Habitual resident test / JSA

I would kindly ask you to assist me with my EC case as I haven’t dealt with the habitual residents test for a long time. What is the shortest time part/full time that DWP will consider sufficient for someone to pass the test. What is the latest case law? Many thanks in advance

Dina

I presume your client is a workseeker and needs to satisfy HRT for claiming IB JSA?

If so the test is that set out in the old House Of Lords decision of Nessa, i.e settled intention and appreciable period of actual residence.

There is an old decision of Commissioner Jacobs, as he was then, that appreciable period would normally be 1 to 3 months (cant remember ref - sorry!) but in particular cases it might be shorter or indeed longer.

Hi Dina

An EEA national coming or returning to Britain from within the EEA might be able to establish habitual residence from day one.  EEA nationals and non-EEA nationals, coming to the UK from outside the EEA, are more likely to have had to have been here for an appreciable period of time, usually a period of between one and three months, although there are no hard and fast rules on this.

A good starting point for a brief discussion on the HRT for the appreciable period of time concept is the House of Lords decision in Nessa.  Building on Nessa, see CIS/4474/2003 and R(IS) 7/06.
 
The following are extracts from R(IS)7/06:

“In In re J (A Minor) (Abduction: Custody Rights) <1990> 2 A.C. 562, Lord Brandon used the expression “an appreciable period of time”. Having been referred to that case, Mr Commissioner Howell QC made some suggestions in R(IS) 6/96 as to what might amount to an appreciable period of time”.

“In Nessa, the House of Lords took a very similar approach. Lord Slynn of Hadley, with whom the other members of the House agreed, said –

‘(A person who has never been to the United Kingdon before) must 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.

I do not consider that when he spoke of residence for an appreciable period, Lord Brandon meant more than this. It is a question of fact to be decided on the date where the determination has to be made on the circumstances of each case whether and when that habitual residence had been established.

“The requisite period is not a fixed period. It may be longer where there are doubts. It may be short (as the House accepted in In re S (A Minor) (Custody: Habitual Residence) (1998) AC 750, my speech at p. 763A, and Re F (A Minor) (Child Abduction) (1994) F.L.R. 548, 555, where Butler-Sloss LJ said: ‘A month can be … an appreciable period of time.’”)

“I am content to accept that, where a claimant is likely to remain in the United Kingdom permanently or for a substantial period of time, the conventional period that must have elapsed between his arrival and his establishing habitual residence is between one month and three months. However, those are not rigid limits. In an exceptional case, a person with a right of abode in the United Kingdom who, although not falling within the scope of regulation 21(3)(d), has been forced to flee another country and is nonetheless able to show a settled intention to remain in the United Kingdom might be accepted as habitually resident after less than a month of residence. Perhaps less exceptionally, a person with no ties to the United Kingdom and making no effort to become established here despite a vague intention to remain might be found not to be habitually resident in the United Kingdom until considerably longer than three months had elapsed”.

Regards
Paul

Yes it does bring NESSA back to my memory. Thank you so much you are so helpful!

Have a lovely day