Absence from UK in past 2 years

Maybe as that’s maximum period out of country you can have without losing pre-settled status?

I have always assumed it was basically an arbitrary cut off. If you have been in the UK for the past two years, its not going to be realistically in issue that you are habitually resident so the DWP is content to skip the HRT. It could just as well be 18 months or 3 years.

I have spoken to my Expert Advice Team colleagues and their opinion was:

“There used to be a gateway condition that a UC claim could not be made unless a claimant was British & had continuously lived in the UK for 2 years with no absences longer than 4 weeks. See Sch.5 para 1(c) of https://www.legislation.gov.uk/uksi/2013/983/pdfs/uksi_20130983_310815_en.pdf

But this Schedule was revoked in April 2018 and that particular provision may have been revoked earlier - see Art 3(2)(k) of https://www.legislation.gov.uk/uksi/2018/138/made

So unless this is just a hangover from the old days, I can’t see why it’s there.
If clients are getting HRT refusals and they think it’s because of their answer to this question, they should certainly challenge using the information set out in CPAG Ch 69 on appreciable period, settled intention to reside, etc.”

Trouble is, clients DO get caught up by this and fail HRT- especially returning British Citizens. Quality of HRT decisions at DWP, at the basic DM level, has a “room for improvement”, to phrase it delicately. So clients are not asked (and unless advised specifically about it) do not refer to intention to settle etc.

I have reported it to CPAG’s EWS but also wanted to ask Daphne to take it to Stakeholders. Why is this “2 past years” question still included in the UC application?

I’ve sent a question up Jo :)

My experience with this is as Elliot suggests above: if the claimant says they haven’t been abroad in the past two years, they don’t bother with a HRT. If they say that they have been abroad, then a HRT is carried out, and the decision is made based on the information/evidence provided at the HRT interview, and this section of the claim form has no bearing on the decision made.

Trouble is, clients DO get caught up by this and fail HRT- especially returning British Citizens. Quality of HRT decisions at DWP, at the basic DM level, has a “room for improvement”, to phrase it delicately. So clients are not asked (and unless advised specifically about it) do not refer to intention to settle etc.

This is certainly an issue, but as above, I don’t think the issue is the question asked in the original claim form, but the HRT subsequently carried out.

This is the reply via stakeholders - doesn’t actually address why they use two years and why not questions related to actual habitual residence - i’ve emailed back for clarification -

All claimants, regardless of nationality, must demonstrate that they are both legally and habitually resident in the UK and common travel area (CTA - the Channels Islands, Isle of Man or the Republic of Ireland) in order to access UC.

DWP assesses this through the Habitual Residence Test (HRT), which has two elements: a legal right to reside test and an objective assessment of factual evidence of habitual residence. The test is also applied to British nationals who return here after an absence abroad of more than one month.

Jo_Smith - 20 July 2021 03:30 PM

Does anyone know why clients are being asked about absence from UK in the “past 2 years”? See screenshot.

I know it’s about HRT but where does specifically the concept of last “2 years” comes from?

I can only think this is specific to claimants with ILR, ILR will lapse automatically by operation of law following a consecutive absence of 2 years from the UK.

Can’t really see why else this would be asked as a 2 year absence, in itself, does not necessarily mean the HRT needs to be carried out unless of course you have ILR and it lapses. Well,  you have the HRT as well as other issues to worry about.

Have to add, it is in a variety of other application forms for welfare assistance though.