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)
University College London v Newman (1985) Times, 8 January
The student in this case was charged overseas fees for a degree
course that started in October 1983. The relevant period of ordinary
residence was from 1 September 1980 to 1 September 1983. The Court of
Appeal had to consider whether the student had been ordinarily resident
in the European Community (EC), now the European Union (EU), for that period.
The University doubted that the student had been ordinarily resident
in the UK or the EC for the three-year period because he had been
travelling since leaving New Zealand. He had left New Zealand in 1977,
and arrived in the EC in August 1978, where he spent time in five
different countries. Between September 1981 and September 1983 he spent
most of his time in the UK. Between September 1980 and September 1981 he
was in the UK for 28 weeks, France for 19 weeks and Spain for four
weeks. At that time, Spain was not in the EC, and his time there was on
holiday. He was not regarded as having put down roots anywhere and said
that he used France as his "base for travelling". He spent short spells
of time in each country, returning to each several times. He undertook
some work, described by the county court judge as "the
token effort required to ensure that he receives social security
In the lower county court, the judge held that the student was not
ordinarily resident in the EC because he had "become a rather aimless
drifter...He had never really settled anywhere until after his return to
the United Kingdom in October 1981". This judge held that the student
did not become ordinarily resident in the UK between August and October
1980 after having left France, and was not ordinarily resident in France
between October 1980 and February 1981 after having left the UK as he
was not in either country for a settled purpose. For the same reason, it
was held that he did not become ordinarily resident in the UK until
some months after his return in October 1981, and so he spent some time
not ordinarily resident in any particular country.
The Court of Appeal agreed that it is possible for someone to be
ordinarily resident nowhere, including those who spend their lives
sailing around the world and those who move regularly in order to avoid
having to pay tax. However, Lord Justice Croom-Johnson considered other
cases in which 'homeless wanderers' had been regarded as ordinarily
resident in the UK as a whole, even if not in a particular region, and
he held that the county court judge had asked the wrong question, namely
was the student ordinarily resident either in France or in the UK, to
which the answer for the first year of the three-year period had to be
'no'. If the correct question of whether he had been ordinarily resident
in the EC as whole for those three years had been asked,
"the answer would have had to be "yes". What the evidence did show was
that Mr Newman was ordinarily resident, after his casual fashion,
somewhere in the EC for the whole of the qualifying three years. Indeed,
since 1978 he has hardly been outside the EC at all".
Travel before residence in the EU (McBreen)
R v The City of Birmingham ex parte McBreen (11 October 1985) CO/1324/85
This case contrasts with Newman. The student applied for a grant to
study at university, and she had to show that she had been ordinarily
resident in the European Community, as it was then called, between 1
September 1982 and 1 September 1985. The student lived in the UK, then
went to Finland with her mother where she went to school. Finland did
not join the European Union until 1995. She decided to return to the UK
and left Finland on 9 August 1982. She spent one month travelling to
Denmark, Italy, Germany and Austria on an inter-rail ticket, arriving in
the UK on 9 September 1982, where she then lived in Birmingham with her
The High Court held that it was impossible to argue that she was
ordinarily resident in the UK and Islands for the relevant three years
as she did not arrive in the UK until 9 September, eight days after 1
September 1982. It then considered whether her travels in the EC
combined with her life in the UK meant she had been ordinarily resident
in the EC and, in particular, whether she had habitually and normally
resided in the EC from choice and for a settled purpose. Mr Justice
Macpherson held that:
"It seems to me quite plain that until she came
to Birmingham and started to live there with her father she was not
ordinarily resident in the European Community at all within the meaning
of the words as set out in the legislation."
had travelled through a number of countries... Somebody who travels on an inter-rail ticket valid for the
whole of Europe and travels purely in European countries cannot in my
judgment in the ordinary and natural meaning of the words be said to be
ordinarily resident in the European Community. She is probably not
resident anywhere specifically for that time. She stays in hotels or
with friends and in trains and does not become resident, and certainly
not in my judgment ordinarily resident, until her abode settles down and
she remains, as she did in this case, in Birmingham whence she seeks to
go to university education in this country."
The difference between this case and Newman is that in Newman the
student had already lived in the EC for two years before the relevant
three-year period started so his travels in that area had become part of
the regular order of his life. Usually people who live in the UK who
spend a short period of time travelling anywhere in the world on holiday
would not be regarded as having lost their ordinary residence in the UK
as this would be a temporary absence.
Settled way of life can be adopted in a short period (H-K)
The facts of this case are summarised in Voluntarily adopted residence, children's residence.
As part of considering whether children had acquired ordinary
residence in the UK during a one-year visit, the Court of Appeal
assessed whether they and their mother had habitually and normally
resided in the UK for settled purposes. It held that they did lead a
settled way of life as they lived in a house owned by the
mother, her family was nearby, both parents had worked and obtained
security benefit, and the older child went to school. The intended and
the actual duration of their stay meant it was not transient or
peripatetic. The purpose of their stay was settled as it was to see if
the parents could save their relationship and so they adopted a new way
of life in a new country for long enough to achieve that objective.
Their 'real' home probably remained Australia but that did not affect
residence, which was in the UK.
Government guidance on residence in more than one country
When assessing eligibility for a student loan, caseworkers are instructed to consider whether a person whose absence is more than temporary could be ordinarily resident in more than one country or area at the same time.
In particular, they should ask "Has the student/family maintained business, work and/or social connections in the UK? Have regular visits been made to the UK during their absence not just for the purposes of holidays and visiting relatives?"
