old fat biker bloke

Hello boys & girls - Just a few lines to say we all got back to good old Essex safe and sound. Kids are in schools & we were lucky enough to get signed up with both dentists & Dr's!!!

One ongoing problem however is the jolly old folk at the DWP who are seemingly making life as hard as they can. Sent off the Habitual Resident form 7 weeks ago & was told it would take "10 days" to get sorted!!! They say they posted a letter 10 days ago (never received it!!) as there was some question as to whether I'd "been working abroad" - No poop Einstein - sigh...... :curse::curse:

If you've been away more than 2 years I'd be prepared for similar problems!!! If you're getting close to being away 24 months & are planning to return get your arse back ASAP!!!!

Anyway, I start my new job in 6 weeks so this will all fade into and unhappy but educational memory!!!

Loving it back home nonetheless - God I missed Tesco!!!!!!!!!!!!!!!!!

johnh009

Good job you mentioned it, what is the purpose of the Habitual Residency Form/Test? I have been away for 28 years so it looks like I may have to face the wrath of the beaurocrats.

old fat biker bloke

Hello John - Thanks for the reply!! Have a look at the following link, it kinda sums it up!!

http://www.adviceguide.org.uk/index/...kers_allowance

There are a few other threads on here discussing this but to the best of my knowledge youy need to prove BEYOND DOUBT you have completely cut ties with where you were living - Sold property if you had it, closed bank accounts etc.

In my case I would have thought shipping all my belongings home was proof enough!!!

All the best on your impending return!!!

livinginreality

Hey welcome home!!!!Sounds like you're settling in ok then?Nice bike too in your avatar,a triumph is'nt it?

bromleygirl

Actually in the case of HRT it's not a case of proving that you have cut ties with where you have been living but proving that you intend to make the UK your home again i.e. registering with doctors, dentists, schools, electoral role etc however UKC's should be considered resident from day 1 as per the swaddling decision which you should quote to the DWP. There is no need for any of us to have to sit the HRT.

old fat biker bloke

Hi Bromleygirl - I'm learning about this all the time; can you expand on 'the swaddling decision' for me please & thank you.

old fat biker bloke

Thanks for the compliment livinginreality - She's a 1950 Vincent Comet 500cc single, the second love of my life!! :O)

sans

Hey!!! Welcome home Its mad ere in it... lols sorta makes you feel alive again

dunroving

Basically, from my understanding, it's a case that ultimately ended up with the decision that a returning UK citizen is immediately recognised as a permanent resident of the country, for the purposes of rights to benefits, etc.

You can run an Advanced Search (see "Search" button at top of page) for Swaddling, specifying the MBTTUK forum, and you'll find more information than you would ever need (it comes up on here regularly), but here are a couple of example threads:

http://britishexpats.com/forum/showt...ight=swaddling

http://britishexpats.com/forum/showt...ight=swaddling

old fat biker bloke

Woo Hoo!!!! 'ello Sans, how's that heron??!!??

sans

I kicked his aris......Gotta pond full of fish Yeah!!! I have another problem now they keep breeding and i need a bigger hole

old fat biker bloke

LOL!!! Less lawn to mow!!!!

old fat biker bloke

With all credit to Dingbat for posting the link a while back I thought I'd C&P the following. Thanks to all for comments/links so far!!!

Habitual residence now
Last year, there were two major decisions on the habitual residence test. These were the European Court of Justice's decision in Swaddling v Adjudication Officer (Case C-90/97) [1999] All ER (EC) 217 (Bulletin 149, p9), given on 25 February 1999; and the House of Lords decision in Nessa v AO [1999] 4 All ER 677 (Bulletin 153, p13), given on 21 October 1999. David Thomas considers where these two cases and subsequent commissioner decisions, have left the test. The task is not straightforward because some of the reasoning in Swaddling and Nessa is incomplete.

The habitual residence test
Swaddling
The ECJ decision
Nessa
The House of Lords decision
After Swaddling and Nessa
CAS guidance
Conclusion

The habitual residence test
The test now applies to income support (IS), income-based jobseeker's allowance (IB-JSA), housing benefit (HB) and council tax benefit (CTB). A claimant for these benefits has to show that s/he is habitually resident in the 'common travel area' (CTA) (essentially, the British Isles), in addition to satisfying the other conditions of entitlement.

There are exceptions. For example, a claimant who is a 'worker' for the purpose of certain EC Regulations or Directives does not have to satisfy the test (see, eg, the definition of 'person from abroad' in reg 21(3) Income Support (General) Regulations 1987). This article is not concerned with these exceptions.

