If you are returning after a period abroad and already getting a UK DWP benefit contact:
International Pension Centre
Tel: +44 191 218 7777
Fax:+44 191 218 7021
Textphone: +44 191 218 7280
To qualify for most benefits you must satisfy the rules about residence and presence in Great Britain (GB). Your right to benefit may also be affected by your immigration status.
GB means England, Scotland and Wales. The United Kingdom means GB plus Northern Ireland . In Northern Ireland and the Isle of Man, social security benefits come under separate legislation, but this is very similar to that in GB, and periods of residence may count for UK benefits. In the Channel Islands the system is different but there is a reciprocal agreement that may allow periods of residence there to count for UK benefits. Periods of residence in another European Economic Area (EEA) country may count as residence in GB for those covered by European Union (EU) rules, and reciprocal agreements with some non-EEA countries include similar rules.
The EEA consists of the 27 member states of the European Union – Austria, Belgium, Bulgaria, Cyprus,
*Czech Republic, Denmark,
*Latvia, *Lithuania, Luxembourg, Malta, Netherlands,
*Poland, Portugal, Republic of Ireland, Romania,
*Slovenia, Spain, Sweden, UK (including Gibraltar, but not the Channel Islands or Isle of Man) – together with Iceland, Norway, and Liechtenstein.
The rules applying to EEA nationals also generally apply to Swiss nationals. If you (or a family member) have moved to the UK from another member state, are an EEA or Swiss national (or a refugee or stateless person resident in an EEA state) and are or were employed, self employed, studying or claiming certain social security benefits, you may be covered by more favourable EU social security rules, which include being enabled to use periods of residence, employment and national insurance contributions paid in another EEA country to satisfy requirements for UK benefits.
A8 – this refers to the eight countries marked * above.
A2 – This refers to Bulgaria and Romania.
Reciprocal social security agreements with some countries ( including Switzerland and all EEA countries except A8 and A2 countries, Greece and Liechtenstein – the reciprocal agreement applies if you are not covered by EU rules) may help you receive benefit. Non EEA countries covered by reciprocal agreements are Barbados, Bermuda, Canada, Isle of Man, Israel, Jamaica, Jersey and Guernsey, Mauritius, New Zealand, Philippines, Turkey, USA and former Yugoslavia. Agreements differ and not all benefits are covered. There are ‘association’ and ‘co-operation agreements with Algeria, Morocco, San Marino, Slovenia, Tunisia and Turkey.
2. Residence and presence tests
Entitlement to many benefits depends on satisfying residence and presence tests for the benefit.
Meaning of terms
Present – This means physically present in GB throughout the whole day. ( See Leaving the UK – Benefits and retirement pension for when you can be treated as present in GB while you are abroad.)
Resident – You are usually ‘resident’ in the country where you have your home for the time being.
Ordinarily resident – This term is not defined in regulations. You should be ‘ordinarily resident’ in the place where you normally live for the time being if there is a degree of continuity about your stay such that it can be described as settled.
Right to reside – This term does not have a single statutory definition. See below for how this test is applies.
Habitually resident – This term is not defined in regulations. See below how this test is applied.
For disability living allowance (DLA), attendance allowance (AA), carer’s allowance (CA), contributory employment and support allowance ‘in youth’ (CESA(Y)), incapacity benefit ‘in youth’ (IB(Y)) and severe disablement allowance (SDA) the general rules and exceptions are as follows.
The residence and presence test (General rule)
You must be present and ordinarily resident in GB, and have been present for not less than 26 weeks of the last 52 weeks. This is a continuing test. It applies to any day for which you are claiming benefit.
DLA and AA – If DLA is claimed for a baby under 6 months old, a 13-week presence test applies until the baby’s 1st birthday. If the child becomes entitled to DLA after reaching 6 months, the 26 week test applies.
The 26 or 13 week presence tests do not apply if you are accepted as terminally ill.
If these special provisions apply, the presence and ordinary residence tests must still be satisfied. CESA(Y), IB(Y) and SDA – Once you pass the residence and presence tests you do not need to satisfy them again while you are in the same period of limited capability for work/incapacity for work
Tax credits, child benefit and health in pregnancy grant.
For working tax credit and child tax credit (CTC) you (and your partner if you are making a joint claim) must be present and ordinarily resident in the UK and, for new CTC claims made on or after 1.5.04, have the right to reside in the UK (see below).
