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This section provides guidance for Decision-Makers about the international aspects
of UC. In particular it deals with
1. The exclusion from UC of persons subject to immigration control
2. The presence condition
3. Absences from GB

C1002 Overview of the Rules

With some exceptions people (called "persons subject to immigration control"
(PSICs)) who require leave to enter the UK but do not have it (or who have certain
types of conditional leave) are excluded from UC by the Immigration Act (1). Everyone
else has to satisfy the basic condition that they be "in GB". The law allows people to
be treated or not treated as in GB. The end result is that
1. people with certain rights to reside only have to be present in GB
2. everyone else has to have a right to reside and to be habitually resident in the
Common Travel Area (the UK, the Channel Islands, the Isle of Man and the
Republic of Ireland) as well as being present in GB, but
3. certain rights of EEA nationals to reside in the UK do not count
Finally, certain absences from GB are disregarded.
1 I &A Act 99
Note: this is just a simplified outline of the rules, DMs will need to read and apply the
detailed guidance below
Definitions

C1003 Meaning of EEA National

"EEA national" is defined in the Imm (EEA) Regs as a national of an EEA State who
is not also a British Citizen (1).
1 Imm (EEA) Regs, reg 2(1)

C1004 Meaning of EEA State

An "EEA State" means (1)
1. an EU Member State (other than the UK)
2. Norway, Iceland or Liechtenstein and
3. Switzerland
Note: In this Chapter therefore references to an "EEA national" include Swiss
nationals.
1 Imm (EEA) Regs, reg 2(1)

C1005 EU - Member States

The Member States of the European Union are
1. Austria (joined the EU on 1.1.95)
2. Belgium
3. Bulgaria (joined the EU on 1.1.07)
4. Croatia (joined the EU on 1.7.13)
5. Cyprus (joined the EU on 1.5.04)
6. Czech Republic (joined the EU on 1.5.04)
7. Denmark (excluding the Faroe Islands and Greenland)
8. Estonia (joined the EU on 1.5.04)
9. Finland (including the Aaland Islands) (joined the EU on 1.1.95)
10. France (including Corsica, Guadeloupe, Martinique, Mayotte, Reunion, Saint
Barthelemy and Saint Martin and French Guiana, but excluding Monaco)
11. Germany
12. Greece
13. Hungary (joined the EU from 1.5.04)
14. Ireland
15. Italy (excluding the Vatican City and San Marino)
16. Latvia (joined EU on 1.5.04)
17. Lithuania (joined EU on 1.5.04)
18. Luxembourg
19. Malta (joined the EU on 1.5.04)
20. Netherlands (excluding, for the purposes of this Chapter, the Dutch Antilles)
21. Poland (joined EU on 1.5.04)
22. Portugal (including Madeira and the Azores)
23. Romania (joined the EU on 1.1.07)
24. Slovakia (joined the EU on 1.5.04)
25. Slovenia (joined the EU on 1.5.04)
26.
Spain (including the Balearic Islands, the Canary Islands and the Spanish
enclaves of Ceuta and Melilla)
27. Sweden (joined the EU on 1.1.95)
28. United Kingdom (including Gibraltar, but excluding, for the purposes of this
Chapter, the Isle of Man and the Channel Islands).

[C1006-C1009]

C1010 Persons Subject to Immigration control « C1050

Unless one of the exemptions below applies, a Person Subject to Immigration
Control (PSIC) is not entitled to Universal Credit (1).
1 I & A Act 99, s 115(1)

C1011 Meaning of PSIC

A PSIC is (1) a person who is not an EEA national and who
1. requires leave to enter or remain in the UK but does not have it; or
2. has leave to enter or remain in the UK subject to the condition that they do not
have recourse to public funds; or
3. has leave to enter or remain in the UK given as a result of a maintenance
undertaking; or
1 I & A Act 99, s 115(9)

C1012 Meaning of "maintenance undertaking"

A "maintenance undertaking" means (1) a written undertaking under the immigration
rules made by one person to be responsible for the claimant's maintenance and
accommodation.
1 I & A Act 99, s 115(10)

[C1013-C1019]

C1020 Exemptions

For the purposes of UC, the following people are exempt (1) from the exclusion of
PSICs
1. Persons
who (2)
1.1 have been given leave to enter or remain in the UK upon an
undertaking by another person or persons to be responsible for their
maintenance and accommodation and
1.2 have been resident in the UK for a period of less than 5 years beginning
with the later of the date of entry or the date of the undertaking and
1.3 the sponsor (or all the sponsors if there is more than one) has died.
2. Persons who (3)
2.1 have been given leave to enter or remain in, the UK upon an
undertaking by another person or persons to be responsible for their
maintenance and accommodation and
2.2 have been resident in the UK for a period of at least 5 years beginning
with the later of the day of entry or the date of the undertaking
3. Persons who are (4)
3.1 nationals of a state which has ratified the European Convention on
Social and Medical Assistance (ECSMA) done in Paris on 11.12.1953
or
3.2 nationals of a state which has ratified the Council of Europe Social
Charter (CESC) signed in Turin on 18.10.1961
provided they are lawfully present in the UK.
1 SS (I&A) Cql Amdts Regs, reg 2(1A), 2 Sch 1, Part I, para 23; 3 Sch 1, Part I, para 3;
4 Sch 1, Part I, para 4

C1021 The European Convention on Social and Medical Assistance

All the EU states, plus Iceland, Norway and Turkey have ratified the ECSMA.

C1022 The Council of Europe Social Charter

All the EU states plus Iceland, Norway, Croatia, Macedonia and Turkey have ratified
the CESC.
Note 2:
Croatia acceded to the EU on 1.7.13. From that date Croatian nationals
are EU nationals and cannot be persons subject to immigration control (1) (as defined in
DMG 070833)
1 Immigration Act 1988, s 7

C1023 Asylum seekers

A person who is awaiting a decision on an application for asylum is given temporary
admission and is lawfully present in GB (1). However, unless and until granted asylum,
an asylum seeker is a PSIC.

1 R(IS) 2/06

C1024

A PSIC is not normally entitled to any benefits (1) but there are some exceptions which
include any nationals of countries which have ratified either ECSMA or CESC who
are lawfully present in GB (2).

1 Immigration and Asylum Act 1999, s 115; 2 SS (I&A) Cql Amdts Regs, reg 2(1A) & Sch 1, para 4

C1025

Therefore an asylum seeker from Croatia, Macedonia, or Turkey is not precluded
from UC under section 115. However, an asylum seeker on temporary admission
has neither a right to reside nor can be habitually resident. Simple lawful presence
following temporary admission does not equate to a right to reside (1).
1 R(IS) 8/07 & R(IS) 3/08

[C1026-C1029]

C1030 The Presence Condition

It is one of the basic conditions of entitlement to UC that a person is "in Great
Britain"1. However regulations can (2)
1. provide for exceptions to this basic requirement (3)
2. specify circumstances in which a person is to be treated as being or not being
in GB
3. specify circumstances in which temporary absences can be disregarded and
4. modify the UC rules where a person is entitled to UC because a temporary
absence has been disregarded.
Note: in the case of joint claims, both members of the couple have to satisfy the
basic condition that they be "in GB"4. But see Chapter D1 for guidance on when one
member of a joint claim couple does not satisfy the basic condition while the other
continues to do so (5).
1 WRA 2012, s 4(1)(c); 2 s 4(5); 3 s 4(2); 4 s 3(2); 5 s 4(2) & UC Regs, reg 3

C1031 Meaning of "in Great Britain"

To be "in" a place means to be physically there on the day or period in question. It is
not the same as being resident in a place. A person may be resident in a place
without being present there (1) and vice versa.

1 R(U) 18/60; R(P) 2/67

C1032

With regard to any particular day, a person should be regarded as present if they are
in GB for part of a day: thus the day when a person arrives in GB and a day when
they leave count as days when they are "in" GB.

C1033 Meaning of "Great Britain"

GB
includes (1)
1. England and Wales, and Scotland
2. adjacent islands including, Orkney, Shetland, the Hebrides, the Isles of Scilly,
the Isle of Wight and Lundy

1 Union with Scotland Act 1706 preamble & Art 1; Union with England Act 1707 (Scottish Parliament), Art 1

C1034

N
Ireland (1), the Isle of Man (2) and the Channel Islands (3) are not part of GB.

1 R(S) 5/85, para 9; 2 CSU 14/48; R(U) 8/81; 3 R(P) 2/64

C1035

Persons who do not have to satisfy the condition that they be "in GB"

C1036 Crown Servants and Members of Her Majesty's Forces posted overseas « C1037 « C1038

Crown servants posted overseas and members of Her Majesty's Forces posted
overseas do not have to meet the basic condition that they be "in GB"1 provided that
they (1)
1. are performing overseas the duties of an office or employment as a Crown
servant or (as the case may be) as a member of Her Majesty's Forces and
2. were habitually resident in the UK immediately before the first posting (or the
first of consecutive postings).

1 UC Regs, reg 10

C1037 « C1038

In the case of joint claimants, the partner of a Crown servant posted overseas or a
member of Her Majesty's Forces posted overseas (who, in either case, satisfies the
conditions in C1036) also does not have to meet the basic condition that they be "in
GB"1 while they are accompanying that Crown servant or member of Her Majesty's
Forces on that posting.

1 UC Regs, reg 10(1)(b)

C1038

Provided the conditions in C1036 are satisfied,
1. Crown servants posted overseas,
2. members of Her Majesty's Forces posted overseas and, where C1037 is
satisfied, their joint claim partners,
do not have to be habitually resident in (1), and do not need to have a right to reside
in (1),the Common Travel Area.
1 UC Regs, reg 10(1) & WRA 2012, s 4(1)(c)

C1039 Meaning of "Crown servant"

"Crown servant" means (1) a person holding an office or employment under the Crown.
1 UC Regs, reg 10(3)

C1040 Meaning of "Member of Her Majesty's Forces"

A "member of Her Majesty's forces" means (1)
1. a member of the regular forces (1), namely the Royal Navy, the Royal Marines,
the regular army or the Royal Air Force or
2. a member of the reserve forces (1), namely the Royal Fleet Reserve, the Royal
Naval Reserve, the Royal Marines Reserve, the Army Reserve, the Territorial
Army, the Royal Air Force Reserve or the Royal Auxiliary Air Force
who is over the age of 16 and who gives full pay service (excluding any such person
while absent on desertion).
1 UC Regs, reg 10(3) & Armed Forces Act 06

[C1041-C1044]

C1045 The Habitual Residence Test « C1120

Except where paragraph C1050 applies, a person who is not habitually resident in
the CTA (the UK, the Channel Islands, the Isle of Man or the Republic of Ireland) is
to be treated as not being in GB1 and therefore not satisfying one of the basic
conditions of entitlement to UC. A person must not be treated as habitually resident
in the CTA unless that person has a right to reside, and certain rights to reside do
not count (see C1171 to C1177).
Note: Croatia acceded to the EU on 1.7.13 and the rights of Crotian nationals to
reside in the UK are restricted for an initial period of 5 years (i.e.until 30.6.18).
Guidance on how the habitual residence test applies to Crotian nationas can be
found at C
1 UC Regs, reg 9(1)

[C1046-C1049]