There had already been considerable caselaw on the test. At commissioner level, the most important decision was CIS/1067/1995 (Bulletin 129, p20), where Commissioner Howell said that, in order to satisfy the test, a claimant must: (a) have a settled purpose to reside here; and (b) have resided here for an 'appreciable period of time'. This phrase came from a House of Lords child abduction case, Re J (a minor) (abduction: custody rights) [1990] 2 AC 562. Commissioner Mesher adopted the same approach in Nessa (CIS/2326/1995: Bulletin 133, p17), and indeed in Swaddling, which was initially heard with Nessa.

Both the ECJ in Swaddling and the House of Lords in Nessa were concerned with the question whether a claimant did indeed have to live here for a period before s/he could be said to be 'habitually resident' here. However, the claimants' backgrounds were rather different, which explains why their cases followed different paths.

Swaddling
Robin Swaddling is British and was brought up in this country. When he was 23, he went to live and work in France for some 14 years. He returned to live in the UK in December 1994 when he lost his job in France and immediately claimed IS. It was common ground that he intended to make the UK his home for the foreseeable future. Commissioner Mesher ruled that, under domestic law, he was not entitled to IS until he had been back here for an appreciable period of time, which in his case was eight weeks.

However, he recognised that the requirement of an appreciable period might breach Article 48 (now Article 39) of the Treaty of Rome, which guarantees free movement for EU nationals to work in other Member States on a non-discriminatory basis. There is a considerable body of ECJ caselaw to the effect that domestic rules which have the effect of deterring someone from exercising this right are unlawful (although the cases directly on social security are confusing and contradictory). The appreciable period rule might have just that effect. The Commissioner therefore referred the case to the ECJ.

The ECJ decision
In fact, the ECJ decided not to approach the case under Article 48, but instead under EC Regulation 1408/71. This is the instrument, made under Article 51 (now 42), which co-ordinates social security provisions in the various Member States insofar as they relate to migrant workers and their families. To come within the scope of the Regulation, a person must be a 'worker', which in essence means that s/he must have paid national insurance contributions in at least one Member State, and be a national of a Member State (or a refugee). Under Article 3, people who are covered must not face benefit discrimination on nationality grounds. Article 4 sets out the types of benefit which are covered. The principal ones are those relating to the traditional social security risks such as incapacity and old age. Under Article 10, a claimant in receipt of these benefits can 'export' them with her/him when s/he moves permanently to another Member State.

Claimants of other benefits can also receive limited protection, however, if these are recognised as 'special non-contributory benefits' under Article 4(2a) and Annex IIa. IS and IB-JSA are explicitly so recognised. In relation to these benefits, Article 10a of EC Regulation 1408/71 begins:
1. Notwithstanding the provisions of Article 10 and Title III, persons to whom this Regulation applies shall be granted the special non-contributory cash benefits referred to in Article 4(2a) exclusively in the territory of the Member State in which they reside, in accordance with the legislation of that State, provided such benefits are listed in Annex IIa. Such benefits shall be granted by and at the expense of the institution of the place of residence.

So, these benefits cannot be 'exported' under Regulation 1408/71, but the non-discrimination principle contained in Article 3 does apply to them. The crucial question for the ECJ was what was meant by the phrase 'Member State in which they reside' in paragraph 1. Article 1(h) defines 'residence' as 'habitual residence'. Although this does not mean the same as the British 'habitual residence', as two commissioners have recently made clear, what the ECJ said is nevertheless directly relevant to the British concept because that was the subject of the reference to it.

In para 29 of its decision, the ECJ said that '[habitual] residence' in Regulation 1408/71:
… 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 the 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 (see, mutatis mutandis, concerning Article 72(1)(b)(ii) of Regulation 1408/71, Case 76/76 Di Paolo [1977] ECR 315 …

However, it then went on to say (in para 30):
For the purposes of that assessment … 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 1408/71 ...
There is an apparent contradiction between this comment and the reference in para 29 to 'the length and continuity of residence' as being a factor in deciding the (habitual) residence question. In CIS/15484/1996, decided after Swaddling but before Nessa, Commissioner Mesher sought to resolve it by interpreting 'intrinsic' as 'essential'. Length of residence in the Member State in question was a relevant factor, but it was not an essential ingredient in the European concept of habitual residence that a person had resided there for any period before being entitled to the benefit in question. As a result, residence in the UK (or, more accurately, the CTA) was not an essential ingredient in the UK concept of habitual residence for IS (or IB-JSA) where the claimant fell within Regulation 1408/71.

In another post-Swaddling (and post-Nessa decision), CIS/3559/1997, Commissioner Mesher held that a claimant, a French national who was able to rely on Article 10a, was nevertheless not habitually resident here immediately on her return. The crucial factor was that, unlike Mr Swaddling, she was not returning to be with or close to any family members. The Commissioner was not troubled by the fact that she had not been working in the EU during her absence. This decision shows that the mere fact that a claimant can rely on Article 10a does not mean that s/he will necessarily satisfy the UK habitual residence test from day one.

