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Ordinarily resident status
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Ordinarily resident status is a concept in the law of the United Kingdom which affects entitlement to the National Health Service. It formerly affected taxation, but the concept of ordinary residence was abolished for the purposes of tax years 2013/14 onwards.[1]
Related concepts
[edit]Indefinite leave to remain and right of abode are related concepts in immigration law. A person who is a British citizen is not necessarily an ordinary resident in the UK. The policy relates to the Home Office hostile environment policy.
Guidance
[edit]The Department of Health and Social Care states:[2]
A person is ordinarily resident if they are living in the United Kingdom:
- lawfully
- voluntarily
- for settled purposes as part of the regular order of their life for the time being, whether for a long or short duration
Pre-settled or settled status for EEA/Swiss nationals [...] is required for EEA/Swiss nationals that were living or studying in the UK on or before 31 December 2020.
Guidance on implementing the overseas visitor hospital charging regulations is provided to assist NHS bodies to make and recover charges for NHS hospital treatment from chargeable overseas visitors.[3]
HM Revenue and Customs issued guidance (booklet HMRC 6) in respect of taxation which included reference to renting, leasing or buying property. This is not mentioned in the NHS guidance.[4]
The concept is also embedded in the National Health Service (Charges to Overseas Visitors) (Scotland) Regulations 1989.[5]
Law
[edit]"Ordinarily resident" has not been defined by Act of Parliament. It has been developed in case law. The leading case is R v. Barnet London Borough Council, Ex parte Nilish Shah, which was decided by the House of Lords in 1982.[6] The case was concerned with the meaning of ‘ordinary residence’ as used in the Education Acts. The five appellants were all students who had come to the UK to study. None of them had the right of abode in the United Kingdom. It established these principles:
Ordinary residence 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. The residence must be voluntary and adopted for "a settled purpose".
A person can be ordinarily resident in more than one country at the same time. This is not the case in respect of domicile.
Ordinary residence is proven more by evidence of matters capable of objective proof than by evidence as to state of mind.
Administration in the NHS
[edit]In October 2016, it was reported that the government had set a target of recovering £500 million a year from overseas visitors treated in NHS hospitals in England, which had been "refined" to £346m for 2017-18, according to the National Audit Office. £289m was collected in 2015–16 and £73m in 2012–13. The NAO reported that only 58% of hospital doctors knew some people were chargeable for NHS healthcare at all.[7] According to Joseph Meirion Thomas, a former cancer specialist at the Royal Marsden Hospital, failure to enforce the charging regulations is costing the British taxpayer £3 billion a year.[8]
Ireland
[edit]In the Republic of Ireland there is a similar concept. People who have lived in the Republic for a minimum of one year or intend to live there for a minimum of one year qualify for help with prescription charges.[9]
See also
[edit]References
[edit]- ^ "When does someone become ordinarily resident?". Tax guide for students. Archived from the original on 4 November 2016. Retrieved 2 November 2016.
- ^ "Ordinary Residence Tool" (PDF). Department of Health and Social Care. 7 May 2021. Retrieved 9 March 2023.
- ^ "NHS visitor and migrant cost recovery programme". UK Government, Health and social care. 8 October 2020. Retrieved 9 March 2023.
- ^ "When does someone become ordinarily resident?". Tax guide for students. Archived from the original on 4 November 2016. Retrieved 2 November 2016.
- ^ "Overseas Visitors". Scottish Government. Retrieved 23 May 2018.
- ^ "(1982) 81 LGR 305, 81 LGR 305, [1983] 2 WLR 16, [1982] UKHL 14, [1983] 2 AC 309, [1983] 1 All ER 226". United Kingdom House of Lords Decisions. Bailii. Retrieved 2 November 2016.
- ^ "NHS set to miss target on foreign patient costs". BBC News. 28 October 2016. Retrieved 2 November 2016.
- ^ "Cost of treating health tourists is killing the NHS, says Ross Clark". Daily Express. 31 October 2016. Retrieved 2 November 2016.
- ^ "Drugs Payment Scheme". Citizens's Information. 26 November 2018. Retrieved 24 March 2019.