Persons not subject to the Habitual Residence Test

C1050 « C1045 « C1120

Persons with certain specific rights to reside are not subject to the requirement that
they be habitually resident in the CTA. Therefore (subject to satisfying the other
conditions of entitlement for UC) they only need to be present in GB. They are
1. EEA nationals who are "qualified persons" for the purposes of specific
legislation (1) as workers or a self-employed persons2 (see C1060 - C1087)
2. a family member within the meaning given in certain regulations (3) of an EEA
national who is a qualified person as a worker or self-employed person (4) (see C1090 to C1092)
Note:
this does not include "extended family members" (see paragraph C1132 et
seq)
3. certain persons with a right to reside permanently5 in the UK by virtue of
specific regulations (6) (see C1100 to C1105)
4. a
refugee (7) (see C1110 to C1111)
5. a person who
5,1 has been granted discretionary leave to enter or remain in the UK
outside the Immigration Rules (see C1112) or
5.2 has been granted leave to remain outside the Immigration Rules under
the Domestic Violence concession (see C) or
5.3 is deemed to have been granted leave outside the Immigration Rules
by virtue of specific legislation (10) which, in accordance with an EU
directive (9) provides temporary protection to persons affected when the
Council of the EU decides that there is (or will be) a mass influx of
displaced persons who cannot return to their country of origin.
Note DMs will be notified when the provision in sub-para 5.3 is triggered
6
a person who has humanitarian protection granted under the immigration
rules (9) (see C1114)
7. a person who is not a PSIC (see paragraph C1010 et seq) who is in the UK as
a result of his deportation, expulsion or other removal by compulsion of law
from another country to the UK (10).
1 Imm (EEA) Regs, reg 6(1); 2 UC Regs, reg 9(4)(a); 3 Imm (EEA) Regs, reg 7(1)(a)(b) or (c);
4 UC Regs, reg 9(4)(b); 5 UC Regs, reg 9(4)(c); 6 Imm (EEA) Regs, reg 15(1)(c), (d) & (e);
7 UC Regs, reg 9(4)(d); 8 reg 9(4)(e); 9 reg 7(4)(f); 10 reg 9(4)(g)

[C1051-C1059]

C1060 Workers « C1050 « C1065 « C1159 « L3107 « L3128

An EEA national who is in genuine and effective employment in the UK is a worker
for EU purposes (1).

1 Imm (EEA) Regs, reg 4(1)(a) & Case C-53/81 D.M. Levin v Staatssecretaris van Justitie.

C1061 « C1074 « C1156

However in order for a person to be exercising their EU law rights of free movement
as a "worker", there must be a genuine link between that person and the labour
market of the host member state. A worker must be actively pursuing activities as an
employed person (1). Accordingly, before considering the guidance in C1061 - C1063
below about whether the work itself is genuine and sufficient, DMs should consider
the preliminary question of whether the claimant is genuinely exercising their EU
rights as a "worker". In deciding this question, DMs can look at all the
circumstances, including the person's primary motivation in taking up employment
and whether, during periods when they were not employed, the person seriously
wished to pursue employment by actively looking for work with a genuine chance of
being engaged. Thus it is open to DMs to conclude that (for example) a person who
does a very brief period of part-time work solely in order to establish a right to reside
and thus entitlement to benefit is not exercising their EU rights as a worker.
1 De Biasi v Secretary of State for the Home Department [2012] EWCA Civ 1015

Example

Thijs is a Dutch national. He first came to the UK in 1999 and has resided in the UK
ever since. He claimed UC on 2.4.14. The DM established that the only work Thijs
had done in the UK was a period of 8 weeks February and March 2014 when he
worked as a part-time cleaner for 8 hours per week at an hourly rate of £10 per hour.
There was no evidence that he had been self sufficient at any time since 1999, nor
that he had genuinely been seeking employment during that period. The DM
concluded that Thijs was not a worker and that accordingly he had not retained
worker status.

C1062 Genuine and effective work « C1159 « C1186

The DM should be satisfied that the work is genuine and effective and is not on such
a small scale as to be marginal and ancillary (1). As the terms "genuine and effective"
and "marginal and ancillary" are not defined in EU law, the DM should decide each
case on its own merit. The DM should take account of all work done in the UK and
consider, amongst other things
1. the period of employment
2. the number of hours worked
3. the level of earnings
4. whether the work was regular or erratic
1 CH/3314/2005, CIS/3315/2005 paras 21-30; Case C-357/89 Raulin (1992) ECR 1027;

Example

An EEA national arrives in the UK and stays with a relative who has a shop. She
does not have an offer of a job but helps out in the shop for an hour or two when she
can, for which she is paid £20 per week. She claims UC immediately on arrival. The
claimant is not a refugee and has not been given exceptional leave to remain in the
UK. The DM considers whether the work in the UK was genuine and effective. As
she only worked for a few hours a week, in work that was irregular and low paid the
DM decides that the work was not genuine and effective because it was on such a
small scale as to be marginal and ancillary. The claimant is not a worker.

C1063 « C1061 « C1065 « C1156 « L3128

Work that is part time or low paid is not necessarily always marginal and ancillary. A
part time worker may be considered a worker for EU purposes and retain a right to
residence in the UK as long as the work is genuine and effective.

Example

An EEA national who claims UC shows that he has been working for three hours per
day, five days per week for the last four months. The DM decides that the work is
genuine and effective because it is not on such a small scale as to be marginal and
ancillary. The work was on a regular basis continuing for a reasonable length of time.

C1064

C1065 Retaining Worker Status « C1084 « C1095 « C1156 « C1176 « L3107

Workers retain worker status when they stop working if
1. they are temporarily unable to work because of illness (1) or
2. they are in duly recorded involuntary unemployment after having been
employed in the UK provided that they are registered as a jobseeker with the
relevant employment office and2
2.1 they were employed for a year or more before becoming unemployed
or
2.2 they have been unemployed for no more than six months or
2.3 they can provide evidence that they are seeking employment in the UK
and have a genuine chance of being engaged. or
3. they are in involuntarily unemployed and have started vocational training (3)
4. they have voluntarily stopped working and started vocational training that is
related to their previous employment (4).
Note: See also C1060 to C1063 for guidance on whether the person was a worker
the first place
1 Imm (EEA) Regs, reg 6(2)(a); 2 reg 6(2)(b); 3 reg 6(2)(c); 4 reg 6(2)(d)

[C1066-C1070]

C1071 Self- employed persons « L3107

In the context of EU rights to reside it is the EU law meaning of self-employed that
has to be applied. EU law distinguishes between "workers" (who are persons who
perform "services for and under the direction of another person in return for which he
receives remuneration"1) and self-employed (who are "independent providers of
services who are not in a relationship of subordination with the person who receives
the services"2). The CJEU has also stated (3) that the following three factors are
characteristic of self-employment
1. there is no relationship of subordination concerning the choice of activity,
working conditions and conditions of remuneration
2. the activity is engaged under the person's own responsibility
3. the remuneration is paid in full to the person so engaged directly
In addition self-employed earners derive their right to move and reside from article
49 of the TFEU rather than article 45 which applies to workers.
1 Case C-357/89 Raulin v Minister Van Onderwijs en Wtenschappen;
2 Case C-256/01 Allonby v Accrington and Rossendale Colleg e;

3 Case C-268/99, Jany v Staatssecretaris van Justitie

C1072 « C1175 « C1186

Questions may arise as to whether at any particular moment in time a claimant is a
self-employed person. An Upper Tribunal Judge has said this (1)
"I do not accept that a claimant who is for the moment doing no work is necessarily
no longer self-employed. There will commonly be periods in a person's self-
employment when no work is done. Weekends and holiday periods are obvious
examples. There may also be periods when there is no work to do. The concept of
self-employment encompasses periods of both feast and famine. During the latter,
the person may be engaged in a variety of tasks that are properly seen as part of
continuing self-employment: administrative work, such as maintaining the accounts;
in marketing to generate more work; or developing the business in new directions.
Self-employment is not confined to periods of actual work. It includes natural periods
of rest and the vicissitudes of business life. This does not mean that self-
employment survives regardless of how little work arrives. It does mean that the
issue can only be decided in the context of the facts at any particular time. The
amount of work is one factor. Whether the claimant is taking any other steps in the
course of self-employment is also relevant. The claimant's motives and intentions
must also be taken into account, although they will not necessarily be decisive."

1 SSWP v JS [2010] UKUT 240 (AAC)

C1073

DMs will have to arrive at a judgement based on all the facts of the case in
accordance with this guidance

C1074

Self-employment must also satisfy the condition that the work involved be genuine
and effective (see para C1061 above).

C1075 Retaining the status of being a self-employed person « C1095 « L3107

A self-employed person retains that status only if he is unable to work temporarily as
a result of an illness or accident (1).
1 Imm (EEA) Regs, reg 6(3); R (on the application of Marian Tianu) v
Social Fund Inspector and SSWP [2010] EWCA Civ 1397

C1076 A2 Nationals (Nationals of Bulgaria and Romania)

Romania and the Republic of Bulgaria joined the EU on 1.1.07. Transitional
provisions in the Treaty of Accession allow derogation from the principle of freedom
of movement within the EEA (1) for a limited period, initially five years after 1.1.07.
Regulations on immigration (2) restrict the right to reside in the UK of nationals of
Bulgaria and Romania (known as A2 nationals). The transitional provisions also
gave Member States the option of extending the initial period for a further two years.
The UK government has decided to exercise this option and the restrictions
continued until 31.12.133.
Note The restrictions on the EU law rights to reside of Bulgarian and Romanian
nationals described in C1076 to C1087 were lifted with effect from 1.1.14 (see C1088 et seq).
1 Treaty establishing the European Community; Regulation (EEC) 1612/68, A 1-6;
2 Accession Regs 2006, reg 6; 3 reg 1(2)(c), definition of "accession period"

C1077 Derogation for A2 nationals

A2 nationals wishing to work in the UK must, except where they are exempt from the
requirement, obtain a worker authorization document before they commence
employment in the UK (1). (See C1082 onwards for those A2 nationals who are not
subject to worker authorization).

1 Accession Regs, reg 9(1)

C1078

To have a right to reside as a worker, an A2 national who is subject to worker
authorization, must have a worker authorization document and be working in
accordance with the conditions set out in that authorization document (1).

1 Accession Regs, reg 6(2)

C1079

If A2 nationals subject to worker authorization cease working for any reason,
including illness or involuntary unemployment, they cease to have a right to reside in
the UK as a worker (1).

