This piece first appeared in The Daily Telegraph on 5 June 1999
The text here may not be identical to the published text

British ex-patriates who left Britain as adults and return to the UK should no longer be automatically refused social security benefits under the so-called 'habitual residence test' introduced in 1994 by the Conservative government. New guidance issued recently to Benefits Agency offices makes it clear that people who have lived in the UK in the past will automatically be considered to be habitually resident here and avoid automatic exclusion from claiming social security benefits.

Since the controversial test was introduced in 1994, around 18,000 people a year failed it and were unable to claim any help from the state saving an estimated £18 million a year. The test was the brainchild of Peter Lilley, social security Secretary in the previous Conservative administration. He claimed that young people, whom he called 'benefit tourists', were coming to the UK from Europe, pretending to look for work and getting a weekly income from the Benefits Agency and help with their housing costs. But official figures - and estimates by welfare rights workers - suggested that around three-quarters of all the people who had their benefit claims blocked were British citizens, returning to this country after falling on hard times abroad. Even after a short stay outside Britain they could be denied help with their income or housing costs on the grounds that they were not 'habitually resident' here.

Shortly after the election in 1997, the new Government promised to review the test. But since then it has defended the law in the courts. The recent change in the guidance follows a defeat for the Government in the European Court of Justice at the end of February. Robin Swaddling, a 38-year-old man who had worked in France and Italy since his early twenties, lost his job and returned to his native Wales. While looking for work he claimed income support and help with his housing costs. But he was denied any help from the state on the grounds that he was not habitually resident in the UK. After a lengthy legal battle, the European Court of Justice ruled that a person who had lived in one European country and then moved to another to work and subsequently returned to the first country, was habitually resident there at once. It took some weeks for the Government to alert staff in the Benefits Agency to the ruling. But now it has issued a circular stating that anyone who was habitually resident here before they left and then subsequently returns is counted as habitually resident at once and can claim help from the Benefits Agency.

The rule affects only claims for the means-tested benefits - income support which gives a single adult a basic subsistence income of around £50 a week - and help with rent and council tax. Of course, many people will not be entitled to claim for other reasons. And although this change of heart will help most ex-patriates it could exclude people who left Britain as children. Beth Lakhani is a welfare rights officer with the Child Poverty Action Group.

"The circular says that they must have sufficient links with their previous residence and pick up the pieces of their old life. The department has told me that a child may not be able to pick the threads as an adult. So it could cause problems for people who have the right to be here but have not lived here for long as a child or at all. The confusion shows it should simply be abolished for everyone who is British or European national or who has the right to live here."

David Thomas, the solicitor who represented Robin Swaddling, agrees

"The habitual residence test is inherently vague and unfair. Following the European Court of Justice decision in Mr. Swaddling's case, the Government has accepted that people who have lived here can be habitually resident immediately on their return and therefore get subsistence benefits. It is difficult to see how the phrase 'habitually resident' can mean something different for people with the right to live here. If this is their home people should have the right to basic benefits."

However, the Government seems to backing off scrapping the rule. Speaking in the House of Commons in February, social security minister Angela Eagle said that the Government would "...continue to investigate how best we can balance the right of the UK taxpayers not to subsidise people with very little connection to the UK with the understandable rights of UK citizens."

The review is being held up while the House of Lords considers its judgement in another case concerning a Bangladeshi woman, Joybun Nessa. She has the right to live in Britain, though she had never done so before arriving in 1997. She was denied any social security benefits on the grounds that she was not habitually resident. The Department of Social Security argued that a habit by its nature takes some time to establish. Though that seems to go against what the European Court said in Mr Swaddling's case. The decision is expected before the summer law vacation. And it may not be until then that the rights of ex-patriates and their children will finally be settled.

5 June 1999

>

>

> >

e-mail Paul Lewis on paul@paullewis.co.uk

>

>

>