Benefits available on entering UK

hazeleyes

Hi,
my son (now aged 31) was born in and lived in the UK until 2006 when he moved to the USA to take up employment there. He had worked full time in the UK for the 4 previous years, after leaving University. He has now been made redundant from his US job and it is increasingly likely that he will have to return to the UK as he is still awaiting his Green Card in the US and without that he cannot apply for a new job there. He retains his British citizenship.

Can anyone tell me please what benefits he would be entitled to claim if he did return to the UK and is there a waiting period before which he could make a claim? During any such waiting period, if he had no income or savings, what help could he get from the state? Many thanks.

Tulip09

If anything he would only get JSA (obviously not contributions based) but i think he would have to take a habitual residence test? (There is plenty of case law on this if i remember correctly) Basically it comes down to how long they deam he should have been in the country before applying.

NASA_2

He will have to satisfy the Habitual Residence Test upon his return if he is to claim an Income Related benefit. There is no one factor that will decide if he satisfies this. Have a read at what I have quoted below but also read the link and see what you think.

I'm not aware of a reciprocal agreement between the UK and US so I dont think he will be able to get Contribution based benefits.

Requirement to establish a residence that is habitual in
nature

071340 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 nature1.

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

Settled intention to remain

071341 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.

Relevant factors

071342 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 residence1. 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) IWLR 1937 HL

071343 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.
071344 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.
071345 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
Actual habitual residence 071346 071348
Vol 2 Amendment 14 June 2007
applied in a way that allows for the possibility of a claimant establishing both
habitual residence and an entitlement to benefits1.

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

Appropriate period of time

071346 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 stage1. 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 history2. 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 necessary3.

1 House of Lords, Nessa v CAO (1999) 1 WLR 1937 HL; 2 CIS/4389/99; 3 CIS/4474/03

Becoming habitually resident

071347 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.

Resuming a previous habitual residence

071348 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 abroad1. 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. Factors to be considered in deciding whether the previous
habitual residence has been immediately resumed include the settled intention to
remain, whether the person is in a position to make an informed decision about
residence in the UK, the ties and contacts with the UK retained or established by the
person while abroad, the reasons why the claimant left the UK and became
habitually resident elsewhere, the similarity between their residence in the UK now
and when they were previously here, and the length of the period of absence2. 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

http://www.dwp.gov.uk/docs/dmgch0703.pdf