Ordinary residence case law

Last modified: 09 August 2016

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)

R (Arogundade) v Secretary of State for Business, Innovation and Skills [2013] EWCA Civ 823

The student had arrived in the UK as a visitor in 2003. When her leave expired in January 2004, she remained as an overstayer. She applied for leave on 19 September 2007, and was granted discretionary leave on 26 September 2009. She started a degree course in February 2010, so had to show that in order to be entitled to a student loan that she had three years' ordinary residence in the UK from 1 January 2007 to 1 January 2010.

At first, she was assessed as being eligible for student finance. However, when it became obvious that for some of that three-year period she had no immigration permission, her payments were cancelled on the grounds that she had not been ordinarily resident in the UK for the whole three-year period.

The Court of Appeal held that, although some cases in other areas of law did not follow the dicta in Shah (divorce and eligibility for support when destitute), it was to be applied in this student loan case:

"In my judgment, the dicta of Lord Scarman in Shah's case explained clearly the rationale for implying a requirement of lawfulness into the residence upon which "ordinary residence" is based. There is no need to amplify what Lord Scarman said. It is that understanding of the words used in this area of legislation and that rationale which has been accepted as implicit in successive regulations. When the draftsman used those words in the 2009 Regulations he must, to my mind, be taken as having intended to import that settled understanding of the phrase "ordinarily resident". There was no need, in my view, to make the express provision which, perhaps wisely in the light of the arguments in this case, was inserted into the Regulations by the 2012 Amendment Regulations."

Temporary admission (Tigere)

R (Tigere) v Secretary of State for Business, Innovation and Skills [2015] UKSC 57

A student was brought to the UK at the age of 6 as the dependant of her student father. When her father's leave expired two years later in 2003, he left the UK but the student and her mother remained as overstayers until 2010. They were given temporary admission until they were granted discretionary leave on 13 January 2012, and the student applied to start a degree course in October 2014.

The student's application for student finance was refused because she had discretionary leave and did not meet the requirements of any other eligible category, and because she had not been lawfully resident in the UK for the three-year period preceding 1 September 2014. One of her grounds for challenging the refusal was that she was not responsible for her lack of immigration permission as she was a young child at the time she became an overstayer and could not make her own application. This argument was unsuccessful and the Supreme Court held that there are “strong public policy reasons for insisting that any period of ordinary residence required before a person becomes entitled to public services be lawful ordinary residence”.

The Court of Appeal stated that the period during which the student was in the UK with temporary admission did not qualify as ordinary residence, and this point was not challenged in the Supreme Court.

However, the requirement for settled status was held by the Supreme Court to violate the student’s rights under the European Convention on Human Rights; two of the five judges held that it breached Article 2 of Protocol 1 (right to education) and three considered that it breached Article 14 (right not to be unlawfully discriminated against on the grounds of immigration status). The relevant regulations have been changed to introduce a 'long residence' category of home fee payer and eligible student for student finance, but ordinary residence is still a requirement.

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.

 

Child removed by one parent without the consent of the other (Re P (GE))

Re P (GE) (an infant) 1965 Ch 568

Note: this case was decided before 'Shah'

The child had been removed from the UK by his father without the knowledge of the mother. The question  was whether the court had jurisdiction over the father and child and this depended on whether they were ordinarily resident in the UK.

Lord Denning decided that the father and child were  ordinarily resident in the UK:

"An infant of tender years is ordinarily resident where he has his home, and  that ordinary residence cannot be changed by kidnapping him or by one parent taking  him from that home without the consent of the other.

...we are faced with the  question: what is the ordinary residence of a child of tender years who cannot decide  for himself where to live, let us say under the age of 16? So long as the father and  mother are living together in the matrimonial home, the child's ordinary residence is the  home – and it is still his ordinary residence, even while he is away at boarding school.  It is his base, from whence he goes out and to which he returns. When father and mother  are at variance and living separate and apart, and by arrangement the child resides in the  house of one of them – then that home is his ordinary residence even though the other  parent has access and the child goes to see him from time to time."

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

H-K (Children) [2011] EWCA Civ 1100

This Court of Appeal judgment also concerns children who remained with one parent, but the facts and outcome are different from Re P (GE). In Lord Justice Ward's judgment, he makes clear the tests that should not be applied when assessing ordinary residence, including where a person's 'real' or permanent home is and considering the parents' intentions or expectations.