1 Accession Regs, reg 6(3)

C1080

An A2 national who is subject to worker authorization and who is a work seeker,
does not have a right to reside as a work seeker (1), although he may have a right to
reside if he is self-sufficient.
1 Accession Regs, reg 6(2); The Imm (EEA) Regs 2006, reg 6(1)

C1081 A2 nationals exempt from the habitual residence test

A2 nationals do not have to satisfy the habitual residence test if they
1. are subject to worker authorization and
2. have a worker authorization document and
3. are working in accordance with the conditions in that document (1).
1 Accession Regs 2006, reg 6(2)

C1082 Exempt from worker authorization « C1077 « C1084

However certain categories of nationals of Bulgaria and Romania are not subject to
worker authorization. A2 nationals are not subject to worker authorization where they
1. have leave to enter or remain in the UK under the Immigration Act 1971 and
their immigration status has no condition restricting employment (1) or
2. were legally working (2) in the UK on 31.12.06 and had been so working in the
UK without interruption for a continuous period of 12 months ending on that
date (3) or
3. legally work in the UK without interruption for a period of 12 months falling
partly or wholly after 31.12.06, at the end of that 12 month period (4) or
4. have dual nationality and is also a national of the UK or some other EEA State
(other than Bulgaria or Romania)5, or during any period where they are the
spouse or civil partner of a UK national (6) or
5. are the spouse, civil partner or child under 18 of a person who has leave to
enter or remain in the UK (7), where that leave allows the person to work in the
UK (8).
6. has a permanent right of residence (9) under regulation 15 of the Immigration
(EEA) Regs 2006 or
7. is a family member of an EEA national (10) who has a right to reside in the UK
under certain legislation (11) other than a family member in an excluded
category (12) or
8. is (13) the spouse, civil partner or descendant of an accession A2 national
subject to worker authorisation who has a right to reside as a worker (14).
However the descendant must be either
8.1 under 21 or
8.2 dependent on the accession state worker subject to worker
authorisation.
9. is highly skilled and holds a registration certificate from the HO that includes a
statement that they have unconditional access to the UK labour market (15) or
10. is in the UK as a student and does not work for more than 20 hours per week
and holds a registration certificate that includes a statement that they are a
student who has access to the UK labour market for 20 hours a week (16) or
11. is a posted worker (17) as defined in EU legislation (18), being an A2 national
working for an employer of another member state but posted to work in the
UK, during the period of the posting.
Note These A2 nationals exempt from worker authorisation should be treated in the
same way as "normal" EEA nationals (see C1084).
1 Accession Regs, 2006 reg 2(2); 2 reg 2(12); 3 reg 2(3); 4 reg 2(4); 5 reg 2(5); 6 reg 2(6);
7 Imm Act 71; 8 Accession Regs 2006, reg 2(5A); 9 reg 2(7); 10 reg 2(8); 11 Imm (EEA) Regs 2006;
12 Accession Regs 2006, reg 3(8)(a) & (b); 13 reg 2(8A); 14 Imm (EEA) Regs, reg 14(1) & 6(1)(b);

15 Accession Regs 2006, reg 2(9); 16 reg 2(10); 17 reg 2(11); 18 Directive 96/71/EC, Art 1(3)

C1083

A2 nationals who fall into the above groups can obtain a registration certificate from
the HO to confirm their status, or may have a valid passport marked with
1. a UK residence permit granting leave to remain with permission to work that
has not expired or
2. indefinite leave to remain or
3. a "no time limit" stamp.

C1084 « C1082

A2 workers who are exempt from the worker authorization scheme (see C1082)
should be regarded in the same way as other EEA nationals. So if, for example, they
are exempt by virtue of being workers (or retain the status of worker as described in
C1065), they do not need to be habitually resident in the CTA (1).
1 UC Regs, reg 9(4)(a)

C1085 Uninterrupted work

A person is treated as having worked in the UK without interruption for a period of
twelve months if he was
1. legally working in the UK at the beginning and end of that period and
2. any intervening periods in which he was not legally working in the UK do not,
in total, exceed 30 days (1).
1 Accession Regs 2006, reg 2(12)(c)

C1086 Self-employed

Transitional provisions in the Treaty of Accession do not allow derogation from the
principle of freedom of movement for self-employed persons within the EEA (1).
Bulgarian and Romanian nationals who are working in the UK in a self-employed
capacity are not subject to worker authorization while they are working, and are
qualified persons with normal EEA rights whilst pursuing activities as self-employed
persons.

1 TFEU, art 49

C1087 « C1050 « C1076

An A2 national who is a self-employed person in the UK will retain that status if he is
temporarily unable to pursue his activity as a self-employed person as the result of
an illness or accident (1).
1 Imm (EEA) Regs, reg 6(3); 2 reg 6(1)(c); R (on the application of Marian Tianu) v Social Fund Inspector and
SSWP [2010] EWCA Civ 1397
Bulgarians and Romanians - Ending of Restrictions

C1088 Effect on JSA(IB) « C1076

With effect from 1.1.14, A2 nationals can be jobseekers (). This means that, for the
purpose of JSA(IB) they have a right to reside if they are seeking work (1). DMs are
reminded however that JSA(IB) claimants with a right to reside as jobseekers must
be actually habitually resident in the UK (see DMG 071340 et seq).
1 JSA Regs, reg 85A(2) & (3); Imm (EEA) Regs, reg 6(1)(a)
Transitional Rules

C1089 A2 National who was subject to worker authorisation

Where an A2 national was subject to worker authorisation (see DMG 071291 et seq)
before 1.1.14 then certain particular rules, as described in DMG 071307 to 071311
below apply to them.

C1090 Retaining Worker Status « C1050

An A2 national who is subject to worker authorisation on 31.12.13 can only retain
worker status as a person
1. who, having worked in the UK, is in duly recorded involuntary unemployment,
is registered with the relevant employment office and has genuine prospects
of engagement or
2. where that person became unemployed or ceased to work because of illness
on or after 1.1.141.
1 Imm (EEA) Regs, reg 7B(5)

C1091 Permanent Right to Reside « C1100 « C1105 « C1134

An EEA national who has resided in the UK in accordance with the Imm (EEA) regs
continuously for five years (1) acquires a permanent right to reside. An A2 national who
was subject to worker authorisation before 1.1.14 shall be treated as having resided
as a worker in accordance with the Imm (EEA) Regs only for those periods when
they were "legally working" in the UK (2) (see DMG 071309 below).
Note: A2 nationals may also have resided in accordance with the Imm (EEA) regs in
other ways which may count for the purposes of the acquisition of a permanent right
to reside; for example as a self-employed person or as a student.
1 Imm (EEA) Regs, reg 15; 2 reg 7B(6)

C1092 Meaning of "legally working" « C1050

For the purpose of DMG 071308, a person was "legally working" with respect to
periods of work by an A2 national in the UK on or after 1.1.07 either
1. when they were exempt from worker authorisation when working or
2. when they held an accession worker authorisation document and were
working in accordance with the conditions set out in that document or
3. with regard to any period when they were working lawfully under UK domestic
law.

C1093 Workers who have ceased activity

Certain EEA nationals who permanently cease activity as workers or self-employed
persons can acquire a permanent right to reside in the UK (1) (see DMG 071196). The
conditions for acquiring this right include the need to have completed certain periods
of activity as a worker and the Imm (EEA) regs (2) treat certain periods of
unemployment, sickness etc as periods of such activity.

1 Imm (EEA) Regs, reg 15(1)(c); 2 reg 5(7)

C1094

In the case of A2 nationals who are/were subject to worker authorisation as at
31.12.13, periods of involuntary unemployment duly recorded by the relevant
employment office will only be treated as periods of activity as a worker if the
unemployment began on or after 1.1.141.
1 Imm (EEA)Regs, reg 7B(4)

C1095 Family Members of Workers and Self-employed persons

Family members (see paragraph C1096) of EEA nationals who are workers or self-
employed persons have the same rights of residence as those persons and are
entitled to reside in the UK for as long as they remain family members (1). This
includes the family members of EEA nationals who retain worker status (see
paragraph C1065) or retain the status of self-employed person (see paragraph
C1075).
1 Imm (EEA) Regs, reg 14(1) & (2)

C1096 Meaning of Family Member « C1095

The following are family members
1. a spouse (husband or wife) or civil partner (1);
2. direct descendants of the EEA national, or of the EEA national's spouse or
civil partner, who are (2)
2.1 under the age of 21 or
2.2 dependants of the EEA national or the EEA national's spouse or civil partner
3. dependent direct ascendant relatives of the EEA national, the EEA national's
spouse or civil partner (3)..
1 Imm (EEA) Regs, reg 7(1)(a); 2 reg 7(1)(b); 3 reg 7(1)(c)

C1097 Meaning of "dependent" « C1133

A UT Judge has analysed the EU case law on the meaning of "dependent" in this
context. He summarised that case law (1) as finding that (2)
1. a person is only dependent who actually receives support from another
2. there need be no right to that support and it is irrelevant that there are
alternative sources of support available
3. that support must be material, although not necessarily financial, and must
provide for, or contribute towards the basic necessities of life.
1 Case C-316/85, Centre Public D'Aide Sociale de Courcelles v Lebon; Case C-2000/02,
Chen v Secretary of State for the Home Department; Case C-l/05, Jia v Migrationsverket; 2 CIS/2100/07

C1098 Family Members of British Citizens

A person who is a family member of a British citizen (BC) has the same rights to
reside in the UK as if they were the family member of a national of any other EEA
state (except Croatia - on which see C et seq), provided that the following conditions
are satisfied
1. the BC was residing in an EEA state (other than the UK) as a worker or S/E
person before returning to the UK and
2. the centre of the BC's life had transferred to the EEA state where the BC was
residing as a worker or S/E person and
3. if the family member is the BC's spouse or civil partner, the parties to the
marriage or civil partnership
3.1 had married or become civil partners in an EEA state (other than the
UK) and
3.2 were living together in that EEA state before returning to the UK

1 Imm (EEA) Regs, reg 9(2)

C1099

Factors that are relevant to whether the centre of the BC's life had transferred to
another EEA state (other than the UK) include, but are not limited to (1)
1. the period of residence in the EEA state as a worker or S/E person
2. the location of the BC's principal residence and
3. the degree of the BC's integration in the EEA state.
1 Imm (EEA) Regs, reg 9(3)
Certain Persons with a Permanent Right to Reside in the EEA

C1100 Worker or Self-employed person who has ceased activity « C1050 « C1121 « C1148

EEA nationals who are workers or self-employed persons who have ceased activity
in the circumstances described in paragraphs C1101 to C1105 below and their
family members (as defined in paragraph C1091) acquire a permanent right to
reside in the host Member State (1). Such a person is not required to be habitually
resident in GB (2).
1 Imm (EEA) Regs, reg 15(1)(c), (d) & (e); 2 UC Regs, reg 9(4)(c)

C1101 Retirement « C1100 « C1104

A person is a worker or self-employed person who has ceased activity if that
1
person -
1. stops working
and
2. either
2.1 has reached the age at which he is entitled to a state pension on the
day they stop work or
2.2 in the case of a worker, has taken early retirement and
3. was working in the UK for at least 12 months before stopping (but see note)
and
4. resided in the UK continuously for more than three years before stopping work
(but see note)
Note: Where the spouse or civil partner of the worker or S/E person is a British
citizen, the conditions in subparagraphs 3 and 4 above on length of residence or
time working will not apply (2)
1 Imm (EEA) Regs, reg 5(2); 2 reg 5(6)

C1102 Permanent Incapacity

A person is a worker or self-employed person who has ceased activity if that person (1)
1. stops working as a result of a permanent incapacity for work and
2. either
2.1 except where the person is the spouse or civil partner of a British
citizen (2) , resided in the UK continuously for 2 years prior to stopping
work or
2.2 the permanent incapacity is the result of an accident at work or an
occupational disease that entitles them to a pension payable (in full or
in part) by a UK institution.
1 Imm (EEA) Regs, reg 5(3); 2 reg 5(6)

C1103 Working Abroad but Place of residence retained in the UK « C1104

A person is a worker or self-employed person who has ceased activity where they (1)
1. are working in employment or as a self-employed person in an EEA state
other than the UK but retain a place of residence in the UK to which they
return at least once a week and
2. before that work started, had been continuously resident and continuously
active as a worker or self-employed person in the UK.
1 Imm (EEA) Regs, reg 5(4)

C1104 Periods treated as periods of working

In calculating periods when the person was working for the purposes of paragraphs C1101to C1103, the following periods are included as periods of work (1)
1. periods of inactivity not of the person's own making and
2. periods of inactivity due to illness or accident and
3. in the case of
3.1. a worker, periods of involuntary unemployment duly recorded by the
relevant employment office except where subparagraph 3.2 applies,
3.2. A8 nationals who were required to register as a worker as at 30.4.11.
periods of involuntary unemployment duly recorded by the relevant
employment office but only where (2)
3.2.a. they ceased working during the first month of registered
employment, for the remainder of that month and
3.2.b the accession worker became unemployed or ceased work on
or after 1.5.11.
1 Imm (EEA) Regs, reg 5(7); 2 reg 7A(3)

C1105 Family Members of Worker who has died « C1050 « C1100 « C1121 « C1148

A person who was a family member (within the meaning given in paragraph C1091)
of a worker or self-employed person acquires a permanent right to reside where (1)
1. the worker or self-employed person has died and
2. the family member resided with the worker or self-employed person
immediately before their death and
3. either
the worker or self-employed person
3.1 had resided continuously in the UK for at least 2 years immediately
before they died or
3.2 the death was as a result of an accident at work or an occupational disease
Such a person is not required to be habitually resident in the UK for UC purposes (2).
1 Imm (EEA) Regs, reg 15(1)(e); 2 UC Regs, reg 9(4)(c)

[C1106-C1109]

C1110 Refugees « C1050

Refugees (1) are people who are outside their country of origin and are unwilling to
return there for fear of persecution because of their
· race
· religion
· nationality
· political opinion
·
membership of a social group.

