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Housing Benefit Decision Makers’ Guide Contents

Chapter 07 – People from abroad

Contents

People from abroad 7000

Relevant law 7002

The Immigration (European Economic Area) Regulations 2006 7003

Person subject to immigration control 7005

Person from abroad 7006

Person subject to immigration control 7007

Person from abroad 7016

Not a person from abroad 7019

Habitual residence 7020

Factors to be considered 7027

Evidence to establish habitual residence 7037

Returning residents 7040

“Swaddling” 7043

Right to reside 7046

UK nationals 7046

A person granted leave to enter or remain 7048

Refugees 7052

Qualified person 7053

Worker 7056

What is genuine and effective work? 7065

Retaining worker status 7066

Self-employed person 7069

Jobseeker 7073

Self-sufficient person 7074

Student 7077

Family member of a qualified person 7079

“Extended family member” 7087

“Family member who has retained the right of residence” 7088

“Worker or self-employed person who has ceased activity” 7090

Permanent right of residence – Article 17 7095

Other permanent rights of residence 7097

A8 nationals 7102

A8 national who are not required to register 7110

A2 nationals 7113

A2 nationals who do not require authorisation 7116

Transitional provisions 7117

Chapter 05 – People from abroad

7000 This chapter explains how to deal with people from abroad.

7001 On 1 January 1986, Portugal and Spain acceded to the European Community. At that time, it was not envisaged that the UK’s social security system would have a magnetic effect. However, many migrants from throughout Europe came to the UK to lawfully exploit the system. The Government’s response was the habitual residence test which was introduced into housing benefit in August 1994. The purpose was to prevent “benefit tourism” by people who had little or no recent connection with the UK.

Since the introduction of the habitual residence test, the number of people entering the UK to work and live has grown steadily. The Government believed that the habitual residence test served a useful purpose in discouraging benefit tourism but that it could not restrict longer-term access to income-related benefits to people who decided to live indefinitely in the UK without becoming economically active.

The accession of ten more countries to the European Union from 1 May 2004 gave added urgency to the development of measures to reduce the scope for exploitation of income-related benefits, since it brought into the European Union very large numbers of people whose living standards were, in general, significantly lower than those in the UK.

Added to that, the UK was one of only three countries to open up its labour market to nationals of the accession States, and to have permitted free movement of workers (Ireland and Sweden being the other two). This inevitably meant that greater numbers of migrants could be expected to the UK than to most other European Union States. To combat the anticipated in-flow the right to reside test was introduced on 1 May 2004.

The Immigration (European Economic Area) Regulations 2006 (“the 2006 Regulations”) transpose the UK’s obligations under Council Directive (EC) 2004/38 (“the residence Directive”) into domestic legislation. The residence Directive repealed the nine previous residence Directives.

Housing benefit regulations refer to both the residence Directive and the 2006 Regulations. The residence Directive provides more rights of residence than before and the government made the decision to tighten the right to reside test to exclude certain rights of residence contained in the residence Directive.



Relevant law

7002 The Social Security (Bulgaria and Romania) (Amendment) Regulations (Northern Ireland) 2006

The Housing Benefit Regulations (Northern Ireland) 2006

The Housing Benefit (Persons who have attained the qualifying age for state pension credit) Regulations (Northern Ireland) 2006

The Immigration (European Economic Area) Regulations 2006 – (“the 2006 Regulations”)

The Accession (Immigration and Worker Authorisation) Regulations 2006 – (“the Authorisation Regulations”)

The Accession (Immigration and Worker Registration) Regulations 2004 – (“the Registration Regulations”)

The Immigration and Asylum Act 1999

Council Directive (EC) 2004/Council Directive (EC) 2004/38

The Immigration (European Economic Area) Regulations 2006

7003 The 2006 Regulations reflect the UK’s obligations under European Community law and, as such, provide a scheme whereby European Economic Area nationals and their family members can assert rights of entry into, or residence in, the UK.

All European Economic Area nationals enjoy free movement rights in the European Economic Area. This means that they are not subject to the Immigration Rules and may come to the UK and reside here in accordance with the 2006 Regulations. They do not require permission from the Home Office to enter or remain, nor do they require a document confirming their free movement status.

However, if a European Economic Area national is exercising Treaty rights* in the UK then they may request that they be issued with a registration certificate or a document certifying permanent residence as confirmation of their right of residence under European Community law.

* A person exercises a Treaty right by moving to another European Economic Area country as a worker, self-employed person, jobseeker, student or self-sufficient person. In the 2006 Regulations these persons are known as “qualified persons”.

