Habitual Residence Test (Hansard, 25 June 1997)

§ The Parliamentary Under-Secretary of State, Department of Social Security (Baroness Hollis of Heigham)
My Lords, we are committed to a wide-ranging review of social security. The habitual residence test will form a part of that work.

§ Earl Russell
My Lords, I thank the Minister for that welcome crumb. Will the noble Baroness accept two propositions? First, it is unjust and unfair that British subjects who have been away from this country for a long time—married, caring for a sick relative, or engaged in public service—should be destitute when they return. Secondly, under Articles 6 and 7 of the Treaty of Rome we cannot discriminate between the nationals of different EU countries. If the noble Baroness accepts both those propositions, can she see any reason why the test should continue?

§ Baroness Hollis of Heigham
My Lords, we are well aware of the concerns that the noble Earl expressed about the habitual residence test. However, before we determine what we should do we need to understand the effects of the habitual residence test.
1576 On examining the issue, I was surprised how little we know. In two thirds of the cases, the impact of a test that was announced at the Conservative Party conference to stop foreign tourists having benefit holidays has been on British citizens. Half of those who failed the test have been British citizens. We do not know why people failed the habitual residence test. We do not know what happened to them. We do not know whether applicants appealed, and whether their appeals were successful. We do not know whether they reapplied, and whether that was successful. We do not know whether they stayed or went. We do not know whether applicants were subsequently eligible for benefits. Perhaps the House will appreciate exactly why we need the review that we are determined to have.

§ Lord Rotherwick
My Lords, is the Minister able to tell us how long the review will take bearing in mind that there are legitimate claimants? The longer the review continues the more uncertainty there will be in their minds. Can the noble Baroness tell us how long she thinks the review will continue?

§ Baroness Hollis of Heigham
My Lords, I cannot give the noble Lord the reply he would like because the answer is that I do not know. The review will take long enough for us to be able to track the effect of this test in place. As I said, the previous Administration were not interested in determining the effect. We have to start the statistics from scratch.
I, too, share the noble Lord's concerns, as I am sure the noble Earl does, about the uncertainty facing people coming back to this country. To put the matter into perspective, someone who fails the habitual residence test can nonetheless return to this country, take up residence, acquire a job, build up contributory rights and may be able to establish habitual residence within a period which may be as little as one day or two or three months.

§ Lord Beaumont of Whitley
My Lords, will the Minister please tell us what will be done while the review takes place about the increasing number of people released from prison abroad returning to this country, who are often mentally disturbed and who have no means of subsistence?

§ Baroness Hollis of Heigham
My Lords, I am sure the whole House shares the concerns that the noble Lord raises: that prisoners could be deported to this country, destitute and perhaps disturbed, who will be tempted to reoffend. That is something none of us would wish. We have asked Prisoners Abroad to investigate all such situations and to report to us as speedily as possible. I have also checked and find that such deported former prisoners could go to the local authority. Under the National Assistance Act 1948 the local authority has a residual responsibility which it may so determine.
It is worth reminding ourselves that within a short period of time one can establish habitual residence. I hope that that will be the case for such people.

§ Baroness Anelay of St. Johns
My Lords, over the past couple of months the Government have made much 1577 of their commitment to eradicate welfare dependency, a commitment long held by Members on these Benches. Will the noble Baroness the Minister agree with me that, in order to turn fine words into real policy, in their review the Government will have to endorse the principles underlying the habitual residence test: that those of us who plan to work abroad, or to travel abroad for an extended period perhaps to visit family or friends, must also take some personal responsibility for our actions? We should take into account that other countries do not necessarily have the generous out of work benefits available to us in this country. Those making such plans should take steps to insure themselves against sickness or unemployment rather than coming back to this country on a train or plane simply to claim benefit when they no longer consider this country their real centre of interest.

§ Baroness Hollis of Heigham
My Lords, first, I welcome the noble Baroness, Lady Anelay, to the Front Bench. We are delighted to hear from her.
The substance of her question is why we shall have the review. When the habitual residence test was introduced, the country understood that it was to prevent foreign nationals having tourist holidays at the British taxpayers' expense. That was the belief. In fact, two thirds of the people affected by the test are British citizens; and half of those who fail are British citizens who may have no home other than this country and may well have been abroad for legitimate cause. It is because of those concerns that we need the review that we have promised to undertake.

§ Lord Parry
My Lords, I wonder whether the majority of Members in the House are as impressed as I have been with the quality of the research carried out by a young and new Front Bench, and by the sensible policies that the new Government have so quickly put into operation.

§ Baroness Hollis of Heigham
My Lords, my noble friend will no doubt be surprised to hear that I am gratified by his comments.

§ Earl Russell
My Lords, last week, after I tabled this Question, I received a letter from the niece of my late friend Lord Byers, our former leader in this House, who, as the noble Baroness may remember, went to Brussels to care for a sick mother and will be turned away under the habitual residence test when she returns.
Would the Minister like to speculate as to how the words of the noble Baroness, Lady Anelay, whom I join in welcoming to the Front Bench, will appear to her when she reads them? Will the Minister tell me what I can reply to my correspondent when she asks: can she hope to return to this country before her children have emerged from the French school system? Or is she stuck there for ever?

§ Baroness Hollis of Heigham
My Lords, perhaps I may respond to the noble Earl by referring to a previous answer. The person to whom he refers may certainly return to this country, establish residence, seek 1578 and acquire work and build up contributory benefits, and, I hope, will speedily apply for habitual residence. If she is able to satisfy the adjudication officer that she has a settled intention to remain here, she should then be eligible for income-related benefits within a matter of days, weeks, or at most a couple of months.