In this case, a British/Australian father and a British mother living in Australia decided to spend one year in England in an attempt to improve their relationship. They brought their two young children with them. The father returned to their home and possessions in Australia after one year and agreed that the mother and children could stay for longer. The mother later announced that she would stay in the UK with the children, and the father pursued legal action to have the children returned to Australia.

The judge held that the family came to the UK voluntarily for one year and had a settled life in the UK.

Separated parents and child lives with a grandparent (M)

Re M (Abduction: Habitual residence) [1996] 1 FLR 887

Sometimes a child lives with neither parent but with a different family member. In this case, a boy's parents who lived in England separated and agreed that they should send their two year-old son to live with his grandparents in India, with the intention that he should attend school and stay there until adulthood. Around 18 months after having sent their son to India, the mother changed her mind and wanted him to return to England. After having considered a number of cases concerning ordinary residence, the Court of Appeal held that:

"Before a person, whether a child or an adult, could be said to be habitually resident, it was clear that he must be resident in that country. This did not require physical presence at all times. Temporary absences, for holidays or for educational purposes would not bring habitual residence to an end. It was found as a fact in this case that the child had become habitually resident in India... The mother's change of mind could not alter the fact that the child remained physically resident in India. It was doubtful whether the mother's change of mind could alone alter the habitual nature of the child's residence, however it was not necessary to determine this issue, as it was clear that the child could not acquire habitual residence in England without ever having been returned to this country. To determine otherwise would have the effect of abandoning the factual basis of the test of "habitual residence" and to clothe it with some metaphysical or abstract basis more appropriate to a legal concept such as domicile. In all probability, therefore, the child was still habitually resident in India. In any event, at the time of the issue of the originating summons on 20 July 1995, he was not habitually resident in England and Wales, and, accordingly, the High Court did not have jurisdiction in this case."

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

Re LM (a child) [2013] EWHC 646 (Fam)

British parents went to the Republic of Ireland where the mother gave birth. The baby was immediately made the subject of public law proceedings and put into foster care in Ireland. Shortly after the birth, the mother returned to England and the father went to Scotland. In deciding where the baby was habitually resident, the High Court considered a number of cases on the subject of ordinary residence.

Although the baby was a British citizen, had no family in Ireland and both parents were in the UK, it was held that a child is not automatically habitually (or ordinarily) resident in a country in which he or she has never lived simply because the parents live there.

Also, the ordinary residence of a child will not change to that of his or her parent during public law proceedings unless the child is placed with or lives with the parent.

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

Bhatt v The London Borough of Barnet Court of Appeal (22 May 1985)

The student was a British citizen who was born and lived outside the UK until the age of 17. Her father came to the UK on 3 April 1978 and was joined by most of the rest of the family in May 1978. The student remained in India with her brother and grandmother until 15 September 1978 in order to complete her college course there. She applied for a study award in the UK for a degree course starting on 28 September 1981, so had to show three years' ordinary residence in the UK between 1 September 1978 and 1 September 1981. Although her father, brothers and sisters were resident in the UK on 1 September 1978 and she would have been in the UK with settled status on that date if she had not been required to sit exams in India, Lord Justice May held that:

"As I said at the start, I have every sympathy for the appellant in the circumstances of this case, but ordinary residence means ordinary residence, ordinarily living in this country... I cannot think that the matters to which Mr Nathan [the appellant's barrister] directed our attention in any way alter the situation that this applicant was, for those fourteen days, not living in this country. She was resident in Bombay."

This case contrasts with that of Vaswani, in which a 16-year old arrived in the UK, and left one month later to go to school in India. He was held to be ordinarily resident in the UK because he had established his ordinary residence before leaving, and so was effectively only temporarily absent.

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)

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 payments."

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 father.

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."

"She 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)

H-K (Children) [2011] EWCA Civ 1100

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 social 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 their ordinary residence, which was in the UK. 

Government guidance on residence in more than one country

Student Finance England guidance on assessing eligibility

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?"

Department of Health guidance on ordinary residence

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)

Britto v The Secretary of State for the Home Department [1984] Imm AR 93

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 permitted.

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))

R(P) 1/01 [2000] CP/3035/1999 (UK Social Security and Child Support  Commissioners’ Decisions 12 September 2000)

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.

