CBTM10070 - Residence and immigration: residence - right to reside in the UK

Child Benefit (General) Regulations 2006, regulations 23 and 27

The Treaty establishing the European Community Directive 2004/38/EC of the European Parliament and the Council of 29 April 2004

The Immigration (European Economic Area) Regulations 2006

For claims made on or after 1 May 2004, regulations 23(4) and 27(3) of the Child Benefit (General) Regulations 2006, require the claimant to have a right to reside in the United Kingdom.

The following have a right to reside in the United Kingdom:

  • UK nationals
  • A person from the Common Travel Area
  • A ‘qualified person’
  • A family member of a ‘qualified person’
  • A person who has ceased activity as an employed person
  • A work seeker
  • A person who has been granted settled status under the European Union Settled Status Scheme
  • A person who has acquired a Permanent Right of Residence
  • Person who has leave to enter or remain in the United Kingdom

United Kingdom nationals

All UK nationals have a right to reside in the United Kingdom.

(Where a claimant is not a UK or Irish national and is dependent on a person of Northern Ireland for entitlement to Child Benefit, the person of Northern Ireland national must have the equivalent of a qualifying right to reside in the United Kingdom.  The conditions setting out who has a right to reside as a ‘qualified person’  are set out in the Regulation 5-10 of the Immigration (European Economic Area) 2016 Regulations.)

The Common Travel Area

All UK nationals and those with a right to reside in the Common Travel Area (which covers the UK, the Republic of Ireland, the Channel Islands, and the Isle of Man).

Qualified persons

A ‘qualified person’ is an EEA national or a Swiss national who is in the United Kingdom with Pre-settled status granted by the Home Office and by virtue of EU legislation is a:

  • worker
  • self-employed person
  • self-sufficient person
  • retired person
  • student
  • self-employed person who has ceased activity
  • family member of a ‘qualified person’.

A worker

Means a worker within the meaning of Article 39 of the Treaty establishing the European Community.

The European Court of Justice has interpreted the concept of worker as covering a person who:

  • undertakes genuine and effective work;
  • under the direction of someone else;
  • for which he is paid.

A person who is no longer working shall not cease to be treated as a worker if:

A worker does not cease to be a qualified person solely because:

  • he is temporarily incapable of work as a result of illness or accident.

or

  • he is in duly recorded voluntarily unemployment after having been employed in the United Kingdom, provided he is registered as a jobseeker with the relevant employment office; and
  • he was employed for one year or more before becoming unemployed;
  • he has been unemployed for no more than six months.

or

  • he can provide evidence that he is seeking employment in the United Kingdom and has a genuine chance of being engaged.

or

  • he is involuntary unemployed and has embarked on vocational training; or
  • he has voluntarily ceased working and embarked on vocational training that is related to his previous employment.

A person who has taken time off work in connection with childbirth or placement for adoption and is intending to return to their employment once the leave has expired remains a worker whilst they are on statutory leave from their employer.

A self-employed person means a person who establishes himself in order to pursue activity as a self-employed person in accordance with Article 43 of the Treaty establishing the European Community.

A person who is no longer in self-employment shall not cease to be treated as a self-employed person if he is temporarily unable to pursue his activity as a self-employed person as the result of an illness or accident.

A self-sufficient person

A self-sufficient person means a person who has

  • sufficient resources for himself and his family members not to become a burden on the social assistance system of the United Kingdom during his period of residence; and
  • comprehensive sickness insurance cover for himself and his family members in the United Kingdom or is ordinarily resident in the UK (see CBTM10020). 

Income Support, income-based Jobseeker’s Allowance, Pension Credit and Universal Credit are generally considered as social assistance. 

A retired person

A retired person is a person who has been employed or self-employed

  • and in receipt of
    • An invalidity pension or early retirement pension or
    • Old age benefits or
    • Survivors benefits or
  • a pension in respect of industrial accident or disease and
  • is sufficient to avoid him and his family members becoming a burden on public funds and
  • Is covered by comprehensive sickness insurance for him and his family members in respect of all risks in the United Kingdom.

A student

A student means a person who

  • is enrolled in a recognised educational establishment in the United Kingdom for the principle purpose of following a vocational training course; and
  • assures the Secretary of State that he and his family members have sufficient resources to avoid him becoming a burden on public funds; and
  • is covered by comprehensive sickness insurance for himself in the United Kingdom or is ordinarily resident in the UK (see CBTM10020). 

A self-employed person who has ceased activity

A self-employed person who has ceased activity means a person who terminates self-employment

  • on or after state pension age and
  • has been self-employed in the United Kingdom for at least 12 months and
  • has resided continuously in the United Kingdom for more than three years or
  • because of permanent incapacity for work and has resided continuously in the United Kingdom for more than two years or
  • because of permanent incapacity for work due to an accident at work or occupational illness which entitles him to a pension payable wholly or partly by the State and has resided and been self-employed in the United Kingdom.

A family member of a ‘qualified person’

For the purposes of those who have a right to reside as a self-sufficient person (P), where the family members of the person concerned also reside in the United Kingdom and their right to reside is dependent upon their being family members of P:

  • the requirement for P to have sufficient resources not to become a burden on the social assistance system of the United Kingdom during his period of residence shall only be satisfied if P’s resources and those of his dependent family members are sufficient to avoid P and his dependent family members becoming such a burden.
  • The requirement for P to have comprehensive sickness insurance cover in the United Kingdom shall only be satisfied if P and his dependent family members have such cover.