1 Convention relating to the Status of Refugees, Art. 1 (as extended)

C1111 « C1050

People recognized as refugees by the Immigration and Nationality Directorate are
granted asylum. From 30 August 2005 they will have been granted limited leave to
enter or remain for five years, rather than indefinite leave. Spouses, recognized civil
partners, and dependent children under the age of 18 are normally allowed to join a
refugee in the UK immediately, and are also granted asylum. Refugees, their
spouses or recognized civil partners and dependants who are granted asylum are
not subject to the habitual residence test (1).
1 UC Regs, reg 9(4)(d)

C1112 Discretionary leave « C1050

The HO may alternatively grant discretionary leave outside the immigration rules.

C1113

Humanitarian protection and discretionary leave replaced exceptional leave to enter
or remain from 1 April 2003 but there will still be residual cases of exceptional leave
to 2007. Whereas indefinite leave to remain gave a right to permanent residence,
limited leave, humanitarian protection, discretionary leave and exceptional leave do
not guarantee that right.
The HO may refer to
1. limited leave given to refugees or
2. exceptional leave to remain or
3. leave to remain on an exceptional basis or
4. humanitarian protection or
5. discretionary leave.
A claimant given one of the above is not subject to the habitual residence test (1) for as
long as the leave lasts, including periods when he/she has applied in time for an
extension of leave.
1 UC Regs, reg 9(4)(e) & (f)

C1114 Destitution Domestic Violence concession « C1050 « C1120

Since 1.4.12, individuals who came to the UK or were granted leave to stay in the
UK as the spouse or partner of
1. a British citizen or
2. someone settled in the UK
and whose relationship has broken down due to domestic violence have been able
to apply to the Home Office for limited leave to remain (granted outside the
Immigration Rules) pending consideration of an application for indefinite leave to
remain.

C1115

The Home Office consider whether:
1. the applicant entered the UK or was given leave to remain in the UK as a
spouse, civil partner, unmarried or same sex partner of a British Citizen or
someone present and settled in the UK and
2. the relationship has broken down due to domestic violence and
3. they do not have the means to access accommodation or to support
themselves and need financial help and
4. they will apply to stay permanently in the UK under the Destitution Domestic
Violence immigration rule (1).
If the Home Office accepts that someone satisfies all 4 of the conditions above it will
issue the applicant with letters notifying the start and end date for 3 months limited
leave to remain in the UK. During this 3 month period the claimant must apply to stay
permanently under the Domestic Violence immigration rule (1).

1 Immigration Rules, rule 289B

C1116

If the person has made an application to stay permanently within the 3 month period
but the Home Office has not yet made a decision by the end of the 3 month period,
the period of limited leave under the Destitution Domestic Violence concession
continues until the final decision is made. In these circumstances (i.e. where an
application has been made within the 3 month period but the Home Office has not
made a decision within that 3 month period) where the final decision is a refusal to
grant indefinite leave to remain, the limited leave continues for a further 10 days after
the Home Office decision is sent to the applicant.

C1117

During any period when a person has limited leave under the Destitution Domestic
Violence concession (including the periods of extension described in paragraph 8
above), that person does not have to satisfy the requirement that they be habitually
resident in the CTA (1) and therefore (provided they satisfy the other conditions of
entitlement) will be eligible for UC.
1 UC Regs, reg 9(1) & (4)(e)(ii)

C1118 Humanitarian Protection

The HO may grant humanitarian protection within the immigration rules to persons
who have not been recognised as refugees but who are considered likely to face
serious harm in their country of origin. As with refugees the family members of a
person granted humanitarian protection are allowed to join that person and are
granted the same leave. Under EU law common criteria for the identification of
persons genuinely in need of international protection are applied across EU Member
States (1). A new category of protection is introduced, known as subsidiary protection,
which is aligned with the present category of humanitarian protection. Persons
granted humanitarian protection within the immigration rules do not have to satisfy
the habitual residence test (2).
1 Directive 2004/83/EC; 2 UC Regs, reg 9(4)(f)

C1119

Right to Reside- Habitual Residence Test Applies

C1120 Introduction

C1050 to C1114 set out the groups of people with certain specific rights to reside
who are exempt from the requirement that they be habitually resident in the CTA. As
stated in C1045, a person cannot be treated as habitually resident in the CTA unless
that person has a right to reside in the CTA (1). The following paragraphs set out the
groups of people who have a right to reside in the CTA. These people will
nonetheless have to be actually habitually resident in the CTA (2) (see C1190 et seq).
The list is not exhaustive and DMs may need to contact the Home Office to establish
whether a person has a right to reside.
Note whether a person has a right to reside in the UK is determined by domestic
nationality and immigration law for non-EEA nationals and by EU law and domestic
immigration law for EEA nationals and their family members arriving in the UK and
claiming free movement rights.

1 UC Regs, reg 9(2); 2 reg 9(1)

C1121

The following persons have the right to reside in the UK and therefore in the CTA but
will have to satisfy the requirement that they be actually habitually resident in the
CTA
1. UK nationals (including persons from other countries who are granted British
citizenship).
2. certain qualified persons (see C1125)
3. family members of certain qualified persons and certain family members EEA
nationals with a permanent right of residence
4. extended family members of "qualified persons" or EEA nationals with a
permanent right of residence (C1132)
6. persons who have acquired the right of permanent residence (except the
groups referred to in C1100 to C1105)
7. family members who have retained a right to reside (C1148)
8. the parent and primary carer of the child of a migrant worker who is in
education in the UK (C1150 et seq)

[C1122-C1124]

C1125 Certain Qualified persons « C1121 « C1132 « C1132

The following persons (who are EEA nationals in the UK) and their family members
(see) have an EU right to reside as "qualifying persons" but must satisfy the habitual
residence test.
1. jobseekers (1) (see C1126)
2. self-sufficient
persons (2) (see C1127)
3. students (3) (see C1130)
1 Imm (EEA) Regs, reg 6(1)(a); 2 reg 6(1)(d); 3 reg 6(1)(e)

C1126 Jobseekers « C1125

Jobseekers and their family members have a right to reside for an initial period of six
months, and for longer if they are seeking employment, and have a genuine chance
of being engaged (1)
1 Directive 2004/38/EC, Art 14(4)(b); Case C-292/89, Antonissen; Imm (EEA) Regs, reg 6(1)(a), & reg 14;

C1127 Self-sufficient persons with comprehensive sickness insurance « C1125 « C1177

EEA nationals who
1. have sufficient resources for themselves and their family members not to
become a burden on the social assistance system of the UK and
2. have comprehensive sickness insurance cover in the UK
and their family members have a right to reside (1) but must satisfy the habitual
residence test.

1 Directive 2004/38/EC, Art 7(1)(b); Imm (EEA) Regs, reg 4(1)(c)

C1128 « C1130

An EEA national's resources (and where applicable the resources of their family
members) are to be regarded as "sufficient" if (1)
1. they are greater than the level of resources at or below which a British
Citizens (and where appropriate their family members) would be entitled to
social assistance in the UK or
2. C1128.1 does not apply (i.e. resources are not above social assistance levels)
but, taking into account the personal situation of the person concerned (and
where applicable their family members), it appears to an immigration officer,
an entry clearance officer or the Home Office, that the resources of the
person(s) concerned should be regarded as sufficient.
Note: In the UK, social assistance includes SPC and UC

1 Imm (EEA) Regs, reg 4(4)

C1129 « C1130

The requirement for comprehensive sickness insurance is not met by simple access
to free treatment under the NHS. However, a claimant will have comprehensive
sickness insurance where the UK is entitled to reimbursement of NHS healthcare
costs from another Member State (1). This will usually be the case where the claimant
is receiving a pension or invalidity benefit from another Member State, but it can
arise in other circumstances. The European Health Insurance Card (EHIC) only
offers comprehensive sickness insurance where the EU citizen concerned has not
moved residence to the UK and intends to return to his home state, such as a
student on a course in the UK (2).
1 SG v Tameside MBC (HB) [2010] UKUT 243 (AAC);
2 European Commission COM 2009) 313 & SG v Tameside MBC (HB) [2010] UKUT 243 (AAC)

C1130 Students « C1125 « C1177

A
student (1) means a person who
1. is enrolled for the principal purpose of following a course of study (including
vocational training) at a public or private establishment which is
1.1 financed from public funds or
1.2 otherwise recognised by the Secretary of State as an establishment
which has been accredited for the purpose of providing such courses or
training within the law or administrative practice of the part of the UK in
which the establishment is located"
and
2. assures the Secretary of State that he has, and his family members have,
sufficient resources (see C1128) to avoid him and his family members
becoming a burden on the social assistance system of the UK and
3. is covered, and his family members are covered, by sickness insurance in
respect of all risks in the UK (see C1129 above) .
Note: Students and their family members (see C1131) have a right to reside but will
not normally be entitled to UC because that right depends upon them not becoming
a burden on the UK's social assistance system (of which UC is a part).
1 Directive 2004/38/EC, Art 7(1)(c) and (d); Imm (EEA) Regs, reg 4(1)(d)

C1131 Family members of students « C1130 « C1181

In the case of an EEA student, other than a student who is a "qualified person" under
other provisions, after the period of three months beginning on the date on which the
student is admitted to the UK only the following shall be treated as his family
members (1)
1. his spouse or civil partner
2. the dependent children of the student, his spouse or civil partner.
1 Imm (EEA) Regs, reg 7(2)

C1132 Family Members « C1050 « C1133 « C1181

The family members of the qualified persons listed at C1125 residing in the UK have
the same rights to reside as that qualifying person as long as (1)
1. they remain a member of the family of that person and
2. that person continues to be a qualifying person or to have a permanent right to
reside.
Note: Like the qualifed persons listed at C1125 from whom they derive their right to
reside these family members have to be actually habitually resident.
1 Imm (EEA) Regs, reg 14(2)

C1133 Meaning of "family member"

For the purposes of C1132, a "family member" means (1)
1. spouse (husband or wife) or civil partner
2. direct descendants of the EEA national, his spouse or civil partner who are
2.1 under the age of 21 or
2.2 dependants of his, his spouse or civil partner
3. direct ascendant relatives of the EEA national, his spouse or civil partner, who
are dependants.
4. extended family members (C1134)
Note:
See C1097 for advice on dependency
1 Imm (EEA) Regs, reg 7(1)

C1134 "Extended family members"

An "extended family member" is (1) a person (who is not a family member of an EEA
national within the meaning given in C1091) who is a relative (or in one case, a
partner) of
1. an EEA national, or
2. the EEA national's spouse or civil partner
who are treated as family members for the purposes of the right to reside aspect of
the habitual residence test only. They may or may not be EEA nationals (2).