7004 When deciding a claim from someone who has arrived from abroad there are two distinct issues that must be considered and they should be addressed in the following order



1. Person subject to immigration control – applies to the claimant, partner and dependants

2. Person from abroad – applies to the claimant only.

Person subject to immigration control

7005 A person subject to immigration control is not entitled to housing benefit1.



1 Immigration and Asylum Act 1999, sec 115(1) & (2)

Person from abroad

7006 A person from abroad who is liable to make payments in respect of a dwelling shall be treated as if he were not so liable.



1 HB Regs (NI); reg 10; HB (SPC) Regs (NI), reg 10

Person subject to immigration control

7007 A person subject to immigration control is defined as a person who is not a European Economic Area national and who1



1. requires leave to enter or remain in the UK but does not have it or

2. has leave subject to the condition “no recourse to public funds” or

3. is a sponsored immigrant or

4. has had limited leave extended only because he has appealed a decision to vary or refuse to vary that leave.

1 Immigration and Asylum Act 1999, sec 115(9)

7008 Immigration stamps on passports of nationals of countries that join the European Union cease to be applicable from the date of accession.

7009 Leave in this context means permission. An Immigration Officer when admitting a person to the UK may give leave to enter indefinitely or for a limited period. Indefinite leave is always granted without conditions. If leave is granted for a limited period of time, conditions may be imposed such as “no recourse to public funds” or “prohibited from employment”. Leave to remain may be granted by the Home Office after a limited period of leave to enter has expired.

7010 After admission to the UK any application for an extension of the time limit on, or variation of conditions attached to a person's stay in the UK must be made to the Home Office before the applicant's current leave to enter or remain expires. The applicant is treated as having the leave to remain until the Home Office makes a decision on the application for extension and any conditions attached to the original leave continue to apply.

7011 There are certain special categories of leave such as

1. Exceptional leave to remain

2. Discretionary leave to remain

3. Humanitarian Protection

4. Leave to remain granted outside the Immigration Rules.

7012 Sponsored immigrants are given indefinite leave to remain on the understanding that they have someone who is prepared to support them by providing accommodation and day-to-day living expenses. Occasionally there may be more than one sponsor. The Home Office requires that each sponsor complete and sign a written maintenance undertaking.

7013 A person subject to immigration control is normally excluded from benefit. However, there are a number of categories of persons who are not excluded1

1. persons with leave subject to the condition “no recourse to public funds” but whose funds from abroad have been temporarily interrupted* or

2. sponsored immigrants whose sponsor has died or

3. sponsored immigrants who have been in the UK for 5 years or

4. a national of a country, which has ratified either the European Convention on Social and Medical Assistance or the Council of Europe Social Charter and is lawfully present** in the UK. (At present, Turkey (European Convention on Social and Medical Assistance), Croatia and the former Yugoslav Republic of Macedonia (Council of Europe Social Charter (now known as European Social Charter)).)

1 Part I of the Schedule to the SS (Immigration and Asylum) Conseq Amdts Regs (NI) 2000

7014 * Limited to housing benefit for periods not exceeding 42 days during any one period of leave1.



1 HB Regs (NI); reg 10(6); HB (SPC) Regs (NI), reg 10(6)

7015 ** Lawfully present means that a person who requires leave to enter and remain in the UK has been granted that leave.



Person from abroad

7016 A person from abroad is defined as a claimant who is not habitually resident in the UK, the Channel Islands, the Isle of Man or the Republic of Ireland. For the purposes of this definition, no person shall be treated as habitually resident in the UK, the Channel Islands, the Isle of Man or the Republic of Ireland if he does not have a right to reside in the UK, the Channel Islands, the Isle of Man or the Republic of Ireland1.



1 HB Regs (NI); reg 10; HB (SPC) Regs (NI), reg 10

7017 The habitual residence is a two-part test. The decision maker must decide in the following order1



1. is the claimant habitually resident and

2. does the claimant have the right to reside?

7018 If it is determined that the claimant is not habitually resident then it is not necessary to consider the right to reside question.