To be entitled to child benefit you and the child must be present in GB (or Northern Ireland if claiming there), be ordinarily resident in the UK and, for new claims made on or after 1.5.04, have a right to reside in the UK (see below).
To be entitled to health in pregnancy grant you must be present in GB (or Northern Ireland if claiming there) and ordinarily resident in, and with a right to reside in, the UK (see below)
Means tested benefits
For housing benefit (HB), council tax benefit (CTB),income support (IS) , income-related ESA, pension credit (PC) and income-based JSA, you must be ‘habitually resident’ in the Common Travel Area (CTA, which is in the UK, Channel Islands, Isle of Man or republic of Ireland) and is, for IS, income-related ESA, PC or income-based JSA, present in GB.
– If you used to live in GB or abroad with your partner who is now abroad, they will be treated as your partner (with their income and capital affecting your entitlement to benefit) unless you do not intend to resume living together or the absence is likely to exceed 52 weeks.
The habitual residence test
Unless you are exempt (see below), you have to satisfy the ‘habitual residence test’ (HRT), which includes having a right to reside (see below) in the CTA. Only the claimant is subject to the HRT. if you are one of a couple, the person most likely to satisfy ( or be exempt from) the test should be the claimant. Seek specialist advice if you are likely to be the subject to the test or need to appeal against a decision that you are not habitually resident. To ensure entitlement to benefits as soon as possible, submit further claims while you are waiting for your appeal to be heard, and appeal each negative decision. If you are not accepted as habitually resident for IS, income-related ESA, income-based JSA or PC, the HB/CTB office must make its own decision, not just follow the DWP decision.
You are exempt from the HRT if you:
- have refugee status, humanitarian protection, or exceptional leave to enter/remain; or
- left Monserrat after 1.11.95 because of a volcanic eruption; or
- arrived in the Uk from Zimbabwe after 27.2.09 ( and before 18.3.11) under a UK government assistance scheme; or
- are not a ‘person subject to immigration control’ (see 3 below) and have been deported, expelled or otherwise legally removed from another country; or
- are an EEA national (see 1 above and restrictions for A*/A” nationals below) classified asa ‘worker’ (you must be employed in the UK doing ‘genuine and effective’ work) or self employed – including if you have retained either status, because you are temporarily unable to work due to an illness or accident, or are involuntarily unemployed and signing on at Jobcentre Plus or in vocational training, or are voluntarily unemployed and in vocational training connected to your former work; or
- are a family member (ie a spouse, civil partner or dependent (grand) parent or (grand) child (who is either under 21 or dependent)) of someone in the group above; or
- Are an EEA national with a right to reside permanently in the UK under Article 17 of Directive 2004/38/EC (eg if you worked in the UK and then retired, or became permanently incapable of work, in certain circumstances), or living with a family member in this group; or
- are an A8 national required to register your employment and you are employed and either have registered or are within the first month of employment; or
- are an A2 national subject to authorisation working in accordance with the conditions or you accession worker authorization document.
If you are not exempt you must show you are habitually resident including that you have a right to reside. There is no definitive list of factors that determine habitual residence, but you must show a ‘settled intention’ to stay here. In most cases, you also need to be actually resident for a period of time, but you may be accepted as habitually resident from your first day of residence if you are:
- returning to the CTA and you were previously habitually resident here; or
- (or a family member is) a national of, and worked in, another EEA state (see 1 above)
The right to reside test
For new claims made on or after 1.5.04, you must have a right to reside for CTC, child benefit and (to satisfy the HRT) IS, income-related ESA, income-based JSA, PC, HB and CTB. However, this requirement does not apply to a new claim for IS, income-based JSA, PC, HB or CTB if it is part of a continuous period of entitlement to one or more of these five benefits that included 30.4.04
Certain groups have a ‘right to reside’. These include all those who are exempt from HRT (listed above), British and Irish citizens, and those with leave to enter/remain in the UK. The main groups of EEA nationals (in addition to those exempt from HRT) with the right to reside are those who:
- have ‘resided legally’ in the UK for five years; or
- are self-sufficient; or
- are enrolled as a student and are self-sufficient; or
- (for income-based JSA, child benefit or CTC only) are jobseeking.
(whether or not EEA national) of the groups above have a right to reside and in some circumstances can retain their right to reside if the EEA national dies,leaves the UK or, in the case of a spouse or civil partner, they get divorced or the civil partnership is dissolved. Others can have a right to reside, depending on their circumstances.