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)

R v London Borough of Barnet ex parte Vaswani (23 May 1983) CO/1024/82

The student in this case was born in Tanzania and lived in India until he and his family came to the UK on 25 May 1978 to settle. He was just under 16 years old. His parents had difficulty in finding work and accommodation so one month later on 24 June 1978 he, his mother and sister returned to India, leaving only his father here. The student went to school in India from July 1978 until he returned to the UK on 15 December 1979 to live with his father who had by then found work and a flat. His mother and sister rejoined them in April 1980.

The student applied for a grant for university study starting in autumn 1982. This was refused on the grounds that he had not been ordinarily resident in the UK and Islands for the three-year period between 1 September 1979 and 1 September 1982.

The High Court was of the view that the student had not lost the ordinary residence he established when he first arrived in the UK:

"it seems to me on the material which I have seen that there is strong reason to believe that Mr. Vaswani was indeed "ordinarily resident" in this country throughout the whole of the relevant three years. I can see that another conclusion could well be drawn if it were believed that his month's residence in the United Kingdom in the summer of 1978 had been taken up as a device in order to gain an advantage in this respect or some other, but, so far as I know, no suggestion of bad faith or tactical manoeuvring has ever been made against either Mr. Vaswani or his parents."

Absences for travel (TC)

TC v Secretary of State for Work and Pensions [2017] UKUT 222 (AAC)

This case concerns eligibility for a welfare benefit and the period under consideration is three months, not three years. However, some useful points are made. The appellant had travelled for a year as a tourist until mid-2013 but he had returned to the UK for four months when his father fell ill. He then travelled abroad again as a tourist from November 2013 until February 2015. The government department considered that 15 months' absence was not temporary. However, the judge held that the absence was temporary.

"The appellant had lived all his life in the United Kingdom and had been educated here to degree level. He lived in his mother’s home. His bank account was here. He had been registered with the same GP since 2007. His travels were just that: an extended holiday which was expected to come to an end when he would return to the United Kingdom." 

"Duration is relevant but not determinative. The break in the earlier trip indicates that interests of family were given priority over holidaying. The appellant was never more than a traveller or tourist in the countries he visited."

Exceptional use of hindsight to assess intentions (Siggins)

R v Immigration Appeal Tribunal Ex parte  Siggins 1985 Imm AR 14

In this case, in order to avoid deportation, the applicant had to show that he had been  ordinarily resident in the UK on 1 January 1983 and had been so resident 'for the last five years'.  The case went first to the Immigration Appeal Tribunal following the adjudicator’s decision that a  period of casual work in the United States broke the period of ordinary residence in the UK. Before  the High Court it was argued that, applying the principles laid down by Lord Scarman in Shah, those  periods of absence had not broken the applicant’s period of ordinary residence in the UK.

Mr Siggins' absences from the UK during the five years totalled about 11 months. Eight of the  eleven months were spent working in the States after he had left his job and accommodation in the UK.  The Tribunal had noted that there was no evidence that he retained any contact with the UK during that  period. He had, however, held a return ticket and when interviewed at the Home Office said that his  intention was to return.

The Tribunal had decided, however, that it would be wrong to place  too much weight on the return ticket and the implied intention. It had concluded that there was no  residual, habitual mode of life in the UK against which Mr Siggins’ absence could be set. It had  commented that on Mr Siggins' own evidence he was a 'wanderer' and that therefore he was in effect  doing in the States what he did here.

The Court of Appeal stressed the importance of asking  what Mr Siggins' purpose was when he left the UK, and that "there are times when a court can and must  properly make use of hindsight and one of them is in considering whether a man’s purpose has been followed  up by his subsequent actions". The court could not find any evidence that Mr Siggins had abandoned the UK  as his place of ordinary residence.

The court did not agree with the argument that Mr Siggins had  no residual, habitual mode of life in the UK. Although Mr Siggins' lifestyle was marked by an absence of  regular activity, the quality of his visit to the US was different from that of his stay in the UK, both  because of its length and because of his stated intention (in fact carried out) to return to the UK at the  end of his visit.

It was held that:

  • because the applicant could be ordinarily resident in  more than one place at any material time, it was a question of fact whether he had remained ordinarily  resident in the UK
  • taking into consideration the facts and that the applicant’s subsequent conduct  showed he had carried out his earlier expressed intention of returning to the UK, he had remained ordinarily  resident in the UK throughout the relevant period.