1 Imm (EEA) Regs, reg 8; 2 Directive 2004/38/EC, Art 3(2);

C1135

An extended family member should have an EEA family permit, a registration
certificate or a residence card. They will continue to be treated as a family member
as long as they hold such documents (1) and
1. reside in any state other than the UK and are dependent on the EEA national
or is a member of the EEA national's household (2) or
2. satisfied the conditions in 1., and are accompanying the EEA national to the
UK or wish to join the EEA national in the UK (3) or
3. satisfied the conditions in 1., and have joined the EEA national in the UK and
continue to be dependent on the EEA national or a member of his household (4)
or
4. on serious health grounds strictly require the personal care of the EEA
national, his spouse or civil partner (5) or
5. would meet the requirements in the immigration rules (other than those
relating to entry clearance) for indefinite leave to enter or remain in the UK as
a dependent relative of the EEA national were the EEA national a person
settled and present in the UK (6) (where this applies DMs should submit such
cases to DMA Leeds for advice as evidence from the HO will be needed and
their guidance will be required on the application of the Immigration Rules) or
6. are the partner of an EEA national (other than a civil partner) and can prove
that they are in a durable relationship with the EEA national (7).
Extended family members of EEA nationals who are students are issued with family
permits, registration certificates or residence cards under specific provisions (8). DMs
should submit such cases to DMA Leeds for advice as evidence from the HO will be
required about the provisions under which those documents have been issued.
1 Imm (EEA) Regs, reg 7(3); 2 reg 8(2)(a); 3 reg 8(2)(b);

4 reg 8(2)(c); 5 reg 8(3); 6 reg 8(4); 7 reg 8(5); 8 reg 7(4)

C1136

to C1139

C1140 Permanent Right to Reside - 5 Years' Residence

The EU Citizenship Directive (1) introduced for the first time a permanent right to reside
for EU citizens and members of their family who have resided legally in a host
Member State of the EU for a continuous period of five years. The Directive was
brought into force in the UK by regs (2) which took effect from 30.3.06.

1 Directive 2004/38/EC; 2 Imm (EEA) Regs 2006

C1141

Under the Imm (EEA) regs the following persons acquire the right to reside in the UK permanently
1. an EEA national who has resided in the UK in accordance with the Imm (EEA)
Regs for a continuous period of five years (1)
2. family members of EEA nationals (who are not themselves EEA nationals)
who have resided in the UK in accordance with the Imm (EEA) Regs for a
continuous period of five years (2).
Note: subject to C1143, a break in continuity during which residence is not in
accordance with the Imm (EEA) Regs) will mean that the five year qualifying period
has to be served afresh. Periods when the person resided legally before the break
will not count. Put another way, the clock is reset to zero.

1 Imm (EEA) Regs, reg 15(1)(a); 2 reg 15(1)(b)

C1142

The five year qualifying period therefore includes periods during which the EEA national
1. was a worker or self employed person in the UK; or
2. retained worker status in the UK whilst temporarily incapable of work because
of illness or accident or whilst involuntarily unemployed and seeking work or
3. was both self-sufficient and had comprehensive sickness insurance for
themselves and their family members or
4. was a student who is both self sufficient and has comprehensive sickness
insurance for themselves and their family members or
5. was a family member accompanying or joining a person who satisfied the
above conditions.

C1143 Note: « C1141

this list is not exhaustive

Temporary absences that do not break continuity

Certain temporary absences from the host Member State will not break the
continuity of residence (1)
1. absences not exceeding six months in a year
2. absences of more than six months for compulsory military service
3. one absence of a maximum of 12 consecutive months for important reasons
such as
3.2 pregnancy
3.3 childbirth
3.4 serious illness
3.5 study or vocational training
3.6 a posting abroad
1 Directive 2004/38/EC, Art 16(3)

C1144 Qualifying period - effect of periods of residence before 30.4.06 - EEA nationals « C1146 « C1146

Subject to paragraph C1146 below, any period during which an EEA national carried
out activities or was resident in the UK in accordance with specific regulations (1) (i.e.
the UK regulations and Directives concerning the right to reside in EU law that were
in force before 30.4.06) is to be treated as a period in which that activity or residence
was in accordance with the Imm (EEA) Regs (2). Accordingly this will count towards the
qualifying period for the acquisition of a permanent right to reside. But note that the
permanent right to reside can only take effect from 30.4.06.
1 Imm (EEA) Regs 00; Imm (EEA) Order 94; Dir 64/221 /EEC; Dir 68/360/EEC; Dir 72/194/EEC;
Dir 73/148/EEC; Dir 75/34/EEC; Dir 75/35/EEC; Dir 90/364/EEC; Dir 90/365/EEC; Dir 93/96/EEC;
2 Imm (EEA) Regs, Sch 4, para 6(2);

C1145 Qualifying period - periods before accession « C1146 « C1146

Subject to paragraph C1146 below, any period during which a national of a non-EEA
state which subsequently became an EEA state carried out an activity or was
resident in the UK throughout which they
1. had leave to enter or remain in the UK and
2. would have been carrying out that activity or residing in the UK in accordance
with the Imm (EEA) Regs
2.1 had the Imm (EEA) Regs been in force and
2.2 the person's state of nationality had been an EEA state
at that time.
is to be treated (1) as a period of activity or residence in the UK completed in
accordance with the Imm (EEA) Regs. Such periods will therefore count towards the
acquisition of a permanent right to reside.
1 Imm (EEA) Regs, Sch 4, para 6(3)

C1146 Periods where residence was not in accordance with the regs « C1144 « C1145

A period during which the conditions in paragraphs C1144 or C1145 above were
satisfied will not be regarded (1) as a period of activity or residence completed in
accordance with the Imm (EEA) Regs where it was followed by a period of more
than two consecutive years throughout which
1. the person was absent from the UK or
2. the person's residence in the UK was not in accordance with paragraphs C1144or C1145 or
3. was not otherwise in accordance with the Imm (EEA) Regs.
1 Imm (EEA) Regs, Sch 4, para 6(4)

C1147 Effect of absence after right to permanent residence acquired

Once acquired on or after 30.4.06, the right of permanent residence is only lost by
absence from the host Member State for a period exceeding two consecutive years (1).
1 Directive 2004/38/EC, art 16(4)

C1148 Family Members who have retained the right to reside

Under certain circumstances a family member of an EEA national may retain the
right to reside on the death or departure from the UK of the EEA national (1). To retain
the right of residence the person must (2)
1. have been the family member of a qualified person (or an EEA national with a
permanent right to reside) when that person or EEA national died and
2. have resided in the UK in accordance with the Imm (EEA) Regs for at least
the year before the death of the qualified person (or the EEA national with a
permanent right to reside) and
3. satisfy the condition that either
3.1 although not an EEA national, they would, if they were one, be a
worker, self-employed person or self-sufficient person for the "qualified
person" provisions or
3.2 they are a family member of a person who falls within 3.1
In other situations where the claim is based on a family member's retained right of
residence cases should be submitted to DMA Leeds for guidance. This applies in
particular to cases where it relates to termination of the marriage or civil partnership
of the family member to the qualified person (3).
Note:
1
a "qualified person" in C1148.1 & 2 means a jobseeker, a worker, a self-
employed person, a self sufficient person or a student
Note: 2 family members can also acquire a permanent right to reside in some
circumstances where the EEA national has ceased activity or died (see C1100 and
C1105). Family members who have acquired a permanent right to reside by this
route are not subject to the rules described above (5).
1 Directive 2004/38/EC, Art 12; Imm (EEA) Regs, reg 10; 2 reg 10(2); 3 reg 10(3) & (4);
4 Directive 2004/38/EC, Art 13; Imm (EEA) Regs, reg 10(5); 5 reg 10(8)

C1149

Primary Carer - Child in education

C1150 Introduction

Certain children and their primary carers have a right to reside in the UK. This is
known as a derivative right to reside. The guidance below describes the conditions
for this right to reside. A primary carer satisfying those conditions satisfies the
requirement that they have a right to reside in the CTA. However they have to be
actually habitually resident in the CTA (see C1190 et seq).

C1151 Meaning of "exempt person"

In the paragraphs C1153 & C1154 below "exempt person" means (1) a person
1. who has a right to reside in the UK as a result of any provision in the Imm
(EEA) regs other than a derivative right to reside (2) or
2. who has a right of abode in the UK by virtue of specific legislation (3) (which
includes British citizens) or
3. to whom specific legislation (4) exempting certain persons from the requirement
to have leave to enter or remain applies (for example certain aircrew &
seamen who are under an engagement requiring them to leave within 7 days
and certain diplomats) or
4. who has indefinite leave to enter or remain in the UK.
1 Imm (EEA) Regs, reg 15A(6)(c); 2 reg 15A; 3 Immigration Act 1971, s 2; 4 s 8

C1152 Meaning of "primary carer" « C1153

A person is to be regarded (1) as the primary carer of another person ("the child") if
they are a direct relative or legal guardian of the child and
1. they have primary responsibility for the child's care or
2. they share equally the responsibility for the child's care with one other person
("the joint primary carer") provided that the joint primary carer is not an exempt person
Note
1
the term "direct relative" is not defined in the Imm (EEA) Regs but should be
taken as including direct relatives in the ascending line (i.e. parents, grand parents,
great grandparents) of the child, but not uncles, aunts, cousins etc.
Note
2 a person is not be regarded as having responsibility for a person's care on
the sole basis of a financial contribution towards that person's care (2).
1 Imm (EEA) Regs, reg 15A(7); 2 reg 15A(8)

C1153 Derivative Rights to Reside « C1151 « C1154 « C1155 « C1156 « C1157 « C1159 « C1160

A person who is not an exempt person has a derivative right to reside where (1)
Self sufficient child
1. that person (2) is the primary carer of an EEA national and that EEA national
1.1 is under the age of 18 and
1.2 is residing in the UK as a self-sufficient person and
1.3 would be unable to remain in the UK if the primary carer was required
to leave the UK
Note: The child must be self sufficient (see.C1127 et seq) The primary carer is
treated as a family member of the child (3) so the child and the primary carer must
have sufficient combined resources to ensure that the primary carer does not
become a burden on the social assistance system of the UK during their period of
residence. Equally both must have comprehensive health insurance cover.
Person in general education
2. that person (4)
2.1 is the child of an EEA national ("the EEA national parent") and
2.2 resided in the UK at a time when the EEA national parent was residing
in the UK as a worker (see paragraph C1156 below) and
2.3 is in general education (see paragraph C1155 below) in the UK and
was in education there at a time when the EEA national parent was in
the UK
Primary carer of a person in general education
3. that person is (5)
3.1 the primary carer (see C1152) of a person in general education in the
UK who satisfies the conditions in sub-paragraph 2. above and
3.2 that person in education would be unable to continue to be educated in
the UK if the primary carer were required to leave (but see C1154 for
how this rule applies where there are joint primary carers).
Dependant children of a primary carer
4. that person ("the child") is (6)
4.1 under the age of 18 and
4.2 the child's primary carer is entitled to a derivative right to reside as the
primary carer of a person in education (7) in accordance with sub-
paragraph 3 above and
4.3 the child does not have leave to enter, or remain in the UK and
4.4 requiring the child to leave the UK would prevent the child's primary
carer from residing in the UK.
1 Imm (EEA) Regs, reg 15A(1); 2 reg 15A(2); 3 reg 4(5); 4 reg 15A(3); 5 reg 15A(4); 6 reg 15A(5);
7 Reg (EEC) 1612/68, art 12; 1 Case C-310/08 Ibrahim v London Borough of Harrow and
Secretary of State for the Home Department; Case C-480/08 Teixeira v London Borough of Lambeth and
Secretary of State for the Home Department

Example

Lucia is a Spanish national. She entered the UK in July 2012 with her husband
Hugo, also a Spanish national. Hugo worked in the UK but Lucia did not. The couple
have a child, Alba born on 25.8.2003 who started primary school in the UK in
September 2012. Alba is a Spanish national. In March 2013 the couple separated
and Hugo returned to Spain. Lucia claimed UC in April 2013. The DM decided that
Lucia had a right to reside in the UK as Alba's primary carer in accordance with
C1153.3 above. It was evident that Alba would not be able to continue his general
education in the UK if his mother and sole carer had to leave the country.