Most A8 national are subject to a requirement to register their employment (within one month of starting) under the Worker Registration Scheme and most A2 nationals can take employment only if they hold and work in accordance with an accession worker authorisation document. Limited categories are exempt from these requirements including those who have completed a year of registered authorised work. While subject to registration or authorisation, an A8/A2 national:
- has no right to reside as a jobseeker;
- cannot retain their worker status in the ways listed in the 5th HRT exempt group;
- is only defined as a’worker’ if their work is registered/authorised.
3. Immigration status
If you are defined as a ‘person subject to immigration control’, unless you come under one of the exemptions below, you will be excluded from possible entitlement to the following benefits;
- attendance allowance (AA) and disability living allowance (DLA);
- carer’s allowance;
- child benefit;
- child tax credit (CTC) and working tax credit (WTC);
- contributory employment and support allowance ‘in youth’ (CESA(Y));
- health in pregnancy grant;
- housing benefit (HB) and council tax benefit (CTB);
- income-based jobseeker’s allowance (JSA);
- income-related employment and support allowance (ESA);
- income support (IS);
- Incapacity Benefit ‘in youth’ (IB(Y));
- pension credit;
- severe disablement allowance (SDA);
- social fund
You are defined as a ‘person subject to immigration control’ if you are not an EEA national (see 1 above) and you;
- require leave to enter/remain in the UK, but do not have it; or
- have leave to enter/remain in the UK subject to a condition that you do not have recourse to public funds; or
- are a sponsored immigrant – ie you have been given leave to enter or remain as a result of a maintenance undertaking (a written undertaking given by someone else in pursuance of the immigration rules, to be responsible for your maintenance and accommodation).
Exemptions; who can still get benefit
You are not excluded from benefit entitlement if you are not defined as a person subject to immigration control. Examples include: people with refugee status, humanitarian protection, discretionary leave or indefinite leave to enter/remain (unless given as a result of a maintenance undertaking) and a family member of an EEA or Swiss national exercising their freedom of movement rights under EU law (or the Swiss agreement with the EU) who joins them in the UK. Some groups of people (listed below) can be entitled to benefit despite being defined as a person subject to immigration control.
Warning: All the benefits listed above are classed as ‘public funds’ except CESA(Y) and IB(Y). If your immigration status is subject to a ‘no recourse to public funds’ condition receiving one of these benefits (even if your partner is paid benefit on your behalf) may jeopardise your right to stay in the UK or undermine applications to the Home Office. However, the Home Office does not regard you as having ‘recourse to public funds’ if the benefit is paid because you fall into one of the exempt groups below.
You should get expert immigration advice before making a claim if you have concerns over ‘public fund’ or do not have leave to enter/remain, have overstayed your leave or are unsure about your immigration status, since information is exchanged between the benefit authorities and the Home Office.
Who can get means-tested benefits?
If you are defined as a person subject to immigration control you are not excluded from entitlement to IS, income-related ESA, income-based JSA, pension credit, HB or CTB if you are:
- a national of Croatia, Macedonia or Turkey and you are lawfully present in the UK; or
- a sponsored immigrant and have been resident in the UK for five years (beginning on the later date of either your entry to the UK or the signing of the maintenance undertaking); or
- a sponsored immigrant and less than five years have passed since you entered the UK (or since the maintenance undertaking was signed) and your sponsor has (or, if more than one, they have all) died; or
- on limited leave with the condition that you do not have recourse to ‘public funds’, and you have not yet had such recourse other than under this provision, and you are dependant on funds from abroad that are temporarily disrupted but which are reasonably expected to resume (maximum of 42 days payment per period of leave); or
- an asylum seeker and:
- you claimed asylum ‘on arrival’ (other than on re-entry) in the UK before 3.4.00; or
- you are a national of former Zaire (democratic Republic of Congo) or Sierra Leone and you submitted a claim for asylum within three months after the Home Secretary’s declaration that these countries were undergoing ‘significant upheaval’ made on 16.5.97 and 1.7.97 respectively; or
- ( except for income-based JSA) you or a member of your family who included you in their claim were entitled to IS, HB, CTB as an asylum seeker on 4.2.96. You will still be entitled if you claim again after a break
Entitlement will end on the date the decision on (or abandonment of) your asylum claim (or appeal if it was against a pre-5.2.96 decision) is recorded by the Home Office and notified to you.
If your partner is subject to immigration control
If you are entitled to IS, income based JSA, income related ESA or pension credit, you cannot be paid for a partner defined as a person subject to immigration control (unless, except for pension credit, they are within the exempt groups above).
