British and Irish citizens - claiming benefits

UK citizens

If you're a British citizen you have an automatic right to reside in the UK, as well as in Ireland, Isle of Man and Channel Islands. This is known as the common travel area and you will also be considered to be habitually resident in the UK if you've been living in any of these places.

However, if you've recently returned to the UK after a period living outside of the common travel area, you may have to show that you satisfy the habitual residence test in order to claim certain means-tested benefits. You should not be subject to the test if you've simply been abroad on a long holiday. In these cases you should be treated as a 'returning resident'. However, if you've spent three months or more living or working abroad you could find yourself subject to the test when you return to the UK, particularly if you no longer have property or close family in the UK.

The HRT looks at what ties you already have in the UK and what you are doing to make the UK the centre of your life. The Department for Work and Pensions (DWP) or other benefit agencies will also want to know how much you have cut ties with the country where you were living before. You will be asked a series of questions tailored to your individual circumstances to try and find out this information. You should be ready to give as much evidence and documentation as you can if you are asked these type of questions.

The DWP, your local authority or HMRC will decide at what point you can be viewed as habitually resident, depending on how long you have been away, why you were abroad, and what ties you kept with the UK during this time.

Rules that came into force on 1 January 2014 mean that, if you're claiming income-based jobseeker's allowance and do need to show that you are habitually resident, you cannot be viewed as habitually resident until you've been living in the UK or elsewhere in the common travel area for at least three months. This means that if you claim income-based jobseeker's allowance immediately on your return to the UK from outside this area you won't receive this benefit for at least three months.

If you're planning to move back to the UK and you think you will need means-tested benefits and housing straight away, think about how you would cope if you can't meet the conditions of the HRT for three months or more.

Irish citizens

Irish citizens automatically have a right to reside in the UK as part of the common travel area. If you were habitually resident in Ireland or any of the other places in the common travel area before you came to the UK, you will automatically satisfy the conditions of the HRT.

However, if you come to the UK from a country outside the common travel area, you will have to prove you're habitually resident here to meet those conditions. As with UK citizens returning from abroad, from 1 January 2014 you cannot satisfy the HRT in order to claim income-based jobseeker's allowance until you have been living in the UK, Ireland, Channel Islands or Isle of Man for at least three months.

Next steps

• What is the habitual residence test
• The habitual residence test - how a decision is made
• What to do if you fail the habitual residence test

• If you need more help

Other useful information

• Case-law examples of the habitual residence test at www.parliament.uk - go to page 12
• What the European law says – the EC Directive 2004/38 at www.eur-lex.europa.eu
• What the UK law says – Immigration (EEA) Regulations 2006 at www.legislation.gov.uk
• www.gov.uk