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

The Secretary of State for the Home Department v Rekha Ashok Kumar Jayantilal  Haria 1986 Imm AR 165

This case refers to the cases of both Shah and Britto.

The case is concerned with section 2(1)(c) of the  Immigration Act 1971, whereby a person is entitled to a right of abode if he or she is a citizen  of the UK and Colonies who has at any time "been settled in the UK and Islands and had at that time  (and while such a citizen) been ordinarily resident in the UK for the last five years or more".

Mrs Haria arrived in the UK in 1973 from Kenya to join her husband. By 1977 (four years and  two months later) the family business had failed and they returned to Kenya in order to take  advantage of a business opportunity there. In September 1979, she returned to the UK for six months,  during which time her daughter was born. She then returned to Kenya in March 1980 and stayed there until  November 1982, when she came back to the UK to settle, selling their business and house in Kenya when  she and her husband went back for a four-month holiday. The absence from the UK between April 1977 and  September 1979 was a critical period for the purposes of this case

The need for continuous contact  with the UK in order to establish ordinary residence was stressed. The facts of this case were contrasted  with Britto in which there was a continuing contact over a number of years. In this case, it was argued,  the only contact was the residence here of the two sets of parents.

The court held that when  Mrs Haria left the UK and went to Kenya in 1977, she ceased to be ordinarily resident in this  country: "While there was a specific purpose in going and it would appear from the evidence that  the move was founded on economic necessity, this did not mean that the move was involuntary.  Further ... there was little substantive contact with this country and certainly no evidence that  the intention to return at some future date was anything more than an intention".

Although there was a 'family intention' to return, the conclusion as to ordinary residence had  to be based on what happened. Although there was a purpose to set up in business in this country  again, there was in fact no business here and no money invested for a fresh start here. The court  therefore concluded that it was impossible to say on the facts that during her absence from this  country Mrs Haria remained in the UK "for settled purposes as part of the regular order of her life  for the time being".

Ordinary residence lost on departure (Ng)

R v Immigration Appeal Tribunal ex parte Sai Ho Frederick Ng 1986 Imm AR 23 (QBD)

To qualify for a certificate of patriality on the facts, Ng needed to be ordinarily  resident in the UK 'for five years or more' which meant he still had to be ordinarily resident in the UK on 29 August 1967. On that date, he had ended his employment in the UK and had left for Hong Kong with no intention of returning to the UK. He was still, however, within the period covered by the accrued leave from his UK employment.

It was held that:

  • it was an inevitable inference from the facts that when Ng left the UK he intended to reside and be employed in Hong Kong for the foreseeable future
  • it followed that he ceased to be ordinarily resident in the UK either on his departure from it or on his arrival in Hong Kong
  • it could not be said that Ng was on holiday until he took up employment in Hong Kong.  Had he intended nothing more than a short holiday, he would have remained ordinarily  resident in the UK.

Absence can stop being temporary (Patel)

Dinubhai Patel and Another v Secretary of State for the Home Department [1984] Imm AR 147

Mr and Mrs Patel came to the United Kingdom in June 1975 with their four children. After arrival Mr Patel worked in the UK, but in November 1977 he returned to India. Originally, he intended to stay for a holiday of two to three months. However, there was trouble in a factory run by Mr Patel's brother, and Mr Patel stayed to deal with it. He did not return to the United Kingdom until April 1981, after which he remained in the UK. 

Mrs Patel spent the period between 1977 and 1982 moving between India and the UK. She was in India between
13 March 1977 and 23 May 1977, 9 February 1978 and 25 March 1979, 25 November 1979 and 23 April 1981, 14 May and 15 December 1982.

From 1975, the children (and Mr and Mrs Patel when they were in the UK) lived at the family house owned by Mr Patel's brother. The house was shared by Mr Patel's family and his brother's family.

The first tribunal held that neither Mr nor Mrs Patel had been ordinarily resident in the UK for the required five-year period. However, the Immigration Appeal Tribunal stated that "We are concerned in this case not with whether the appellants became ordinarily resident in India but whether they remained ordinarily resident in the United Kingdom" and held that Mr Patel had lost his ordinary residence but Mrs Patel had retained hers.

"In our view, Mr Patel's absence from England from 1977 until 1981 destroyed the continuity which is an inherent element of ordinary residence. It is arguable that during the initial period of his stay in India the connection with the United Kingdom was enough to classify his absence as temporary. However, during the later part of the stay it cannot be said in any meaningful sense that he had "a regular habitual mode of life" in this country."