C1154 Application to joint primary carers « C1151 « C1153

Where there are joint primary carers, the condition described in paragraph
C1153.3.2 is that the child would be unable to continue to be educated in the UK if
both joint primary carers were required to leave the UK (1). However this condition
does not apply if (2) one of the joint primary carers had acquired a derivative right to
reside as a sole primary carer before sharing responsibility for care with a joint
primary carer.
1 Imm (EEA) Regs, reg 15A (7A); 2 reg 15A (7B)

C1155 Meaning of "general education" « C1153

General education can include up to and including university or similar courses and
vocational courses, but the primary carer's right to reside set out in C1153.2,
generally ends when the child reaches the age of majority. This is 18 in the UK (1).
However it can continue beyond that age if the child continues to need the presence
and care of that parent in order to be able to complete their education (2). General
education does not include nursery education (3). It usually starts around age 5.
1 Family Law Reform Act 1969, s 1 Age of Majority (Scotland) Act 1969;
2 Teixeira v London Borough of Lambeth CJEU Case C-480/08 (para 87);
3 Imm (EEA) Regs, reg 15A(6)(a)

C1156 Meaning of "worker" « C1153

In
C1153.2.2 above a "worker" does not include (1) a jobseeker or a person who, on
stopping work retains worker status in the circumstances described in C1065. It also
does not include a self employed person (2).
Note: see C1061 to C1063 for guidance on when a person is a worker
1 Imm (EEA) Regs, reg 15A(6)(b); 2 Secretary of State for Work and Pensions v Lucja Czop (C-147/11) and

Margita Punakova (C-148/11)

C1157

Work carried out by a national of another Member State before that Member State
joined the EU cannot trigger a right under C1153 (1). Where an A8 or A2 national has
been employed in the UK on or after the date of accession, they may be a "worker"
for the purposes of a derivative right to reside if it is for an authorised employer, or
the migrant worker is otherwise exempt from the requirement to register or seek
authorisation. The A2/A8 national does not have to complete 12 months registered
or authorised work in order to be regarded as a worker for the purposes of the
derivative right to reside (2).

1 Reg (EEC) 1612/68, Art 12; 2 S of S for W & P v JS (IS) [2010] UKUT 347 (AAC)

C1158

An A8 national is working for an authorised employer in the first month of any
employment in the UK starting on or after 1.5.041, even if it is not subsequently
registered: but an A2 national must seek authorisation before starting employed
work in the UK (2). From 1.5.11 A8 nationals have full EU rights and do not need to
register any work.
1 Accession Regs 2004, reg 7(3); 2 Accession Regs 2006, reg 9(

C1159 Self-employed Parent

A derivative right to reside under C1153 can only can only apply where there is an
EEA national parent who resided in the UK as a "worker" i.e. those who are in
genuine and effective work that is more than marginal and ancillary and are under
the direction of another (see C1060 to C1062). It does not therefore apply to those
who are genuinely self-employed i.e. employed on their own account (1).
1 Secretary of State for Work and Pensions v Lucja Czop (C-147/11) and
Margita Punakova (C-148/11). at para 33

C1160 Derivative residence card

A derivative residence card is a card issued to a person as proof of the holder's
derivative right to reside as at the date of issue (1). The card can also take the form of
a stamp in the person's passport. The card or stamp will be valid for five years or
until a specified date and can be renewed upon application. However the card itself
does not confer a derivative right to reside which can only arise from satisfaction of
the conditions in C1153..
1 Imm (EEA) Regs, reg 18A

C1161 Persons to be treated as not "in GB"

The starting point is that a person is to be treated as not being in GB if he does not
have a right to reside (or is not habitually resident) in the CTA (1). However the
regulations go on to say that certain rights to reside described do not count (2). The
following paragraphs give details of those excluded rights to reside.
1 UC Regs, reg 9(1); 2 reg 9(2)

C1162 Initial Right of Residence under EU law

All EEA nationals and their family members have the right to reside in any other
Member State for a period of three months (1). .

1 Imm (EEA) Regs, reg 13

C1163

Persons who have a right to reside solely on the basis of the initial three month
residence right referred to above do not satisfy the right to reside requirement of the
habitual residence test and so are to be treated as not in GB (1) and therefore not
satisfying the basic conditions for entitlement to UC.
1 UC Regs, reg 9(3)(a)

C1164 Parents of EU citizen children

A person who is not an "exempt person" has a derivative right to reside in the UK if (1)
1. they are the primary carer of a British citizen and
2. that British citizen is residing in the UK and
3. that British citizen would be unable to reside in
3.1
the UK or
3.2
another EEA state or Switzerland
if the person was required to leave the UK..

1 Imm (EEA) Regs, reg 15A(1) & (4A)

C1165

A person who has a right to reside solely on the basis of paragraph C1173 above is
an excluded right to reside (1). Such a person will therefore not satisfy the right to
reside element of the habitual residence test, will be treated as not in GB and
therefore will not satisfy the basic conditions for entitlement to UC.
1 UC Regs, reg 9(3)(b)

C1166 EU Citizenship rights

EU case law has established the principle that in certain circumstances a third
country national may have a right to reside where to deny that right would mean that
an EU citizen would be deprived of their rights under as an EU citizen under the
Treaty (1) to move and reside freely within the territory of the EU. In the Zambrano
case 2 the basis of the CJEU's judgment was that, if Mr Zambrano (a third country
national) was not granted a right to reside and a work permit in Belgium, the result
would be that his dependent children, who were Belgian (and thus EU) citizens,
would be deprived of the genuine enjoyment of the substance of their rights as EU
citizens under article 20 of the Treaty (1).

1 TFEU, art 20; 2 Ruiz Zambrano v Office national de l'emploi (ONEm) Case C-34/0

C1167

A right to reside which exists in accordance with the Treaty (1) where that right to
reside arises because a British citizen would otherwise be deprived of the genuine
enjoyment of the substance of their rights as a European Citizen is an excluded right
to reside (2).

1 TFEU, art 20; 2 UC Regs, reg 9(3)(b)

C1168

So, a person claiming UC whose sole right to reside is the right described in
paragraph C1176 above will not satisfy the right to reside condition of the habitual
residence test. Such a person will therefore be treated as not being in GB and will
therefore not satisfy the basic conditions of entitlement to UC.
Croatian Nationals

C1169 Introduction

The Republic of Croatia became a member state of the EU on 1.7.131 Transitional
provisions in the Croatia Treaty (1) allow EU Member States to impose certain
restrictions on the rights to freedom of movement within the EEA (2), and allow EU
Member States to apply national measures restricting the access of Croatian
nationals to the UK's labour market for a limited period, initially for five years after
1.7.133 (i.e. until 30.6.18).
1 Act concerning the accession of the Republic of Croatia, Art 18 & Annex V;
2 TFEU Art 45 & Reg (EU) 492/11, Arts 1 to 6; 3 Act concerning the accession of the Republic of Croatia,
Art 18 & Annex V, section 2, para 2

C1170

The rights of EEA nationals (and in some circumstances their family members) to
reside in the UK are set out in the Imm (EEA) regs 06. The Croatia (I & WA) Regs
2013 limit those rights to reside and set out the measures restricting access to the
UK's labour market in the case of Croatian nationals.

C1171 The Two Groups « C1045

For the purposes of entitlement to UC, Croatian nationals will fall into two main groups
1. persons who are subject to worker authorisation and
2. those who are exempt from the requirement for worker authorisation

C1172 Croatian Nationals subject to worker authorisation « C1189

Unless they come within the exempt group described in C1178, all Croatian
nationals are "accession state nationals subject to worker authorisation"1. This
means that, in order to be able to work as employed persons in the UK, Croatian
nationals subject to worker authorisation have to apply to the Home Office for a
worker authorisation document giving details of the employer they wish to work for. A
worker authorisation document will only be issued where the Croatian national meets
the relevant requirements (1). Those requirements are set out in the "Statement of
relevant requirements", dated May 2013 and published by the Secretary of State for
the Home Department.
1 Croatia (I & WA) Regs, reg 2(1)

C1173 Worker authorisation document « C1165

The worker authorisation document will be either (1)
1. a passport or other travel document endorsed before 1.7.13 to show that the
holder has leave to enter or remain in the UK under the Immigration Act 1971,
subject to a condition restricting his employment in the UK to a particular
employer or category of employment or
2. a worker authorisation registration certificate issued in accordance with the
Croatia (I & WA) regs 2013 and endorsed with a condition restricting the
holder's employment to a particular employer and authorised category
employment.
1 Croatia (I & WA) Regs 2013, reg 8(2)

C1174 Exemption from the habitual residence test

With effect from 1.7.13, a Croatian national subject to worker authorisation will not
have to satisfy the habitual residence test for UC during any period when they (1)
1. 1.1 hold an accession worker authorisation document and
1.2 are working in accordance with the conditions set out in that document.
or
2. are a self-employed person in the UK (see paragraphs 12 and 22 to 25 below
for more about self-employment).
Note: nonetheless they will have to satisfy the other conditions of entitlement for UC
1 Croatia (I & WA Regs) 2013, reg 5(1) & UC Regs, reg 9(4)(a)

C1175 Self-employment stops

A Croatian national subject to worker authorisation will retain the status of being a
self-employed person and will remain exempt from the habitual residence test (1) if
they are temporarily unable to pursue activity as a self-employed person as a result
of illness or accident (2). However If self-employment ceases altogether (on which see C1072) a Croatian national subject to worker authorisation will not have a right to
reside as a jobseeker (see C1176.1 below).
1 UC Regs, reg 9(4)(a); 2 Imm (EEA) Regs, 06, reg 6(3)

C1176 Rights to Reside « C1168 « C1175

A Croatian national subject to worker authorisation does not have a right to reside
1. as a jobseeker (1)
2. as a person retaining worker status (1) (stated briefly, a person who ceases work
as an employed person temporarily because of illness or accident or a person
who is in duly recorded involuntary employment and registered at a relevant
employment office after working in the UK (see C1065).
1 Croatia (I &WA) Regs 2013, reg 5(1)

C1177 Self -sufficient persons and students « C1045 « C1189

Croatian nationals subject to worker authorisation do have a right to reside as
1. self- sufficient persons (1) (see C1127-9) or
2. students (2) (see C1130).
However these groups need to have sufficient resources not to become a burden on
UK social assistance (which includes UC) throughout their period of stay and they
must have comprehensive sickness insurance.
1 Imm (EEA) Regs 06, reg 6(1)(d); 2 reg 6(1)(e)

C1178 Croatian nationals who are not subject to worker authorisation « C1172 « C1179 « C1181 « C1183 « C1189

