Annex 2: Habitual residence

Guidance on considering applications from persons who are subject to the habitual residence test.

1. In practice, when considering housing applications from persons subject to the habitual residence test, it is only necessary to investigate habitual residence if the applicant has arrived or returned to live in the UK during the 2 year period prior to making the application.

Definition of habitual residence

2. The term ‘habitual residence’ is not defined in legislation. Housing authorities should always consider the overall circumstances of a case to determine whether someone is habitually resident in the Common Travel Area.

General principles

3. When deciding whether a person is habitually resident, consideration must be given to all the facts of each case in a common sense way. It should be remembered that:

  • the test focuses on the fact and nature of residence
  • a person who is not resident somewhere cannot be habitually resident there
  • residence is a more settled state than mere physical presence in a country. To be resident a person must be seen to be making a home. It need not be the only home or a permanent home but it must be a genuine home for the time being. For example, a short stay visitor or person receiving short term medical treatment is not resident
  • the most important factors for habitual residence are length, continuity and general nature of actual residence rather than intention
  • the practicality of a person’s arrangements for residence is a necessary part of determining whether it can be described as settled and habitual
  • established habitual residents who have periods of temporary or occasional absence of long or short duration may still be habitually resident during such absences

Action on receipt of an application

Applicant came to live in the UK during the previous 2 years

4. If it appears that the applicant came to live in the UK during the previous 2 years, authorities should make further enquiries to decide if the applicant is habitually resident, or can be treated as such.

Factors to consider

5. The applicant’s stated reasons and intentions for coming to the UK will be relevant to the question of whether he or she is habitually resident. If the applicant’s stated intention is to live in the UK, and not return to the country from which they came, that intention must be consistent with their actions.

6. To decide whether an applicant is habitually resident in the UK, authorities should consider the factors set out below. However, these do not provide an exhaustive check list of the questions or factors that need to be considered. Further enquiries may be needed. The circumstances of each case will dictate what information is needed, and all relevant factors should be taken into account.

Why has the applicant come to the UK?

7. If the applicant is returning to the UK after a period spent abroad, and it can be established that the applicant was previously habitually resident in the UK and is returning to resume his or her former period of habitual residence, he or she will be immediately habitually resident.

8. In determining whether an applicant is returning to resume a former period of habitual residence authorities should consider:

  • when the applicant left the UK
  • how long the applicant lived in the UK before leaving
  • why the applicant left the UK
  • how long the applicant intended to remain abroad
  • why the applicant returned
  • whether the applicant’s partner and children, if any, also left the UK
  • whether the applicant kept accommodation in the UK
  • if the applicant owned property, whether it was let, and whether the lease was timed to coincide with the applicant’s return to the UK
  • what links the applicant kept with the UK
  • whether there have been other brief absences
  • why the applicant has come back to the UK

9. If the applicant has arrived in the UK within the previous two years and is not resuming a period of habitual residence, consideration should be given to his or her reasons for coming to the UK, and in particular to the factors set out below.

Applicant is joining family or friends

10. If the applicant has come to the UK to join or rejoin family or friends, authorities should consider:

  • whether the applicant has sold or given up any property abroad
  • whether the applicant has bought or rented accommodation or is staying with friends
  • whether the move to the UK is intended to be permanent

Applicant’s plans

11. Authorities should consider the applicant’s plans, e.g:

  • if the applicant plans to remain in the UK, whether their stated plan is consistent with their actions
  • whether any arrangements were made for employment and accommodation (even if unsuccessful) before the applicant arrived in the UK
  • whether the applicant bought a one-way ticket
  • whether the applicant brought all their belongings
  • whether there is evidence of links with the UK, e.g. membership of clubs

12. The fact that a person may intend to live in the UK for the foreseeable future does not, of itself, mean that habitual residence has been established. However, the applicant’s intentions along with other factors, for example the disposal of property abroad, may indicate that the applicant is habitually resident in the UK.

13. An applicant who intends to reside in the UK for only a short period, for example for a holiday or to visit friends is unlikely to be habitually resident in the UK.

Length of residence in another country

14. Authorities should consider the length and continuity of an applicant’s residence in another country:

  • whether the applicant has any remaining ties with his or her former country of residence
  • whether the applicant stayed in different countries outside the UK

15. It is possible that a person may own a property abroad but still be habitually resident in the UK. A person who has a home or close family in another country would normally retain habitual residence in that country. A person who has previously lived in several different countries but has now moved permanently to the UK may be habitually resident here.

Centre of interest

16. An applicant is likely to be habitually resident in the Common Travel Area despite spending time abroad, if his or her centre of interest is located in one of these places.

17. People who maintain their centre of interest in the Common Travel Area for example a home, a job, friends, membership of clubs, are likely to be habitually resident there. People who have retained their centre of interest in another country and have no particular ties with the Common Travel Area are unlikely to be habitually resident.

18. Authorities should take the following into account when deciding the centre of interest:

  • home
  • family ties
  • club memberships
  • finance accounts

19. If the centre of interest appears to be in the Common Travel Area but the applicant has a home somewhere else, authorities should consider the applicant’s intentions regarding the property.

20. It is not uncommon for a person to live in one country but have property abroad that they do not intend to sell. Where such a person has lived in the Common Travel Area for many years, the fact that they have property elsewhere does not necessarily mean that they intend to leave, or that the applicant’s centre of interest is elsewhere.