Ordinary residence case law

Last modified: 15 November 2017

Many of the provisions of the fees and Student Support (student finance) regulations require ordinary residence in the UK and Islands, or in the EEA, Switzerland, overseas territories and/or Turkey. In most cases, it is clear whether you have been ordinarily resident in the relevant area. However, in a minority of cases, you might have to persuade an institution or Student Support authority that you meet this requirement. This is most likely to happen when, for some or all of the relevant period, you have lived outside the residence area that applies to you. In such cases, the legislation for England, Wales and Northern Ireland provides no guidance and those assessing your eligibility for 'home' fees and Student Support have to rely on cases that have been decided in UK courts and tribunals. Each case is decided on its own facts and it might be difficult to derive a general principle from every case. This is why it is possible for institutions and authorities to reach different conclusions in your case, even though you present them with the same facts. UKCISA cannot get involved with any disputes you might have with decision-makers. However, you might find the summaries of case law helpful in formulating your arguments.

'Ordinary residence' is a concept that appears in many areas of law. Therefore, many of the cases described here are not fees or Student Support cases but come from other areas of law, for example from immigration and nationality cases. However, the courts' interpretations of the term 'ordinary residence' are relevant to fees and Student Support cases. In some of the immigration and nationality cases, the period of ordinary residence in question was five years. This should not be confused with the requirements of the fees and Student Support regulations. These cases are included because of their interpretation of the term 'ordinary residence' and related issues such as temporary absence.

Some of the cases in this section are reported in full on the website of the British and Irish Legal Information Institute.

The case of Shah

Last modified: 25 February 2016

Extracts from the case of Shah v London Borough of Barnet [1983] 1 All ER 226

This is the key  case in relation to the meaning of ordinary residence and it is often quoted in other cases.  Note: in the extracts below, Lord Scarman uses the term 'settled purpose'. This should not be  confused with the requirement in the fees and Student Support regulations that someone should  be 'settled' within the meaning of the Immigration Act 1971.

"It is my view that LEAs,  when considering an application for a mandatory award, must ask themselves the question:- has the  applicant shown that he  has habitually and normally resided in the United  Kingdom from choice and for a settled purpose throughout the prescribed period, apart  from temporary or occasional absences? If an LEA asks this, the correct, question, it  is then for it, and it alone, to determine whether as a matter of fact the applicant has  shown such residence. An authority is not required to determine his “real home” whatever that  means: nor need any attempt be made to discover what his long-term future intention or expectations are.  The relevant period is not the future but one which has largely (or wholly) elapsed, namely that between  the date of the commencement of his proposed course and the date of his arrival in the United Kingdom.  The terms of an immigrant student’s leave to enter and remain here may or may not throw light on the  question: it will, however, be of little weight when put into the balance against the fact of continued  residence over the prescribed period – unless the residence is in itself a breach of the terms of his  leave, in which event his residence, being unlawful, could not be  ordinary.

"There are two, and no more than two, respects in which  the mind of the propositus [the student applicant] is important in determining ordinary  residence. The residence must be voluntarily adopted. Enforced presence by reason of kidnapping  or imprisonment, or a Robinson Crusoe existence on a desert island with no opportunity of escape,  may be so overwhelming a factor as to negative the will to be where one is.

"And there must  be a degree of settled purpose. The purpose may be one; or there may be several. It may be specific  or general. All the law requires is that there is a settled purpose. This is not to say that the  propositus intends to stay where he is indefinitely; indeed his purpose, while settled, may be for  a limited period. Education, business or profession, employment, health, family, or merely love of  the place spring to mind as common reasons for a choice of regular abode. And there may well be  many others. All that is necessary is that the purpose of living where one does has a sufficient  degree of continuity to be properly described as settled.

"The legal advantage of adopting  the natural and ordinary meaning, as accepted by the House of Lords in 1982 and recognised by Lord  Denning in this case, is that it results in the proof of ordinary residence, which is ultimately a  question of fact, depending more upon the evidence of matters susceptible of objective proof than  upon evidence as to the state of mind. Templeman LJ emphasised in the Court of Appeal the need for  a simple test for LEAs to apply: and  I agree with him. The ordinary and natural meaning of the words supplies one. For if there is  to be proved a regular, habitual mode of life in a particular place, the continuity of which  has persisted despite temporary absences, ordinary residence is established provided only if  it is adopted voluntarily and for a settled purpose.

