9.—(1) For the purposes of determining whether a person meets the basic condition to be in Northern Ireland, except where a person falls within paragraph (4), a person is to be treated as not being in Northern Ireland if the person is not habitually resident in the United Kingdom, the Channel Islands, the Isle of Man or the Republic of Ireland.
(2) A person must not be treated as habitually resident in the United Kingdom, the Channel Islands, the Isle of Man or the Republic of Ireland unless the person has a right to reside in one of those places.
(3) For the purposes of paragraph (2), a right to reside does not include a right which exists by virtue of, or in accordance with—
(a)regulation 13 of the EEA Regulations or Article 6 of Council Directive No. 2004/38/EC M1,
(b)regulation 14 of the EEA Regulations M2, but only in cases where the right exists under that regulation because the person is—
(i)a qualified person for the purposes of regulation 6(1) of those Regulations as a jobseeker, or
(ii)a family member (within the meaning of regulation 7 of those Regulations) of such a jobseeker, or
(c)regulation 15A(1) of the EEA Regulations M3, but only in cases where the right exists under that regulation because the claimant satisfies the criteria in regulation 15A(4A) of those Regulations or Article 20 of the Treaty on the Functioning of the European Union (in a case where the right to reside arises because a British citizen would otherwise be deprived of the genuine enjoyment of their rights as a European citizen).
(4) A person falls within this paragraph if the person is—
(a)a qualified person for the purposes of regulation 6 of the EEA Regulations as a worker or a self-employed person,
(b)a family member of a person referred to in sub-paragraph (a) within the meaning of regulation 7(1)(a), (b) or (c) of the EEA Regulations,
(c)a person who has a right to reside permanently in the United Kingdom by virtue of regulation 15(1)(c), (d) or (e) of the EEA Regulations,
(d)a refugee within the definition in Article 1 of the Convention relating to the Status of Refugees done at Geneva on 28th July 1951 M4, as extended by Article 1(2) of the Protocol relating to the Status of Refugees done at New York on 31st January 1967 M5,
(e)a person who has been granted, or who is deemed to have been granted, leave outside the rules made under section 3(2) of the Immigration Act 1971 M6 where that leave is—
(i)discretionary leave to enter or remain in the United Kingdom,
(ii)leave to remain under the Destitution Domestic Violence concession M7, or
(iii)leave deemed to have been granted by virtue of regulation 3 of the Displaced Persons (Temporary Protection) Regulations 2005 M8,
(f)a person who has humanitarian protection granted under those rules, or
(g)a person who is not a person subject to immigration control within the meaning of section 115(9) of the Immigration and Asylum Act 1999 M9 and who is in the United Kingdom as a result of their deportation, expulsion or other removal by compulsion of law from another country to the United Kingdom.
Marginal Citations
M1OJL 158, 30.4.04, p. 77.
M2Regulation 14 was amended by Schedule 1 of S.I. 2012/1547 and S.I. 2013/3032.
M3Regulation 15A was inserted by regulation 9 of S.I. 2012/1547 and paragraph (4A) of that regulation was inserted by S.I. 2012/2560.
M4Cmnd. 9171.
M5Cmnd. 3906.
M7The Destitution Domestic Violence concession is published by the Home Office at http://www.ukba.homeoffice.gov.uk/
M8S.I. 2005/1379 as amended by S.I. 2013/630.