A Croatian national is not subject to worker authorisation if
1. on 30.6.13, they had leave to enter or remain in the UK under the Immigration
Act 1971 and their immigration status has no condition restricting employment
or if they are given leave of this type (including that their immigration status
has no condition restricting employment) after 30.6.131 or
2. they were legally working (See C1179 & C1180) in the UK on 30.6.13 and had
been legally working in the UK without interruption (see note) throughout the
period of 12 months ending on that date (2) or
3. they legally work (see C1179 & C 1180) in the UK without interruption (see
note) for a period of 12 months falling partly or wholly after 30.6.13, at the end
of that 12 month period (3) or
Note for sub-paragraphs 2 & 3: a person shall be treated (4) as having worked
without interruption for a period of 12 months provided they were legally working in
the UK at the beginning and end of the 12 month period and, if their work was
interrupted any intervening period(s) do not exceed 30 days in total.
4. they have dual nationality and are also a national of the UK or an EEA State
(other than Croatia)5, except that, where the person is also a Bulgarian or
Romanian national subject to worker authorisation in accordance with the
Accession Regs 2006 , they will only be exempt from worker authorisation as
a Croat, during any period when they are working in accordance with the
Accession regs 2006 or
5. during any period in which they are (6)
5.1 the spouse, civil partner, unmarried or same sex partner (see
paragraph 19) of or
5.2 a child under 18 of
a person who has been given leave to enter or remain in the UK under the
Immigration Act 1971 where that leave allows that person to work
6. during any period when they are (7) the spouse, civil partner, unmarried or same
sex partner (see paragraph 19) of a national of the UK or a person settled in
the UK (as defined in specific legislation (8).
7. during any period when they are (9) a member of a diplomatic mission (or a
family member of a member of a diplomatic mission) as defined in specific
legislation (10) and other persons who are not British citizens specified in an
order of the Secretary of State for the Home Department (11) exempting them
from any or all of the provisions of the Immigration Act 1971.
8. they have a permanent right to reside in the UK under the Imm (EEA) Regs (12).
9. Except where sub-paragraph 10 applies, during any period when they are a
family member of an EEA national who has a right to reside in the UK (13).
10. Where the EEA national with a right to reside in the UK referred to in sub-
paragraph 9 is a Croatian national subject to worker authorisation or a
Bulgarian or Romanian national subject to worker authorisation (referred to
below as "Y") then only the following family members are not subject to worker
authorisation (14)
10.1 Y's spouse or civil partner or
10.2 an unmarried or same sex partner of Y (see paragraph 19) or
10.3 a direct descendent of Y or Y's spouse or civil partner who is
10.3.a under 21 or
10.3.b dependent on Y, Y's spouse or Y's civil partner
11. they are highly skilled as defined (15) and hold a registration certificate from the
HO that includes a statement that they have unconditional access to the UK
labour market (15)
12. during any period when they are a student in the UK and either
12.1 they hold a registration certificate which states that they are a student
who may work in the UK for not more than 20 hours per week (except
where they are working, as part of a course of vocational training or
during vacations) and provided they comply with those work
conditions (16) or
12.2 they have leave to enter or remain under the Immigration Act 1971 as a
student provided they are working in accordance with any conditions
attached to that leave (17)
13. during the 4 months starting from the end of the course where they are a
former student who holds a registration certificate (issued before they
completed their course) saying that they may work during that period (18).
14. they are a posted worker (19) as defined in specific EU legislation (20), being a
person posted to the UK by an employer based in another EEA state in
pursuance of a contract to provide services in the UK.
1 Croatia (I & WA) Regs 2013, reg 2(2); 2 reg 2(3); 3 reg 2(4); 4 reg 2(5)(c); 5 reg 2(6) & (7);
6 reg 2(8); 7 reg 2(9); 8 Immigration Act 71, s 33(2A); 9 Croatia (I & WA) Regs 2013, reg 2(10) & (11);
10 Immigration Act 71, s 8(3); 11 s 8(2); 12 Croatia (I & WA) Regs 2013, reg 2(12); 13 reg 2(13);
14 reg 2(14); 15 reg 2(15); 16 reg 2(16)(a) & (17); 17 reg 2 (16) (b); 18 reg 2(18); 19 reg 2(19);
20 Reg 2(20) & Directive 96/71/EC, Art 1(3)
Meaning of legally working

C1179 Periods before 1.7.13 « C1178 « C1178

For the purposes of C1178. 2 &.3, a Croatian national working in the UK during a
period falling before 1.7.13, was working legally in the UK during that period
1. 1.2 they had leave to enter or remain in the UK under the Immigration Act
1971 for that period and
1.2 that leave allowed them to work in the UK and
1.3 were working in accordance with any condition on that leave restricting
their employment or
2. they were exempt from the provisions of the Immigration Act 1971 in
accordance with specific legislation or
3. they were entitled to reside in the UK under the Imm (EEA) Regs.
1 Croatia (I & WA) Regs 2013, reg 2(5)(a)

C1180 Periods on or after 1.7.13 « C1178

For the purposes of paragraph 15.3, a Croatian national was legally working in the
UK on or after 1.7.13 during any period in which
1. they are exempt from worker authorisation because they fall within one of
paragraphs 15.4 to 15.13 above or
2. hold an accession worker authorisation document (see paragraph 12 above).
1 Accession (Croatia I & WA) Regs 2013, reg 2(5)(b)

C1181 Meaning of "family member" « C1188

For the purposes of C1178 above a Croatian national's family members are (1)
(subject to the special rules about the family members of students described in
C1131)
1. their spouse or civil partner and
2. their direct descendents or the direct descendents of their spouse or civil
partner who are
2.1 under the age of 21 or
2.2 their dependants or dependants of their spouse or civil partner and
3. their direct ascendant relatives or the direct ascendant relatives of their
spouse or civil partner and
4. extended family members as described in C1132-3.
Note: see C1188 to C1190 for more on family members
1 Accession (Croatian I & WA) Regs 2013, reg 1(2)(a) & Imm (EEA) Regs 06, reg 7

C1182 Meaning of "unmarried or same sex partner"

An "unmarried or same sex partner" means a person who is in a durable relationship
with another person (1). If a DM has doubts about whether this is the case, a view
should be sought from the Home Office in the first instance.
1 Croatia (I &W) Regs 2013, reg 1(2)

C1183 Right to Reside

For as long as they continue to satisfy one of the conditions for exemption in C1178
above, Croatian nationals who are not subject to worker authorisation have the
same rights to reside as a non -accession EEA national such as a French or
German national.

C1184 Self-employment

Transitional provisions in the Treaty of Accession do not allow limitation of the
principle of freedom of movement for self-employed persons within the EEA. This
means that, from 1.7.13, all Croatian nationals regardless of whether or not they are
subject to worker authorisation have a right to reside as a "qualified person" when
they are working as a self-employed person in the UK (1).

1 Imm (EEA) Regs, 06, Art 14 & Art 6(1)(c)

C1185 « C1186

Any Croatian national who is a self-employed person in the UK will retain that status
and a right to reside if he is temporarily unable to pursue his activity as a self-
employed person as the result of an illness or accident (1).

1 Imm (EEA) Regs 06, Art 6(3)

C1186

With effect from 1.7.13, a Croatian national who is self employed in the UK or who
retains that status in accordance with C1185 is exempt from the habitual residence
test for the purposes of UC (1).
1 UC Regs, reg 9(4)(a)
Note: DMs are reminded that work as a self employed person must be genuine and
effective (see C1062-3). In addition DMs may need to establish whether at any
particular moment in time a claimant is a self-employed person (on which see C1072).

C1187 Family members

In general the family members of an EEA national with a right to reside in the UK,
also have a right to reside derived from and linked to the EEA national's right to
reside (1).

1 Imm (EEA) Regs, reg 14(2)

C1188 « C1181

Where a Croatian national not subject to worker authorisation has a right to reside in
the UK then C's family members (as defined in C1181) are not subject to worker
authorisation and have the same rights to reside as the family members of any other
EEA national.

C1189

However where a Croatian national is subject to worker authorisation then only
1. their spouse, civil partner, unmarried or same sex partner (hereafter
"partner") and
2. their (or their partner's)
2.1 children or
2.2 grandchildren
who are aged under 21 or dependant
escape the requirement for worker authorisation (see paragraph C1178.10). A
Croatian national's Croatian father, father in law, mother, mother in law or
grandparents will have a right to reside as family members of an EEA national.
However in their own right they will only have the limited rights to reside of any
Croatian national subject to worker authorisation (see C1172 to C1177) (i.e. as an
authorised worker, a self-employed or self sufficient person or a student). In other
words they have a right to reside in the UK but their access to work and the labour
market here is limited..

C1190 Meaning of "Habitual Residence" « C1120 « C1150 « C1181

There is no definition of "habitual residence" in UK domestic or EU law. However the
meaning of this phrase has been discussed in case law. Although broadly similar
there are some differences between the meaning of habitual residence in UK
domestic law and the meaning that has developed in EU law.

C1191

Where EU applies the EU law meaning will take precedence, but if EU law does not
apply the meaning developed in domestic law should be applied. EU law will apply if
the person concerned has exercised their right (1) to move and reside freely in the
territory of the Member States.
1 TFEU, Art 21

[C1192-C1194]

Meaning in UK law

C1195 Requirement to establish a residence that is habitual in nature

To be habitually resident in a country a person must have actually taken up
residence and lived there for a period. It is not sufficient that the person came to this
country voluntarily and for settled purposes. He must be resident in fact for an
appropriate period of time which demonstrates that his residence has become, and
is likely to remain, habitual in nature (1).
1 House of Lords, Nessa v CAO (1999) IWLR 1937 HL

C1196 Settled intention to remain

The period of time cannot begin before the person is both living in the UK, and has a
settled intention to remain in the UK for the time being. The person does not have to
intend to remain permanently.

C1197 Relevant factors

Whether and when a person's residence has become habitual in nature is a
question of fact. The period is not fixed and depends on the facts of each case.
Amongst the relevant factors to be taken into account are bringing possessions so
far as is practicable, doing everything necessary to establish residence before
coming, having a right of abode, seeking to bring family, and having durable ties with
the country of residence or intended residence (1). The list is not exhaustive and any
facts which may indicate whether or not the residence is habitual in nature should be
taken into account.

1 House of Lords, Nessa v CAO (1999) I WLR 1937 HL

C1198

Only the appropriate weight should be given to factors wholly or partly outside the
person's control. The person may have close relatives, even immediate family,
outside the UK. There may be an intention that family members will join the person
here when permission to do so can be obtained. The person may, quite reasonably,
visit them regularly. That need not indicate that the person himself does not have a
settled intention to remain in the UK, or that he cannot be habitually resident here.
Cultural differences in the nature of contact between family members should be
respected.

C1199

It is not necessary to have permanent or private accommodation to establish
habitual residence. A person may be resident in a country whilst having a series of
temporary abodes.

C1200

A person's financial viability may be a relevant factor, but the test for habitual
residence should not be applied so as to prevent access to public funds. It must be
applied in a way that allows for the possibility of a claimant establishing both habitual
residence and an entitlement to benefits (1).
1 House of Lords, Nessa v CAO (1999) 1 WLR 1937 HL

C1201 Appropriate period of time

The appropriate period of time need not be lengthy if the facts indicate that a
person's residence has become habitual in nature at an early stage (1). In some
circumstances the period can be as little as a month, but it must be a period which is
more than momentary in a claimant's life history (2). A period of between one and three
months is likely to be appropriate to demonstrate that a person's residence is
habitual in nature. Cogent reasons should be given where a period longer than three
months is considered necessary (3).
1 House of Lords, Nessa v CAO (1999) 1 WLR 1937 HL; 2 CIS/4389/99; 3 CIS/4474/03

C1202 Becoming habitually resident

The nature of a person's residence should be considered throughout the period in
question, to establish whether or when it became habitual. The fact that a person's
residence has become habitual in nature after a period of time does not mean that
the residence was habitual in nature from the outset. Residence only changes its
quality at the point at which it becomes habitual.