In any event, it is important to note that, broadly speaking, Regulation 1408/71, and therefore the ECJ's Judgment in Swaddling, only applies where: first, the claimant is a national of a Member State (or a refugee); second, s/he is a 'worker'; third, the benefit in question is covered; and fourth, two or more Member States feature in the factual background. Mr Swaddling was British and had lived and worked in both the UK and France. In CIS/15484/1996, the claimant was an Italian brought up in Italy, had lived and worked in the UK and had also lived in Spain. In CIS/3559/1997, the claimant was French and had previously worked in the UK. Note also that the Regulation does not cover HB and CTB.

Nessa
Joybun Nessa came here in August 1994. She is Bangledeshi. She had never lived or worked in another Member State. There was, therefore, no EC law dimension to her case and the ECJ's Judgment in Swaddling was not directly relevant to her.

Mrs Nessa had the right of abode in this country. She intended to live here permanently. Her three adult children intended to join her (her husband, who had lived here between 1962 and 1975, had since died).

She claimed IS on her arrival but the AO decided that she was not habitually resident here. Again, the crucial issue was whether she had to live here for a period of time before she could satisfy the habitual residence test.

The House of Lords decision
The House of Lords said for Mrs Nessa, living here for a period of time was necessary. The only substantive judgment was given by Lord Slynn. A claimant who was here for the first time must, he said, 'show residence in fact for a period which shows that the residence has become "habitual" and, as I see it, will or is likely to continue to be habitual'. He quoted with approval Lord Brandon's Judgment in Re J where he had said that, although it was possible to cease to be habitually resident in a country in a single day, one could not immediately acquire a new habitual residence. Although there was House of Lords and Court of Appeal caselaw indicating that 'ordinary residence' could be acquired on day one, this phrase did not equate precisely to 'habitual residence'.

Lord Slynn recognised that there could be special cases where the claimant was not coming here for the first time but was resuming a habitual residence previously enjoyed. In those cases, the test could be satisfied immediately. Swaddling was, he said, such a case.

In the normal case where a period of residence was essential, its length would be a question of fact in each case. The period could be short – in Re AF (a minor) (child abduction) [1992] 1 FCR 269, the Court of Appeal had said that one month could suffice. Where there were doubts, an extended period might be required. Among the factors pointing to habitual residence in this country were the bringing of one's possessions, having a right of abode, seeking to bring one's family and the existence of durable ties with the UK.

After Swaddling and Nessa
The only basis on which an attempt can be made to reconcile the two decisions is by distinguishing claimants who have previously enjoyed habitual residence here from those coming here for the first time. A claimant in the former category may resume such residence immediately on return, irrespective of whether s/he has been working in another EU country. Robin Swaddling had been habitually resident here before going to France, and the claimants in CIS/1304/1997 and CJSA/5394/1998 – decided after Nessa – had left the UK to live for a period in Pakistan and Malaysia respectively. Commissioner Jacobs held that, on the facts, both resumed their previous habitual residence here immediately on their return.

However, the distinction between the two categories is not intellectually sound. Although the ECJ in Swaddling tied the ratio of its decision closely to the facts, there is no reason in strict logic why a claimant relying on the decision needs to have lived here in order to claim IS immediately s/he comes here (assuming s/he can otherwise rely on Article 10a of Regulation 1408/71).

Lord Slynn's principal reason for requiring a period of residence before it could be said to be 'habitual' seems to be that a habit takes time to develop. But that must equally be true where a person returns to the UK where s/he previously was habitually resident: only time will tell whether s/he has indeed again resumed an old habit or is simply back here on a more transient basis, perhaps still retaining the habitual residence established in another country.

In fact, a habit must have a starting point and this must lie at the beginning of the course of conduct in question. It may not be apparent to an observer that a habit has started but that is a different point. Of course, it may be more difficult for a new arrival to establish that s/he intends to settle here. The onus of proof lies on the claimant. However, the difficulty should not mean that, in every case without an EU dimension, s/he should need to show a history of residence to back up assertion of her/his intention.

There are now two concepts of habitual residence: (a) the purely domestic; and (b) the EC law concept which is distinct from it but which nevertheless is sometimes relevant to its application. In CIS/3559/1997, Commissioner Mesher agreed with Commissioner Walker's observation in CJSA/4026/1997 that it would be odd if the test was to be interpreted differently depending on whether or not a claimant returning from abroad came within Article 10a of Regulation 1408/71, but said that that was nevertheless the position. In other words, the law remains in a state of some confusion and the House of Lords, far from sorting it out, has probably made it worse. Its decision in Nessa also means that a claimant may not have a habitual residence anywhere, a state of affairs the ECJ has sought to avoid in its jurisprudence.