For the purposes of those who are relying on a right to reside as a student, where family members of the student reside in the United Kingdom with them, the student, the requirement for the student must have sufficient resources not to become a burden on the social assistance system of the United Kingdom during his period of residence and this shall only be satisfied if the student’s resources and those of their family members are sufficient to avoid the student and the family members becoming such a burden.

For the purposes of those relying on a right to reside as a self-sufficient person or as a student(the person concerned), the resources of the person concerned and, where applicable, any dependent family members, are to be regarded as sufficient if they exceed the maximum level of resources which a United Kingdom national and his family members may possess if he is to become eligible for social assistance under the United Kingdom benefit system.

Family member

Family member of a ‘qualified person’ in the case of a student means a spouse or civil partner and dependent children. In any other case family members means

  • spouse or his civil partner and descendants of the claimant, spouse or civil partner who are dependent on him/them or are under 21.
  • dependent relatives of the claimant or civil partner in the ascending line.

Work seekers

EEA nationals and Swiss nationals who are work seekers have a right to reside for six months or longer provided they are genuinely seeking work.

A person who has been granted settled status under the European Settled Status Scheme (EUSS)

An EEA or Swiss national qualifies for settled status under the EUSS where they were living in the UK before the end of the of December 2020. They must have applied for settled status. More information can be found on GOV.UK at https://www.gov.uk/settled-status-eu-citizens-families

‘Apply to the EU Settlement Scheme (settled and pre-settled status)’.

Permanent right of Residence

The following persons shall acquire the right to reside in the United Kingdom permanently;

An EEA or Swiss national with pre-settled status who has resided in the United Kingdom for a continuous period of five years can acquire permanent residence in the United Kingdom.

This means that to acquire permanent residence, the EEA or Swiss national must have been in one of the following categories for a continuous period of five years:

•             A worker

•             A Self-employed person

•             A Jobseeker

•             A Student

•             A Self-sufficient person

A family member of such a person who has resided in the United Kingdom with them would also have the right of permanent residence (note that ‘resided in the United Kingdom with’ relates to presence in the UK, it does not require living in a common family home).

·         an EEA or Swiss national worker or self-employed person who has ceased activity;

·         the family member of an EEA or Swiss national worker or self-employed person where-

·         the worker or self-employed person has died;

·         the family member resided with him immediately before his death; and

·         the worker or self-employed person had resided continuously in the United Kingdom for at least the two years immediately before his death or the death was the result of an accident at work or an occupational disease;

·         a person who-

·         has resided in the United Kingdom and has had a right to reside for a continuous period of five years; and

·         was at the end of that period, a family member of an EEA or Swiss national who has retained the right of residence.

 

A family member means:

•             The spouse or civil partner of an EEA or Swiss national, where the relationship was established by 31 December 2020

•             Direct descendants (children, grandchildren) of the EEA or Swiss national, or of their spouse or civil partner, who are:

·                     under the age of 21, or

·                     dependent upon the EEA or Swiss national or their spouse or civil partner

•             Dependent direct relatives in the ascending line (parent or grandparent) of the EEA or Swiss national or their spouse or civil partner, where the relationship was established by 31 December 2020

Extended family members, also known as a ‘dependent relative’ (other than a spouse, civil partner, durable partner, child or dependent parent), who held valid EEA residence documentation (or applied for this by 11pm on 31 December 2020 and were subsequently granted it) immediately before the end of the transition period, continued to have rights of residence under the EEA 2016 Regulations. They still needed to apply to the EUSS by 30 June 2021. These extended family members of the sponsoring EEA national person (including a relative of the EEA national’s spouse or civil partner) must be:

•             ‘subject to a non-adoptive legal guardianship order in favour of the EEA national , has lived with them since the order was put in place and has created a family life and personal relationship with the EEA national that involved dependency on the EEA national and the assumption of parental responsibility for that person by the EEA national’

•             a dependant of the sponsor,

•             a member of their household, or

•             in strict need of their personal care from the sponsor or their spouse or civil partner on serious health grounds.

an EEA or Swiss national worker or self-employed person who has ceased activity;

the family member of an EEA or Swiss national worker or self-employed person where-

the worker or self-employed person has died;

the family member resided with him immediately before his death; and

the worker or self-employed person had resided continuously in the United Kingdom for at least the two years immediately before his death or the death was the result of an accident at work or an occupational disease;

a person who-

has resided in the United Kingdom as a qualified person for a continuous period of five years; and

was at the end of that period, a family member of an EEA or Swiss national who has retained the right of residence.

Once acquired, the right of permanent residence shall be lost only through absence from the United Kingdom for a period exceeding 5 consecutive years.


A person who requires leave to enter or remain in the United Kingdom

Generally, non-UK and non-Irish nationals, require leave to enter or remain in the United Kingdom under the new immigration system. There are two kinds of leave:

  • limited leave to enter or remain (meaning limited in terms of time - (e.g., six months or four years); or
  • indefinite leave to enter or remain.

A person with either leave to enter or remain under the new immigration system, including those whose leave to enter or remain is given on the basis that they have ‘no recourse to public funds’, have a right to reside in the United Kingdom.

People, who have limited leave, are generally excluded from Child Benefit because of their immigration status. See CBTM 10120 for more information.

A person who requires leave to enter or remain in the UK but does not have it, will not have a right to reside in the United Kingdom.