C1203 Resuming a previous habitual residence

There may be special cases where a person who has previously been habitually
resident in the UK resumes that habitual residence immediately when he returns to
the UK following a period living abroad (1). The only element of habitual residence that
is bypassed by a returning former resident is the need to be resident in the UK for an
appreciable period.

1 House of Lords, Nessa v CAO (1999) 1 WLR 1937 HL

C1204 « C1205

Factors to be considered in deciding whether the previous habitual residence has
been immediately resumed include (1)
1. the settled intention to remain,
2. whether the person is in a position to make an informed decision about
residence in the UK,
3. the ties and contacts with the UK retained or established by the person while
abroad,
4. the reasons why the claimant left the UK and became habitually resident
elsewhere,
5. the similarity between their residence in the UK now and when they were
previously here, and
6. the length of the period of absence (2).
Note:
this is a different situation to that where a person is temporarily absent from
the UK and does not lose their habitual residence during that period of absence.
1 House of Lords, Nessa v CAO (1999) 1WLR 1937 HL; 2 CIS/1304/1997 and CJSA/5394/1998

C1205 Meaning in EU Law

When deciding whether a person is habitually resident for EU law DMs should
consider whether a person is resuming a previous habitual residence before taking
into account other factors in paragraph C1204 below.

C1206 Resuming previous residence

A person with habitual residence in the CTA who exercised his right to freedom of
movement under European law and then returns to resume his residence in the CTA
may be habitually resident immediately on his return (1).

1 Case C-90/97, Swaddling v CAO (1999) All ER (EC) 217

C1207

A UC claimant who
1. was previously habitually resident in the CTA and
2. moved to live in another Member State and
3. returns to resume the previous habitual residence
is habitually resident immediately on arrival in the CTA.

C1208

In deciding whether the claimant is resuming previous residence the DM should take
account of the length and continuity of the previous residence in the CTA and
whether the claimant has maintained sufficient links with the previous residence to
be said to be resuming it rather than commencing a new period of residence.

Example

The claimant, a UK national, lived and worked in UK before moving to Germany
where he worked for several years. He was made redundant and having failed to
find work in Germany for three months he returned to the UK where he had family
and friends. On claiming UC he stated that his intention was to find work and remain
permanently in the UK. UC was awarded because he was resuming a previous
habitual residence

C1209 Factors to take into account

When deciding where a person is habitually resident for EU law, the DM should take
into account the
1. person's main centre of interest (1)
2. length and continuity of residence in a particular country
3. length and purpose of the absence from that country and
4. intention of the claimant.
Note: This is not an exhaustive or conclusive list. There may be other factors that
are important in deciding whether a person is habitually resident in an individual
case.
1 Case 76/76 Di Paolo; R(U)7/85; R(U)8/88

C1210 Centre of interest

People who maintain their centre of interest in the UK, for example a home, a job,
friends, membership of clubs, are likely to be habitually resident in the UK. People
who have retained their centre of interest in another country and have no particular
ties here are unlikely to be habitually resident in the UK.

C1211 Length and continuity of residence

A person who has a home or close family in another country would normally retain
habitual residence in that country. A person who has previously lived in several
different countries but has now moved permanently to the UK may be habitually
resident here.

C1212 Length and purpose of absence

Where a person spends time away from the UK, the DM should consider the
frequency, length and purpose of the absences and decide whether habitual
residence in the UK has been lost. If a person who is working abroad returns
frequently, for example to visit family or because a home has been retained here, it
is likely that habitual residence in the UK has not been lost. Infrequent visits or the
purchase of a home abroad may point to the opposite.

C1213 Employment

The claimant's employment record and in particular the nature of any previous
occupation and plans for the future are relevant. A person with the offer of genuine
and effective work in the UK, whether full time or part time is likely to be habitually
resident here.

C1214 Intentions

The fact that a person may intend to live in the UK for the foreseeable future does
not, of itself, mean that habitual residence has been established. However, the
claimant's intentions along with other factors, for example the purchase of a home in
the UK and the disposal of property abroad may indicate that the claimant is
habitually resident in the UK.

C1215

A claimant who intends to reside in the UK for only a short period, for example on
holiday, to visit friends or for medical treatment, is unlikely to be habitually resident in
the UK.

C1216

Workseekers do not come within the scope of the Regulations and Directives (1) which
define `workers' for the purpose of deeming the satisfaction of the habitual residence
test and EEA nationals who are seeking work in the UK may be subject to the test if
they have no established link with the UK employment market (2).
1 Regulation 1612/68; Directive 2004/38/EC; 2 Case C-138/02 Collins v Secretary of State for

Work and Pensions.

C1217

However citizens of the EU are entitled not to be discriminated against whether or
not they come within the scope of the regulations and Directives which apply to
`workers'1. In a judgment of the ECJ (2) it was held that although the habitual residence
test discriminated against work seekers, because it could be satisfied more easily by
UK nationals than by nationals of other Member States, that discrimination was not
unlawful if it could be justified on the basis of objective criteria independent of
nationality. The test had to be proportionate to the legitimate aim of ensuring that
there is a genuine link between a claimant and the geographic employment market
in question. When this case returned to the domestic courts the Court of Appeal
concluded that the habitual residence test was not incompatible with EU law (3).
1 TFEU, Arts 18 & 20; Case C-184/99 (Grzelczyk); 2 Case C-138/02 (Collins)

3 Collins v SSWP [2006] EWCA Civ 376

C1218

The period required for the Secretary of State to be satisfied that there is a genuine
link with the UK employment market is not defined and must be considered in the
light of the circumstances. However it should be long enough to demonstrate the
sustained nature and relevance of the search. The Commissioner has held (1) that the
period was not sufficient in a case where the claimant
· had not previously worked in any Member State other than temporary work in
the UK 17 years previously
· had not made any real enquiries about work before arriving in the country
· had not made any arrangements for accommodation and was staying with a friend
· was single with no dependents
· had close family and a bank account in the USA
· had a return ticket to the USA (although that was bought because it was cheaper
than a single)
· had been looking for work for no more than a month.
The Commissioner further expressed the opinion that, in the circumstances, a
further month of residence and work search would not be enough even though at the
end of that time the claimant found work that was full time but not in the sector in
which he was particularly interested.

1 R(JSA)3/06, para 50

[C1219]

C1220 Absences from GB

The Act allows (1) regulations to be made specifying circumstances in which
1. a person is or is not to be treated as in GB
2. a temporary absence from GB is to be disregarded.
1 WRA 12, s 4(5)

[C1221-C1229]

Temporary Absences

C1230 One Month « C1231

For the purposes of deciding whether a person is "in GB" a temporary absence is
disregarded provided that (1)
1. the person was entitled to UC immediately before the temporary absence
started and
2. the absence (2)
2.1 is not expected to exceed and
2.2
does not exceed one month. 1 UC Regs, reg 11(1); 2 reg 11(1)(b)(i)

C1231 Extension to One Month disregard

Where the temporary absence is
1. in connection with the death of
1.1 a partner, or
1.2 a child or qualifying young person (1) for whom the person is responsible
or
1.3 a close relative of the person, his partner or a child or qualifying young
person 1 for whom the person or their partner is responsible and
2. the Secretary of State considers that it would be unreasonable to expect the
person concerned to return to GB within the first month
the one month disregard described in paragraph C1230 may be extended by
up to one further month (2).
Note: for guidance on the meaning of qualifying young person see Chapter
1 UC Regs, reg 2(1) & 5; 2 reg 11(2)

C1232 Six Months - Medical treatment

In deciding whether a claimant satisfies the basic condition that they be "in GB", a
temporary absence which is not expected to exceed and does not exceed 6 months
is disregarded where the absence was solely in connection with
1. the claimant undergoing (1)
1.1 treatment for an illness or physical or mental impairment by, or under
the supervision of, a qualified practitioner or
1.2 medically approved (see note below) convalescence or care as a result
of treatment for an illness or physical or mental impairment, provided
that the claimant had that illness or disability before leaving GB or
2. the claimant accompanying their partner, or a child or QYP for whom they are
responsible where that partner, child or QYP is undergoing (2)
2.1 treatment for an illness or physical or mental impairment by or under
the supervision of a qualified practitioner or
2.2 medically approved (see note below) convalescence or care as a result
of treatment for an illness or physical or mental impairment provided the
partner, child or QYP had that illness or disability before leaving GB.
Note: "medically approved" means (3) certified by a medical practitioner
1 UC Regs, reg 11(3)(a); 2 reg 11(3)(b); 3 reg 11(5)

C1233 Meaning of "qualified practitioner"

"qualified practitioner" means (1) a person qualified to provide medical treatment,
physiotherapy or a form of treatment that is similar to, or related to, either of those
forms of treatment.
1 UC Regs, reg 11(5)

C1234 Meaning of "partner"

A partner means (1) the other member of a couple. "couple" is defined in the Act (2) as meaning
1. a man and woman who are married to each other and are members of the
same household;
2. a man and woman who are not married to each other but are living together
as husband and wife;
3. two people of the same sex who are civil partners of each other and are
members of the same household;
4. two people of the same sex who are not civil partners of each other but are
living together as civil partners.
Note: For the purposes of this definition, two people of the same sex are to be
treated as living together as if they were civil partners if, and only if, they would be
treated as living together as husband and wife were they of opposite sexes.
1 UC Regs, reg 2(1); 2 WRA 1, s 39

C1235 Six Months - Mariners & Continental Shelf Workers

In deciding whether a claimant satisfies the basic condition that they be "in GB", a
temporary absence is disregarded if it is not expected to exceed, and does not
actually exceed, 6 months and the claimant is (1)
1. a mariner or
2. a continental shelf worker who is in a designated area or a prescribed area
1 UC Regs, reg 11(4)

C1236 Meaning of "mariner"

A "mariner" means (1) a person who is in employment under a contract of service as a
1. master or member of the crew of any ship or vessel or
2. in any other capacity on board any ship or vessel provided that the
employment in that capacity is for the purposes of that ship or vessel or her
crew or any passengers, cargo or mails carried by the ship or vessel
provided the contract of service is entered into in the UK with a view to its
performance while the ship or vessel is on her voyage.
1 UC Regs, reg 1 (5)

C1237 Meaning of "continental shelf worker"

A continental shelf worker means (1) a person who is employed (whether under a
contract of service or not) in a designated area or a prescribed area in connection
with any activity mentioned in specific legislation (2) (stated briefly activities connected
with the exploration or exploitation of natural resources on the shore or on the sea
bed).

1 UC Regs, reg 11(5); 2 Petroleum Act 1998, s 11(2)

C1238

Designated area means (1) any area designated by Order in Council under specific
legislation (2) as an area where the UK's rights with respect to the seabed and subsoil
and their natural resources can be exercised.

1 UC Regs, reg 11(5); 2 Continental Shelf Act 1964

C1239

Prescribed area means (1) any area over which Norway or any EU country* (except the
UK) exercises sovereign rights to explore the seabed and subsoil and exploit their
natural resources. This area must be outside the territorial water of
1. Norway or
2. any EU country (except the UK) or
3. any other area specified under specific legislation (2).
1 UC Regs, reg 11(5); 2 Petroleum Act 1998, s 10(8)