"Between 1975 and 1983 Mrs Patel was physically absent for numerous and on two occasions lengthy periods. However, there is a regularity of substantial contact which, unlike Mr Patel, serves to maintain the foundation of ordinary residence laid in the years 1975 to 1977... In any event, looking at the period 1975 to 1982 as a whole, we are of the view that Mrs Patel had a regular habitual mode of life in this country."

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)

R v Lancashire County Council, ex parte Huddleston 1986 2 All ER 941

In this case the Court of Appeal had to decide whether a student (Lynne Huddleston),  who had been living in Hong Kong for 13 years because her father was employed there, should have been refused an award.

The Huddlestons were British citizens who moved from Lancashire to Hong  Kong when Mr Huddleston obtained a job there. The family always intended to return to Lancashire where they owned a house but Lynn lived in Hong Kong from 1970, when she was five, until 1983. She spent six weeks of every year in the family  home in Lancashire, under the annual home leave to which her father was entitled under his  contract of employment, and in 1983, she returned to the UK and applied to Lancashire County Council for an award. It was refused on  the ground that Lynne had not been ordinarily resident in the UK for the relevant three years.

The court upheld the council's decision, holding that it was not unreasonable for  the council to decide that Mr Huddleston’s employment abroad by a foreign company for 13  years ceased to be merely temporary and therefore Lynne could not be treated as ordinarily  resident in the UK for the purposes of these regulations.

UK links retained, more than one short-term contract (Jain)

R v Nottinghamshire County Council ex parte Jain (QBD) CO/874/88

A student, born in India in 1968, came to England on 21 July 1972. She and her parents lived in Nottingham between 1972 and 1977. In September 1977, her father took up employment as a teacher in Zambia as part of a British aid programme. The initial contract was for three years, but he had a second contract for three years, then a final contract for two and a half years, and returned to England in 1986. The family returned to England between contracts for three months in 1980 and in 1983.

The student lived with her family in Zambia between 1977 and 1980 but stayed in the UK from 1980 onwards to attend boarding school. She spent her holidays in Zambia every year except in 1983 when the family was in England. Her parents' home was rented out until the family returned to live in it in 1986.

In 1987 the student applied for a grant for university and was refused because she was considered to have been in the UK wholly or mainly to receive full-time education. There is an exception to this requirement if a family member is or has been temporarily employed outside the UK, so the High Court had to consider whether the student's father was temporarily employed outside the UK.

The task of the court was to consider if the County Council had acted unreasonably so it did not make a final decision in the matter but sent it back to be reconsidered. It did, however, provide some guidelines.

"The applicant's father took employment in Zambia in 1977 on a limited contract for three years. The whole nature of the contract linked it with the United Kingdom in that, as already indicated, the arrangement was under the auspices of the Overseas Development Administration and involved a number of British Government commitments to the applicant's father. Whatever may have been the case later when the aggregate of renewed contracts had absented the applicant's father from the UK for eight years, at the time of the first contract, it was at least highly arguable that the employment should be considered temporary. Indeed, it is difficult on the evidence to see how a single term overseas contract, with the employee preserving all property and personal links with England, could reasonably be regarded as anything other than temporary."

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)

R v Hereford and Worcester  County Council ex parte Wimbourne CO/174/83 (QBD)

The student in this case was a British citizen who applied to his  local authority for an award for a degree course that started in September 1983.  Both his parents were British and he was born in the UK in 1962. His father died when the student was four years old and his mother went to work in Trinidad, where the student went to school. In 1979, he returned to the UK, stayed with an aunt and uncle, and studied for his 'O' and 'A' levels at a technical college.

The local authority refused the award on the grounds that the student’s residence in the UK had, during the last three years, been wholly or mainly for the purpose of receiving full-time education. As Mr Justice Hodgson states in his judgment, "In arriving at this decision, the Authority bore in mind particularly that you undertook a full-time course at Herefordshire Technical College, concerning which you had made enquiries before leaving Trinidad, immediately on your arrival in this country and this was in fulfilment of a prior intention of resolving to continue your Advanced Level education in England, which involved attendance at a full-time GCE A level course aimed at securing consecutive admission to the full-time degree course which is the subject of your present  application. Your return to Trinidad during the long vacations is also considered a factor  in this connection". In this case, the student did not argue that he was in the UK for any  reason other than to receive full-time education.

