recently started a job, you should gather those documents and submit them as part of your appeal. That you’ll have been in the UK longer after going through the application process and receiving a decision, compared to when you first submitted your evidence, can put you in a better position in itself. If you were denied but didn’t lodge an appeal in time, you can simply reapply after a little more time has passed, by which point your circumstances might have changed and passing the test might be much easier.
If this review is still denied, you can appeal. Remember to submit a new review with extra supporting evidence at the same time, otherwise the panel will only consider the same set of documents that they denied.
And as with all complex housing issues, it’s a good idea to contact an expert housing organisation or local advisers. Try Citizens Advice, Shelter or a local legal aid initiative for help understanding your rights and navigating the appeals process. If you’re facing uncertainty around your right to remain in the UK, organisations like the AIRE Centre can give you free advice.
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