Homelessness code of guidance for local authorities

Annex 1: The habitual residence test

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

1. In practice, when considering housing applications from persons who are 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 habitually resident

2. The term ‘habitually resident’ is not defined in legislation. Local authorities should always consider the overall circumstances of a case to determine whether someone is habitually resident in the UK, the Channel Islands, the Isle of Man or the Republic of Ireland.

General principles

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

    1. (a) the test focuses on the fact and nature of residence;

    2. (b) 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 a person receiving short term medical treatment is not resident;

    3. (c) the most important factors for habitual residence are the length, continuity and general nature of actual residence rather than intention;

    4. (d) the practicality of a person’s arrangements for residence is a necessary part of determining whether it can be described as settled and habitual;

    5. (e) 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 they are 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 their former period of habitual residence, they will be immediately habitually resident.

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

    1. (a) when did the applicant leave the UK?

    2. (b) how long did the applicant live in the UK before leaving?

    3. (c) why did the applicant leave the UK?

    4. (d) how long did the applicant intend to remain abroad?

    5. (e) why did the applicant return?

    6. (f) did the applicant’s partner and children, if any, also leave the UK?

    7. (g) did the applicant keep accommodation in the UK?

    8. (h) if the applicant owned property, was it let, and was the lease timed to coincide with the applicant’s return to the UK?

    9. (i) what links did the applicant keep with the UK?

    10. (j) have there been other brief absences? If yes, obtain details

    11. (k) why has the applicant come to the UK?

9. If the applicant has arrived in the UK within the previous 2 years and is not resuming a period of habitual residence, consideration should be given to their reasons for coming to the UK, and in particular to the factors set out below.

Applicant is joining family or friends

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

    1. (a) has the applicant sold or given up any property abroad?

    2. (b) has the applicant bought or rented accommodation or are they staying with friends?

    3. (c) is the move to the UK intended to be permanent?

Applicant’s plans

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

    1. (a) if the applicant plans to remain in the UK, is the applicant’s stated plan consistent with their actions?

    2. (b) were any arrangements made for employment and accommodation (even if unsuccessful) before the applicant arrived in the UK?

    3. (c) did the applicant buy a one-way ticket?

    4. (d) did the applicant bring all their belongings?

    5. (e) is there any 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 the UK

14. To be habitually resident in a country an applicant must have actually taken up residence and lived there for a period. It is not sufficient that the applicant came to the UK voluntarily and for settled purposes. They must be resident in fact for an appropriate period of time which demonstrates that their residence has become, and is likely to remain, habitual in nature. The appropriate period of time need not be lengthy if the facts indicate that a person’s residence has become habitual in nature at an early stage. In some circumstances the period can be as little as a month, but it must be a period which is more than momentary in a claimant’s life history. A period of between 1 and 3 months is likely to be appropriate to demonstrate that a person’s residence is habitual in nature.

Length of residence in another country

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

    1. (a) how long did the applicant live in the previous country?

    2. (b) does the applicant have any remaining ties with their former country of residence?

    3. (c) has the applicant stayed in different countries outside the UK?

16. 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

17. An applicant is likely to be habitually resident in the UK, the Channel Islands, the Isle of Man or the Republic of Ireland, despite spending time abroad, if their centre of interest is located in one of these places.

18. People who maintain their centre of interest in the UK, the Channel Islands, the Isle of Man or the Republic of Ireland, 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 UK, the Channel Islands, the Isle of Man or the Republic of Ireland, are unlikely to be habitually resident in the UK, the Channel Islands, the Isle of Man or the Republic of Ireland.

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

    1. (a) home;

    2. (b) family ties;

    3. (c) club memberships;

    4. (d) finance accounts.

20. If the centre of interest appears to be in the UK, the Channel Islands, the Isle of Man or the Republic of Ireland but the applicant has a home somewhere else, authorities should consider the applicant’s intentions regarding the property.

21. In certain cultures, e.g. the Asian culture, it is quite common 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 UK, the Channel Islands, the Isle of Man or the Republic of Ireland 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.