The Department of Health's guidance also makes clear that visits to family, even if made regularly, are not enough on their own to demonstrate ordinary residence in the relevant area as well as in another country.
"A person can be ordinarily resident in more than one country at once. As long as they are properly settled here, despite spending more time in their other place of residence, they will meet the ordinary residence test. There is no requirement that the time be equally split between the UK and another country in order to maintain ordinary residence in the UK."
"Where a person has lived in more than one country for several years, consideration needs to be given to whether there is a pattern of regular trips to the UK over the years that demonstrates a sufficient degree of continuity to establish ordinary residence in the UK. The length and number of trips to the UK, family and other relationships with people in the UK, financial, property and other connections to the UK will all be relevant factors in determining if the person is ordinarily resident in the UK despite spending time living in another country. If they live only in [another country], and are only here as a visitor, not as a resident, then they will not meet the ordinary residence test."
This guidance considers in some detail the situation in which a person who is working outside the relevant residence area may be ordinarily resident in more than one country at the same time.
"A person whose work takes them out of the UK for the majority of the time but whose home, which they return to between trips, remains here will still be ordinarily resident here. This would apply to, for example, a pilot or a member of cabin crew. However, if they are working and settled in one place overseas and only spend a few weeks of the year in the UK visiting family, then they are not likely to be properly settled here, in which case they would not be ordinarily resident here. If some people are posted overseas temporarily as part of their contract and maintain a base in the UK that they return to even if only on short stays, they may well still be ordinarily resident here. Assessing whether someone maintains ordinary residence in the UK will require consideration of their family and other relationships with people in the UK, financial, property and other connections to the UK, in addition to the time they actually spend in the UK in any given year."
Residence in more than one country, more time outside than in UK (Britto)
This case concerned an application for a certificate of
naturalisation. Mr and Mrs Britto owned a home in the UK but had to
spend long periods outside the UK for Mr Britto's work. In order to
qualify for naturalisation, the couple had to show
they were 'settled' (as defined in the Immigration Act 1971) in the UK
and had been ordinarily resident for a five-year period. In the
Act 'settled' is defined as being 'ordinarily resident' in the UK
'without being subject under the immigration laws to any restriction'
on the period of stay.
As the issue in this case turned largely on whether Mr and Mrs
Britto had been ordinarily resident in the UK for five years, the case
depended on the application of the criteria of ordinary residence as
laid down by Lord Scarman in the case Shah.
Mr Britto was born in Kenya, trained in England as a cartographer,
was employed by the governments of Uganda and Tanzania and during the
years in question (1972 to 1983) was employed by the United Nations to
work in Ethiopia and Nepal. He and his wife were granted indefinite
leave to remain in August 1977. They bought a house in England in 1974
which, apart from the first year after purchase, was used as a family
home. Their two older children attended school in England from 1973
onwards. Mr Britto's salary and pension were paid into a UK bank account
and, apart from one trip to Goa, he and his wife spent all their leave
in the UK. Most of their time was spent outside the UK, but between
November 1972 and January 1983 they spent between two weeks and two
months every year (with only one exception) in the UK, at first looking
for a house, finding a college place for their son and escorting him
there, and then visiting their home and children.
The Asylum and Immigration Tribunal held that Mr and Mrs Britto were
ordinarily resident in two places at once, the country in which they were working and the UK.
The Tribunal commented that the emphasis was
not so much on the duration of the presence but on the regularity and
purpose. The purpose (in Lord Scarman's words the 'settled purpose') is
used to distinguish 'ordinary' from 'occasional' residence, a visit
that is not part of the regular order of life.
In relation to the need for physical presence, the Tribunal commented
that "without some physical presence ordinary residence would
be difficult to establish, but presence will decrease in importance in
the light of a continuous and regular substantive connection such as is
evidenced by a home". The Tribunal added that it was a question of
fact and degree in each case.
It was decided that Mr and Mrs Britto were ordinarily resident in the UK for the required period because:
- they had a settled purpose, to establish a home for the family and eventually to live in it permanently
- there was a regular habitual mode of life as the home was
available and used by the family. There was continuity in this mode of
life in the form of the visits made by Mr and Mrs Britto whenever their leave
In this case, the family home and the accepted family intention
taken together with the regular visits (even though limited in
duration) led to the conclusion that Mr and Mrs Britto were ordinarily
resident for the required period.
Residence in more than one country, extended visits to UK (R(P))
This case concerns eligibility for up-ratings of retirement pension,
but turns on whether the claimants were ordinarily resident in both
New Zealand and Britain. From 1992, the claimants had lived most of the
year in New Zealand, for family reasons, but returned every year to
Britain for a single period of between two and six months. They stated
that they did not travel to other countries and they never left Britain
without buying return tickets. One of the claimants had been granted
residency rights in New Zealand, but the other had not applied for
them. The Commissioners held that they were ordinarily resident in both
countries because, amongst other reasons:
- Britain had, until the events in issue, been their long-term
home and they still had a home there at all relevant times which was
not occupied by anyone else (although they had tried to sell it)
- their strongest economic ties were with Britain which remained
the source of their main income (their pension) and was a country where
at least one was paying tax
- there was a clear pattern over several years of extended periods
spent in both Britain and New Zealand but at no time did a full year
go by without an extended visit back to Britain and by 1998 the
claimants had established a clear pattern of extended residence in both
Britain and New Zealand.