1 CIS/2559/2005

Not a person from abroad

[See HB Memo Vol 4/13]

7019 There are a number of categories of persons who are not a person from abroad1

1. a worker or self-employed person for the purposes of Council Directive 2004/38/EC or anyone who retains that status

2. a family member of either of the above

3. a person with a right to reside permanently in the UK by virtue of Article 17 of Council Directive 2004/38/EC

4. a person who is treated as a worker for the purpose of the definition of “qualified person” in regulation 6(1) of the Immigration (European Economic Area) Regulations 2006 pursuant to regulation 5 of the Accession (Immigration and Worker Registration) Regulations 2004 or regulation 6 of the Accession (Immigration and Worker Authorisation) Regulations 2006

5. a refugee

6. a person who has been granted exceptional leave to enter or remain in the UK outside the immigration rules

7. a person who has humanitarian protection granted under the immigration rules

8. a person who is not a person subject to immigration control and who is in the UK as a result of his deportation from another country to the UK

9. a person in Northern Ireland who left the territory of Montserrat after 1 November 1995 because of the effect on that territory of a volcanic eruption

10. a person in receipt of Income Support, an income-based Jobseeker’s Allowance or an income-related Employment and Support Allowance.

1 HB Regs (NI); reg 10(5); HB (SPC) Regs (NI), reg 10(5)

Habitual residence

[See HB Memo Vol 4/13]

7020 There is no statutory definition of what habitual residence is. Therefore, it is to be given its natural and ordinary meaning.

7021 The concept of habitual residence is relatively new. Much of the case law in this area relates to ordinary residence, a concept that is virtually synonymous with habitual residence. Numerous Commissioners and Courts have attempted to define its meaning.

7022 Lord Denning stated, “The words ordinarily resident mean that the person must be habitually and normally resident here, apart from temporary or occasional absences of long or short duration”1.



1 R v Barnet London Borough Council, ex parte Shah [1983] 2 AC 309

7023 Lord Scarman, “I unhesitatingly subscribe to the view that ordinarily resident refers to a man’s abode in a particular country which he has adopted voluntarily and for settled purposes as part of the regular order of his life for the time being, whether of short or of long duration.” 1



1 R v Barnet London Borough Council, ex parte Shah [1983] 2 AC 309

7024 Viscount Cave, “The expression ordinarily resident …connotes residence in a place with some degree of continuity and apart from accidental or temporary absences”1.



1 Levene v Commissioners of Inland Revenue [1928] AC 217

7025 The landmark decision on habitual residence in the context of social security benefits is the decision of the House of Lords in Nessa v. The Chief Adjudication Officer and Another, reported as R(IS) 2/00. The Lords held that



1. a person coming to the UK for the first time and expressing an intention to settle here cannot be accepted as habitually resident until he can show residence, in fact, for a period which shows that the residence has become habitual and will or is likely to continue to be habitual. It is a question of fact to be determined on the circumstances of each case whether and when habitual residence has been established. The requisite period is not a fixed one and may in an appropriate case be short

2. the position of someone coming to the UK other than for the first time is different. In some cases the adjudication officer might be satisfied that the person concerned is resuming a habitual residence previously held.

7026 The term “appreciable period of time” is often erroneously seen as an essential element of habitual residence. Time already spent in Northern Ireland is a significant factor that will help demonstrate a commitment to make Northern Ireland a claimant’s habitual residence but it is not always necessary where other factors already point to habitual residence having been established. Lord Slynn stated in Nessa “a month can be an appreciable period of time”. When an appreciable period of time is necessary this should be viewed as a minimum.



Factors to be considered

7027 Residence

A person must have actually taken up residence; the intention to become resident is insufficient.

7028 Settled intention

Lord Scarman stated, “…and there must be a degree of settled purpose. The purpose may be one; or there may be several. It may be specific or general. All that the law requires is that there is a settled purpose. This is not to say that the [claimant] intends to stay where he is indefinitely, indeed his purpose while settled may be for a limited period. Education, business or profession, employment, health, family or merely love of the place spring to mind as common sense reasons for a choice of regular abode. And there may well be many others. All that is necessary is that the purpose of living where one does has a sufficient degree of continuity to be properly described as settled”1.

1 R v Barnet London Borough Council, ex parte Shah 2 AC 309

7029 Continuity of residence

The time already spent in a country is closely related to settled intention. The stronger the settled intention the shorter the “appreciable period” of residence needs be. Moreover, when there is no settled intention an “appreciable period” of residence maybe sufficient to make the residence habitual. Periods of time spent in Northern Ireland making preparations to reside, before actually taking up residence, may count towards the appreciable period of time.

7030 Nature of accommodation

The nature of the accommodation is an important factor. For example, a person staying in a hotel for a month is normally regarded as a visitor. A person, who stays for a prolonged period in the home of a relative, whilst on a visit from another country, may be held not to be habitually resident.

A person who makes a home in a hotel may be habitually resident even if the stay is only temporary. A finding of habitual residence is even more likely if the home is not a hotel or lodgings but premises owned or rented by the person.