"An attempt has been made  in this case to suggest that education  cannot be a settled purpose. I have no doubt it can be. A man’s settled purpose will be  different at different ages. Education in adolescence or early adulthood can be as  settled a purpose as a profession or business in later years. There will seldom be  any difficulty in determining whether residence is voluntary or for a settled purpose:  nor will enquiry into such questions call for any deep examination of the mind of the  propositus."

Lawful residence

Last modified: 02 August 2017

Lord Scarman, in the House of Lords case of Shah stated that:

"Unless, therefore, it can be shown that the statutory framework or the context in which the words are used requires a different meaning, I unhesitatingly subscribe to the view that "ordinarily resident" refers to a man's abode in a particular place or country which he has adopted voluntarily and for settled purposes as part of the regular order of his life for the time being, whether of short or long duration."

"There is, of course, one important exception. If a man's presence in a particular place or country is unlawful, e.g. in breach of the immigration laws, he cannot rely on his unlawful residence as constituting ordinary residence... There is, indeed, express provision to this effect in the Immigration Act 1971 s. 33 (2). But even without this guidance I would conclude that it was wrong in principle that a man could rely on his own unlawful act to secure an advantage which could have been obtained if he had acted lawfully."

The need for lawful residence has been unsuccessfully challenged in more recent cases, particularly in the context of those who spent some time in the UK without any immigration permission before they were granted leave.

The principle that residence must be lawful is relevant to all categories that require ordinary residence.

Overstaying (Arogundade)

Temporary admission (Tigere)

Voluntarily adopted and children's residence

Last modified: 02 August 2017

Lord Scarman in the case of Shah stated that when considering ordinary residence the state of mind of a person is important in two respects.

One is that the residence is for a settled purpose. The other is that the residence is voluntarily adopted.

This means that time spent in prison or in detention, whether officially or by family, is not ordinary residence. In such cases, it would need to be decided whether the time spent in a location which was not voluntarily adopted could be seen as a temporary absence from the usual place of ordinary residence.

The question that more commonly arises is whether a young person's residence is or has been voluntarily adopted. This is because young children are usually not able to make their own decisions about where they live, and they might argue that given the choice they would not have left the UK or the European Economic Area. This can also apply to adults who lack the capacity to make their own decisions about such matters.

In most cases, a young child's ordinary residence is held to be that of the parents, or parent with care, unless there is evidence that the student, as a child, was abducted, in foster care or local authority care, or was not physically present in the same country or area as his or her parent(s). For information about the ordinary residence of children in care, see the Department of Health's guidance on ordinary residence in community care cases.

Tests not to apply when considering voluntarily adopted residence (H-K)

Separated parents and child lives with a grandparent (M)

Child in foster care in different country from both parents (LM)

Student in India for exams, most of family in UK (Bhatt)

Settled purpose and ordinary residence in more than one place

Last modified: 02 August 2017

Lord Scarman in the case of Shah held that the mind of the applicant is important in two regards.

One is that the residence is voluntarily adopted. The other is that it is for a settled purpose, and the cases we have summarised here illustrate some of the main factors that demonstrate a settled purpose.

As the Department of Health's guidance on ordinary residence and on overseas visitor charging regulations states, "A person is not ordinarily resident in the UK simply because they have British nationality; hold a British passport; are registered with a GP in the UK; have an NHS number; own property in the UK; or have paid (or are currently paying) National Insurance contributions and taxes in the UK...British Citizens who are no longer living and settled in the UK cannot be said to be Ordinarily Resident in the UK."

In considering whether visits are likely to demonstrate a settled purpose, the same guidance states that "Purposes such as holiday or recreation, short or irregular business visits, or temporary stays with family/friends are unlikely to be sufficiently settled to meet the ordinary residence test."

In some cases, it has been held that an individual has been ordinarily resident in more than one country or area at the same time. This means that even if their absence is not regarded as temporary and they have acquired ordinary residence elsewhere they have not lost their ordinary residence in the relevant area.

