In this post we will explore what the term 'ordinarily resident' means within UK immigration law. The term 'ordinarily resident' or 'ordinary residence' is quite a broad term which is not clearly defined within statute or within the Immigration Rules. Ordinary residence is relevant to a number of domains in the UK, such as immigration routes and accessing the NHS in England and Wales.
Where Can the Definition for Being 'Ordinarily Resident' Be Found?
"Ordinarily resident" is a term found within UK Immigration Law but it is not explicitly defined. For example, The Immigration Act 1971 and British Nationality Act 1981 state that a person is 'settled' in the UK if they are ordinarily resident in the UK without being subject to immigration time restrictions.
The term 'ordinarily resident' is not defined in the immigration or nationality acts. Similarly, it has not been defined in any Act of Parliament, nor has it been defined in the Immigration Rules. As stated by Lord Scarman in R (on the application of Shah) v Barnet London Borough Council [1983] 1 All ER 226:
"Ordinary residence is not a term of art in English law. But it embodies an idea of which Parliament has made".
What Is the Meaning of 'Ordinarily Resident'?
The leading case of R (on the application of Shah) v Barnet London Borough Council [1983] 1 All ER 226 provides the most substantial definition and meaning to the term 'ordinarily resident'. Lord Scarman said that in order to determine whether someone was ordinarily resident it must be asked whether they have:
"shown that he has habitually and normally resided in the UK from choice and for a settled purpose throughout the prescribed period, apart from occasional or temporary absences."
How Is 'Ordinary Residence' or Being 'Ordinarily Resident' Assessed?
The House of Lords found that the concept of ordinary residence implied:
- It is established if there is a regular habitual mode
of life in a particular place for the time being, whether
of short or long duration, the continuity of which
has persisted apart from temporary or occasional
absences, residence must be both:
- Voluntary;
- Adopted for a settled purpose;
- A person can be ordinarily resident in more than one country at the same time, distinguishing it from domiciled;
- Ordinary residence is proven more by objective evidence than evidence of an individual's state of mind at a point in time.
(However, in the case of R v Immigration appeal tribunal (ex parte Siggins) [1984] Imm AR 14, it was found that there are times when a court should use hindsight to consider whether a person's purpose has been followed up by their subsequent action. Thereby, assessing the individual's intentions or state of mind at that point in time.)
The Guidance on Nationality policy: assessing ordinary residence states that:
"a person's intentions or state of mind at the date on which they are seeking to be regarded as ordinarily resident in a particular place needs to be taken into account. As do their subsequent actions where they are relevant to that intention or state of mind. Where there is evidence, from either the time of the intention or subsequent actions which either bears out or contradicts an individual's claim to have been ordinarily resident, you must consider all of the available information to produce a balanced decision that will be defensible on challenge."
In, the Guidance for the Hong Kong BN(O) route the following 'features' are given to ordinary residence:
"Ordinary residence has the following features:
- it is a regular, habitual mode of life in a particular place
- its continuity has persisted despite temporary absences
- it may be of long or short duration
- it must be lawful
- it must have been adopted voluntarily
- it must be for a settled purpose"
The Guidance also states that periods of absence do not necessarily indicate a person's ordinary residence has ceased.
Who Cannot Be Considered as 'Ordinarily Resident'?
Unlawful Residence in the UK or in Breach of Immigration Laws
In R (on the application of Shah) v Barnet London Borough Council [1983] 1 All ER 226, Lord Scarman stated:
"If a man's presence in a particular place or country is unlawful, for example, in breach of the immigration laws, he cannot rely on his unlawful residence as constituting ordinary residence..."
Moreover, section 50(5) of the British Nationality Act 1981, states:
"It is hereby declared that a person is not to be treated for the purpose of any provision of this Act as ordinarily resident in the United Kingdom or in a [British overseas territory] at a time when he is in the United Kingdom or, as the case may be, in that territory in breach of the immigration laws."
Therefore, those considered to be in breach of immigration laws, such as overstayers, cannot be considered to be ordinarily resident in the UK.
Prisoners
Furthermore, as one of the components of ordinary residence is choosing to live in the UK, prisoners cannot be classified as ordinarily resident. A person who is in prison is not residing in the UK by choice and so cannot be considered to be ordinarily resident in the UK during their time in prison.
Which Immigration Routes Mention the Term 'Ordinarily Resident'?
There are several immigration routes that refer to ordinary residence within the Immigration Rules, as well as in statute/legislation. Those include:
- The Hong Kong British National (Overseas) route;
- The Ukrainian Sponsorship Scheme;
- and Naturalising as a British Citizen (British Nationality Act 1981);
Where Else Is 'Ordinary Residence' Relevant?
Ordinary residence is relevant for those accessing the NHS in England and Wales. As stated in previous blogs, an individual who is classified as being 'Ordinarily Resident' in the UK is entitled to full access to the NHS free of charge.
- "NHS Access: A Migrant's Guide to Healthcare in England"
- "Accessing the NHS in England as an Overseas Visitor"
Ordinary residence in the context of the NHS has been defined as "living in the UK on a lawful and properly settled basis for the time being".
Moreover, the GOV.UK website states:
"A person will only be ordinarily resident in the UK when that residence is lawful, adopted voluntarily, and for a settled purpose as part of the regular order of their life for the time being, whether of short or long duration.A person who is considered ordinarily resident in the UK must not be charged for relevant services."
Furthermore, British citizenship does not necessarily equate to ordinary residence. Only British citizens who are "living and settled in the UK" can be said to be ordinarily resident.
The UK Government has also provided an Ordinary Residence tool, which can be found here.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.