One mitigating feature of the decision, and in particular Lord Slynn's endorsement of the one-month period approved in Re AF, is that claimants can now argue that the qualifying periods should be shorter than in the past. Indeed, in CIS/11988/1996, decided after Nessa, Commissioner Jacobs accepted the submissions of the parties that one month was the appropriate period in the particular circumstances. There is, in fact, no express reference to an 'appreciable period' in Lord Slynn's formulation of the test (although it does reappear in some of the subsequent commissioner decisions).

CAS guidance
A complicating factor is the effective disapproval by Commissioner Mesher in CIS/15484/1996 of the guidance issued by CAS following Swaddling (AM(AOG) 109). This guidance was summarised in Bulletin 150, p14. It says that an IS or IB-JSA claimant who was previously habitually resident in the CTA, who moved to another country (not simply an EU Member State, it seems) and who then came back here to resume the previous residence was immediately habitually resident here on her/his return. In deciding the habitual residence question, AOs were advised to take into account the length and continuity of the previous residence and 'whether the claimant has sufficient links with the previous residence to be regarded as picking up the pieces of their old life …'

In his submission in CIS/15484/1996 on the effect of the ECJ's Judgment in Swaddling, the AO adopted this guidance virtually verbatim. The Commissioner said this was not a proper reading of the Judgment. There is no doubt that the guidance did indeed go beyond what the court had said. However, Lord Slynn's strong indication that a claimant who was resuming a habitual residence here could indeed be habitually resident here immediately on her/his return, and the subsequent endorsement of that in CIS/1304/1997 and CJSA/5394/1998, means that the guidance is indeed apposite once more.

Note, however, that in that case Commissioner Jacobs said that the mere fact that someone had enjoyed habitual residence here before did not mean that s/he would necessarily resume such residence immediately s/he came back. It would depend on the circumstances. For example, it would assist if s/he had maintained ties and contacts with the UK in the intervening period. In CIS/3559/1997, Commissioner Mesher agreed that previous habitual residence here was not decisive. Of course, if a claimant never lost her/his habitual residence in this country during a period abroad, there is no need to re-establish it (see CIS/1067/1995).

Conclusion
For claimants who cannot rely on EC law and who have not previously been habitually resident here, it is clear following the House of Lords decision in Nessa that they must reside here for at least a period before they can satisfy the habitual residence test. That period can be very short.

Where claimants have lived here before, they may well be able to satisfy the test immediately on their return. This is irrespective of whether they can rely on Article 10a of Regulation 1408/71, and irrespective of their nationality. However, the criteria for determining whether they are habitually resident immediately differs to some extent depending on whether they fall within that Regulation. Although the cases discussed above have reduced the impact of the habitual residence test to some degree, it remains harsh. It is also inherently uncertain and therefore liable to be applied in a capricious, even racially discriminatory, manner.

The difficulties facing IS and IB-JSA claimants are now exacerbated by the fact that, under s12(8)(b) Social Security Act 1998, tribunals are only allowed to consider whether a decision was correct when it was made. They can no longer say that a decision that a claimant was not habitually resident at the time of claim was correct but that s/he has become habitually resident in the meantime. Claimants should continue to appeal adverse decisions but pending the hearing should also make frequent new claims or applications for revision and/or supersession. In that way, they should get the benefit in question as soon as they establish habitual residence.

In policy terms, a claimant who has the right to live in the UK and who intends to make her/his home here for the time being should, surely, be entitled to subsistence benefits. Need should be the criterion, not uncertain qualifying periods. Benefits should not be used as an instrument of immigration control. Unfortunately, the House of Lords in Nessa missed the opportunity of putting the law on a fairer and more certain footing.

David Thomas is a solicitor and consultant to CPAG.
Welfare Rights Bulletin 155, April 2000

Tr1boy

I hope my question isn't too basic, but I'm confused about the HRT and what it may mean to me.

When I arrive I won't be claiming any benefits as (fortunately) we have substantial savings. I'm already registered with my doctor (in fact I was never unregistered which was a surprise when I went back home at Xmas and needed to see the doc). My wife who will be on a ILR or spouse visa (could go either way due to dates) is already registered at the docs from when we were living there in 06.

We both have UK bank accts.

We have no kids and aren't having any and will be paying full tax etc etc. Is HRT only related to benefits/child support/housing etc?

To all intents and purposes we will be independent of 'the system' (except for paying into it ).

livinginreality

OH just told me Top Gear 4 weeks ago featured a vinnie (Hammond was riding it)as they were going back to 1949!Maybe you can iplayer it?