Travel and residence in several EU member states (Newman)

Travel before residence in the EU (McBreen)

Settled way of life can be adopted in a short period (H-K)

Government guidance on residence in more than one country

Residence in more than one country, more time outside than in UK (Britto)

Residence in more than one country, extended visits to UK (R(P))

Temporary absence

Last modified: 15 November 2017

Temporary absences from the residence area can be ignored when deciding if you have been  ordinarily resident in an area for a specific length of time, usually three years for the fees and  Student Support regulations.

Neither the case law nor the legislation defines 'temporary', so there is  no set period of time which counts as 'temporary', although the longer you are physically absent from the  residence area, the harder it will be for you to argue that you were only temporarily absent from that area.  Your intentions may also be important. For example, if you emigrate out of the relevant area you may lose your ordinary residence in that area almost instantly. However, decision-makers are not expected to assess intentions, for example, a stated intention to return to the relevant area that is not supported by evidence.

Student Finance England's guidance states that gap years are regarded as a temporary absence.

If an absence is more than temporary, you should consider whether you can a persuade a decision-maker that you are or have been ordinarily  resident in more than one area at the same time, by demonstrating a 'settled purpose' in both areas.

Residence established after one month not broken by 18 months' absence (Vaswani)

Absences for travel (TC)

Exceptional use of hindsight to assess intentions (Siggins)

Ordinary residence lost on departure in spite of later return (Haria)

Ordinary residence lost on departure (Ng)

Absence can stop being temporary (Patel)

Temporarily employed outside the residence area

Last modified: 02 August 2017

Both the fees and the Student Support regulations expressly provide that you  are to be treated as ordinarily resident in the relevant residence area if you  would have been ordinarily resident there but for the fact that you,  or your spouse or civil partner or your parent is or was temporarily  employed outside the area in question. If you would be entitled to 'home' fees  and Student Support as the dependent parent or grandparent of an EU national or of  an EEA/Swiss migrant worker, the temporary employment outside the area in question of your  child or of your child's spouse of civil partner is also relevant.

The word 'temporary' is  not defined, so you need to be able to provide evidence that the employment is or was outside the relevant area for a limited period and that you would have been ordinarily resident in the relevant  area if the temporary employment had not taken you out of it.

The guidance produced by Students Award Agency Scotland states that "Those who are on a short, one off, fixed-term contract of 3-5 years, who will return to Scotland to live there ordinarily at the end of the contract outside the UK, will normally be eligible for support from us. If you choose to remain abroad for a longer period of time, you may not be eligible for support. We will assess each case individually, on its own merits taking into account all the relevant information you give us".

The guidance produced by Student Finance England provides a list of factors that need to be considered in deciding whether an absence for employment is temporary. It states that "Holding temporary residency visas and/or temporary employment contracts are insufficient grounds of themselves as different countries have different immigration systems", so additional evidence is needed.

Regular visits to the UK but employment abroad for 13 years (Huddleston)

Main purpose of residence

Last modified: 01 August 2017

For many categories of the fees and Student Support regulations, you have to show not  only that you have been ordinarily resident in a particular area, but also that your main  reason for being there was not to receive full-time education.

You can check this for  yourself by asking where you would be ordinarily resident, if you were not in full-time  education. If the answer to this is in the same area, full-time education is not your  main reason for being there. For example, if you are an EU national and your only reason  for being in the UK is to receive full-time education, but when you are not in education  in the UK you live in Belgium, you can show that you are not ordinarily resident in the  European Economic Area (EEA) (part of the relevant residence area for EU nationals) mainly for  full-time education.

If the answer to this question is that you would be somewhere outside this residence area, for example, in Nigeria, the main purpose for your residence in the relevant area is to receive full-time education. However, you can still be entitled to home fees or a student loan if one of your family members, usually a parent, spouse or civil partner, is temporarily employed outside the residence area.

Arrival in UK shortly before course started, holidays with parent (Wimbourne)

Joined by parents, main purpose settlement (Kent)

Young, parents outside UK, lived with family but attended boarding school (Leung)

Boarding school, holidays with family, but question of temporary employment (Jain)


Top