while discussing my first r2r hearings, due up next month, the man upstairs came up with an interesting argument, which he would have me believe dates back to early Habitual Residence case law.

reg 21 (3) a-d provide an exhaustive list of those poeple who "shall not be treated as not habitually resident", (here lies the only mention of Hab Res in the IS regs), and also mirror the conditions laid out in EEC law where someone might actually be granted a right to reside, apart from the person who is economically inactive and doesn't present an "unreasonable burden".

I'm told that this concept of being treated as Hab Res was separated from the actual concept of hab res in the early days of the HRT, when I was still watching Buck Rogers after school. That being that someone who came into the country under 21(3) a-d were immediate entitled, whereas those who didn't has to sit out the appreciable period and the such like.

So... reg 3g states that one cannot be treated as Hab Res if they haven't got a roight to reside, but this does not preclude them from actually being Hab Res should the usual conditions be met.

This would mean that the r2r test has a neutral effect, and is being mistakenly applied, as those people who cannot be "treated as" Hab Res can still become actually Hab Res, and all the conditions where the r2r test might apply are already set out in a-d.

So it might be arguable that in cases as have been discussed here the r2r test doesn't actually apply.

any thoughts would be apreciated!

Interesting idea.

The actual wording of Reg 21 that exempts workers, etc from the hab res rule is "no claimant shall be treated as not habitually resident" if they are a worker and so on. Since there are no provisions for treating people as not hab res when they are actually hab res, this can only mean that workers are treated as hab res even if they are not actually hab res. (Does that make sense?)

Therefore since para 3G says "no person shall be treated as hab res" unless they have RTR, workers can only be TREATED as hab res if they have the right to reside.

The problem it seems to me is that people who fall within Reg 21(a-d) will always have the right to reside, indeed to a large extent the DWP would argue that those in Reg 21 (a-d) are the only EU nationals with the right to reside. Therefore the only people who could potentially lose benefit under 3G would all meet the right to reside condition and be unaffected. If this interpretation is accepted it effectively makes 3G redundant. I also think that the intention of 3G is to remove benefit from "economically inactive" EU nationals.

Having said that, the wording of 3G is clear. It does not say "people without the right to reside are to be treated as not hab res", it clearly says "people without the right to reside cannot be treated as hab res", which is different.

I think it's worth running at tribunal. None of my appeals have even had papers produced yet, but when they get listed I'll certainly try it.

i've done some homework since the original post went up, and if you look at Di Paulo, which is referenced in Bonner, and is appended at R(U) 8/88 it talks about habitually residing somewhere, which to my mind gives this some weight. The test of habitual residence seems to stem from the act of habitually residing, and not a subjective set of circumstances which arise in given circumstances such as having been in a state for an appreciable period.


So it falls back to if you can actually habitually reside somewhere, then you can subjectively be treated as such, but this is superseded when the actual circumstances come to pass.