Joined by parents, main purpose settlement (Kent)

Kent v University College London 1991 TLR 467

This case involved a student challenging an 'overseas' fee assessment.  The case centred around whether Mr Kent’s main purpose of residence in the UK  had been to receive full-time education during the three years prior to starting  the course.

Mr Kent was a British citizen whose parents lived in Singapore.  He left Singapore in February 1988 at the age of 17, at least partly in order to  avoid military service there at 18. His sister had come to settle in the UK shortly  before. Soon after arriving in the UK, he obtained a British passport. He lived with  his aunt and did a two-year 'A' level course at grammar school. In August 1990, his  father retired and both parents came to settle in England. In September 1990, Mr  Kent applied to start a degree course in October 1991, as he would have three years' ordinary  residence in the UK by then.

Whilst for two of those three years the student had been  in full-time education, the court decided that it did not follow that the full-time course  had been the whole or main purpose of his taking up residence in the UK. The evidence in this  case pointed instead to the conclusion that his purpose in leaving Singapore and coming to  England had been the general purpose of settling in the UK, and not for the specific purpose  of receiving full-time education. He was legally entitled to choose and acquire a residence  independent of his parents.

University College London appealed the decision but it was  upheld, the court in the appeal case noting that the judge had been entitled to take the view  that the intention of settling was the dominant intention and that the purpose of receiving  full-time education, although important, was 'ancillary'.

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

Wing Kew Leung v Imperial College  of Science, Technology and Medicine [2002] EWHC 1358 (Admin) (5 July 2002)

This is another case in which a student challenged a university's decision that  he had been ordinarily resident in the UK wholly or mainly in order to receive  full-time education.

The student and his family were granted British citizenship in May 1995.  His parents had worked in the UK since 1972 and returned to Hong Kong after having been  granted British citizenship. His older brother left Hong Kong in August 1990 and became  permanently settled in the UK in May 1995. The student had been at school in  Hong Kong but, in August 1995, when he was 14 years old, he came to the UK and enrolled that  September in a boarding school. He lived with his aunt and brother in a house bought by his parents  that was close to the school, but he continued boarding.

In 1996, his older brother was assessed as a 'home' fee payer,  and the student applied for a place at university starting in October 2000.  Although the student stated in the university's supplementary questionnaire  that his reason for living in the UK was "as country for residence, ie to settle",  the university did not accept the student's assertions at face value, and decided that  he was in the UK mainly in order to receive full-time education. This was for three  reasons:

  1. the student's self-assessed residential category on the UCAS form was  not the category for 'home' fee payers, although he did enter the fee code which applies  to most 'home' fee payers
  2. he started at boarding school very soon after having  arrived in the UK
  3. he was 14 years old when he arrived in the UK and his parents  remained in Hong Kong and supported him from there.

As the judge in this  case stated, "It is important to stress that my task is to see whether the decision  of the college to classify the claimant as an overseas student should be quashed  on public law grounds. It is not my function to determine whether I would have  reached the same decision as the college, or whether I would have used the same  reasoning process as that which was adopted by the college". In fact, a different  university did assess this student as a 'home' fee payer. The court's job was to  determine whether the college had misdirected itself, and it quoted the following  passage from the judgment of the Court of Appeal in Kent v University College London:

"The college or the court, as the case may be, is entitled to  evaluate [the claimant's own statements or declarations as to the  purpose of his residence and to his intention at any particular time]  in the light of the conduct of the person making them and the purpose  for which and the circumstances in which they are made. It is entitled  to scrutinise with care and to investigate evidence of purpose in order  to prevent an abuse of the system under which higher fees may lawfully  be charged to overseas students than to home students".

In this case, the college could demonstrate that it had  considered the student's arguments, which were not supported by  additional information or documents, but had found them to be  outweighed by other factors listed above. Therefore, the student's  challenge was unsuccessful.

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

R v Nottinghamshire County Council ex parte Jain CO/874/88 (QBD)

The facts of this case are summarised in Temporary employment outside the residence area. The student's father had worked in Zambia for an eight-year period, during most of which time the student was in boarding school in the UK. She spent her holidays in Zambia with her family, so she was refused a study award on the grounds that her main reason for being ordinarily resident in the UK was to receive full-time education. However, this was irrelevant if the father's employment were held to be temporarily outside the UK and Islands, a decision that had to be returned to the County Council.


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