7031 Possessions

What happens to a person’s house and furniture whilst living elsewhere is an important factor. If they are retained it is likely that the person is habitually resident in the original location and not anywhere else despite the length of time in any other place.

However, if they are not retained it is likely that the person will be habitually resident in the other place despite any shortness of time.

7032 Family

Whether a person has come to join family or brings family with them is a relevant factor. Nevertheless, if, for example, the spouse remains in the country of origin this in itself would not be sufficient to prevent a person from becoming habitually resident if they have a settled intention to remain.

7033 Links with previous country of residence.

Links a person may still have with a former country, for example, bank accounts or links with an employer are of some relevance.

7034 Intention to return.

The person need only show an intention to remain in the UK for the time being. An intention to return to the country from which a person originally came is not significant if the interim period is of some length.

7035 Becoming resident or continuing residence.

It is easier to establish that a person has continued to be, or resumed being, habitually resident in a country (especially the country of origin) rather than acquiring a habitual residence for the first time.

7036 This list of factors is not exhaustive.



Evidence to establish habitual residence

7037 A typical enquiry will involve the decision maker asking questions such as those in see (HB DMG 7038 – 7039).

7038 Before coming to Northern Ireland

1. Were any preparations made in advance of moving to Northern Ireland?

2. Were any enquiries made about securing employment or accommodation?

3. Did the person sell their home or give up their right to occupy rented accommodation?

4. Did the person close or transfer any bank accounts?

5. Were any steps taken to dispose of possessions or arrange for them to be transported to Northern Ireland?

6. Did the person notify medical and/or educational authorities of their intention to come to live in Northern Ireland?

7039 On arrival in Northern Ireland



1. Does the person intend to live in Northern Ireland for the foreseeable future?

2. How will the person support themselves if benefit is not paid?

3. Has the person sought employment?

4. Has the person registered with a doctor or dentist?

5. Has the person registered their children with a school?

6. Has the person enrolled in any clubs or societies?

7. Has the person opened a bank account in Northern Ireland?

8. Does the person have any family or friends in Northern Ireland?

Returning residents

7040 The position of a returning resident is different from someone who enters the country for the first time. Nevertheless, a returning resident is not automatically resuming a previously held habitual residence. The factors that may be considered are1



1. the circumstances of the claimant’s earlier loss of habitual residence and

2. the links between the claimant and the UK while abroad and

3. the circumstances of the claimant’s return to the UK.

1 CIS/13041997 & CJSA/5394/1998

7041 The fact that a person’s absence was temporary, albeit for a long time, may be a point in favour of resuming habitual residence immediately on return. On the other hand if the claimant left the UK with no intention to return that would point against resuming habitual residence immediately on return even if the interim period is short.

7042 The fact that a person does not maintain a residence in the UK whilst temporarily abroad does not necessarily preclude them from resuming a previous habitual residence.

Swaddling”

7043 The ECJ in Swaddling1 looked at habitual residence in the context of Article 10a of Council Regulation (EC) 1408/71. The court stated (§§29-30):

The phrase ‘the Member State in which they reside’ … refers to the State in which the persons concerned habitually reside and where the habitual centre of their interests is to be found. In that context, account should be taken in particular of the employed person’s family situation; the reasons which have led him to move; the length and continuity of his residence; the fact (where this is the case) that he is in stable employment; and his intention as it appears from all the circumstances…”

For the purposes of that assessment, however, the length of residence in the Member State in which payment of the benefit at issue is sought cannot be regarded as an intrinsic element of the concept of residence within the meaning of Article 10a of Regulation No. 1408/71. In particular, when, as in the present case, an employed person, on returning to his State of origin after exercising his right to freedom of movement, has made it clear at the time of applying for income support that he intends to remain in his State of origin, where his close relatives live - whilst expressing his readiness, should the need arise in the context of some future employment, to travel from time to time to other Member States - he cannot be deemed not to satisfy the condition concerning residence within the meaning of Article 10a merely because the period of residence completed in his State of origin is too short.”

1 Case C-90/97, reported as R(IS) 6/99

7044 The Court assessed a number of factors when deciding that Mr Swaddling was habitually resident immediately on return. Nevertheless, the key issue was that Mr Swaddling had maintained close contact with the UK throughout his absence.

7045 The European Court of Justice’s judgment in Swaddling is limited to cases that fall on all fours with it1. This means that claimants can rely directly on the judgment where their circumstances are similar but where they are not the decision maker should be mindful of the principles highlighted in paragraphs 29 and 30 of the judgment. These principles are broadly similar to those considered for returning residents.

1 R(IS) 3/00




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