Even if you are defined as a person subject to immigration control you are not excluded from entitlement to the social fund if you fall into any of the exempt categories listed above. However, you must meet other conditions of entitlement, including ( with the exception of crisis loans and winter fuel payments) being in receipt of a qualifying benefit.
Who can get tax credits?
Even if you are defined as a person subject to immigration control you are not excluded from tax credits if:
- you are a sponsored immigrant and either more than five years have passed since you entered the UK (or since the maintenance undertaking was signed) or your sponsor has (or, if more than one, they have all) died; or
- you are on limited leave with the condition that you do not have recourse to public funds and you have not had such recourse other than under this provision, and you are temporarily without funds due to funds from abroad being disrupted, but which are reasonably expected to resume (maximum of 42 days payment); or
- (CTC only) you are a national of Algeria, Morocco, San Marino, Tunisia or Turkey and are lawfully working ( or have lawfully worked) in the UK; or
- (WTC only) you are a national of Croatia, Macedonia or Turkey and you are lawfully present in the UK; or
- (CTC only) your CTC award begins on or after the 6.4.04 and immediately before it began you were entitled to IS or income-based JSA for a child because you fell into either the above group or one of the three groups of asylum seekers listed as not excluded from IS or income based JSA (above).
If your partner is subject to immigration control – and you are not, or you fall within one of the five exempt groups above, you joint claim will be treated as if your partner were not subject to immigration control except that the couple element of WTC is not paid unless you or your partner have a child or your partner falls within the fourth exempt group above.
Who can get disability benefits and child benefit?
Even if you are defined as a person subject to immigration control you are not excluded from AA, DLA, carer’s allowance, child benefit, health in pregnancy grant, CESA(Y), IB(Y) and SDA if:
- you are the family member of an EEA (including the UK) national; or
- either you, or a member of your family who you are living with, are a national of Algeria, Morocco, San Marino, Tunisia or Turkey and are lawfully working ( or have lawfully worked) in GB; or
- you are a sponsored immigrant; or
- ( for DLA, AA, and child benefit only) you are covered by a reciprocal agreement (see 1 above); or
- you were in receipt of the benefit immediately before 5.2.96 (or 7.10.96 for child benefit). your entitlement will end if:
- your benefit is revised or superseded. Claiming child benefit for an additional child does not give rise to a revision or supersession of your existing entitlement; or
- you break your claim, or your fixed period award comes to an end; or
- your claim for asylum (if any) is recorded as having been decided or abandoned.
If you get a positive decision on your asylum claim
If you are granted refugee status you may be able to claim backdated tax credits and child benefit. You must claim within three months of receiving the letter, notifying you of your refugee status. The claim will be backdated to the date your asylum application (or, for tax credits, 6.4.03 if this is later). However, the amount paid will be net of any subsistence payments of asylum support you have received.
If you (or someone you are dependant of) are aged 18 or over and have been granted refugee status or humanitarian protection since 11.6.07, you can apply for an ‘integration loan’ from the UK Border Agency. Further details and application forms are available on their website (https://www.bia.homeoffice.gov.uk).
Once you are granted refugee status, humanitarian protection or discretionary leave, you are no longer subject to immigration control while you have that leave, and you can claim all benefits.
4. Other forms of support
Asylum support – If you ( or someone you are dependent of) are aged 18 or over, have an outstanding asylum claim or appeal and are destitute, you may be able to get asylum support ( accommodation and/or subsistence payments). If your asylum claim and appeal have been refused, you may be eligible for ‘section 4’ support. Both are provided by the UK Border Agency. Seek advice for further details (box below).
Help from social services
You may be eligible for assistance from your local social services department under one or more legal provisions. If you have needs that are not solely a consequence of destitution or it’s physical effects (eg you have needs due to your age or disability) you may be entitled to accommodation and other assistance under the National Assistance Act 1948. If you are an unaccompanied child under 18 or you have a dependent child you may be able to get assistance under the Children Act 1989. Remember that information is exchanged between social services and the Home Office. If you are refused assistance from your local authority, seek independent advice.
For information on benefits for people entering and leaving the UK, see Benefits for Migrants Handbook
The DWP and HMRC produce leaflets (including some in languages other than English) for each country covered by a reciprocal agreement with the UK, as well as general leaflets. Leaflets are available from the:
International Pension Centre (IPC) (contact details top of page)