Ordinarily resident status
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Definition and Criteria
Core Elements of Ordinary Residence
Ordinary residence under common law principles requires a person's physical abode in a specific location adopted voluntarily as part of their habitual mode of living.[3] This concept, lacking a statutory definition in key UK legislation such as the Care Act 2014, derives from judicial interpretation emphasizing factual presence over mere intention.[7] The test excludes scenarios where residence is compelled, such as institutional detention, or lacks integration into everyday routines.[8] The authoritative formulation appears in the House of Lords decision R v Barnet London Borough Council ex parte Shah 2 AC 309, where Lord Scarman articulated ordinary residence as "a man's abode in a particular place or country which he adopts voluntarily and for settled purposes as part of the regular order of his life for the time being, with some degree of continuity; apart from temporary or occasional absences of long or short duration."[9] This definition underscores four interrelated elements: voluntary choice of the location; adoption for purposes implying stability, such as family, employment, or community ties; embedding within the individual's routine existence; and maintenance through consistent occupancy, undisturbed by transient departures like holidays or business trips.[10] Physical presence constitutes an indispensable prerequisite, meaning a person cannot claim ordinary residence in a place solely through future intent or ownership without actual habitation there.[6] Courts assess continuity qualitatively, focusing on the overall pattern of life rather than precise durations, though sporadic or vagrant patterns fail the test.[11] For individuals with mental capacity, personal volition governs; for those lacking capacity, prior voluntary abode or responsible authority's placement may establish it, subject to statutory deeming provisions in contexts like adult social care.[7] In practice, these elements distinguish ordinary residence from mere visitor status or enforced stays, ensuring determinations align with the settled nature of the abode.[12] While the concept was eliminated for UK income tax from 6 April 2013 under the Statutory Residence Test, its core features endure in areas including social services eligibility, education fees, and immigration entitlements.[13] Judicial application remains fact-specific, weighing evidence of ties, duration, and purpose without rigid thresholds.[9]Distinctions from Temporary or Habitual Residence
Ordinary residence requires a voluntary, habitual mode of life in a place adopted as a settled abode for a specific purpose, such as employment or family ties, allowing for temporary absences but excluding transient or enforced stays without expectation of continuity.[3] This distinguishes it from temporary residence, which involves incidental or short-duration presence—such as holidays, business trips, or involuntary detention—lacking the regularity and settled purpose integral to ordinary residence, even if such stays are repeated without forming part of one's usual life order.[14] For instance, in UK case law like Levene v IRC (1928), seasonal visits to the UK for religious purposes did not constitute ordinary residence despite physical presence, as they were temporary and purposeless beyond the immediate occasion.[10] Habitual residence, by contrast, emphasizes factual patterns of regular living and durable ties to a location as the objective center of a person's interests, often without the same explicit requirement for a voluntary settled purpose found in ordinary residence under common law.[15] In UK contexts, such as pre-2013 taxation or social security, ordinary residence demanded integration into the "settled routine of life" with lawful choice, potentially ceasing only after three consecutive years of non-residence in Ireland's aligned rules, whereas habitual residence—prevalent in EU regulations and family law—prioritizes acclimatization and normalcy over intent, allowing quicker establishment through consistent presence alone.[16][17] Judicial determinations, like those under the Care Act 2014, reinforce that ordinary residence turns on perceived connection and habitual choice, not mere time logged, setting it apart from habitual residence's more flexible, evidence-based assessment in cross-border disputes.[8] Thus, a person could be habitually resident through routine visits but not ordinarily resident absent a purposeful life commitment.Factors Influencing Determination
The determination of ordinary residence hinges on whether an individual's presence in a location constitutes a voluntary adoption of abode for settled purposes as part of the regular order of their life, irrespective of duration.[10] This principle, established in R v Barnet London Borough Council ex parte Shah 2 AC 309, emphasizes factual analysis over strict time thresholds, requiring habitual continuity rather than mere physical presence.[6] Compulsory stays, such as detention or hospital admission without intent to settle, do not qualify, as residence must be freely chosen and not transient or aimless.[10] Key indicators include the purpose of residence, assessed through evidence of ties and intentions. Settled purposes commonly encompass employment, self-employment, job-seeking, education, or family reunification, provided they demonstrate an expectation of ongoing integration into local life.[5] For instance, enrolling children in UK schools or registering as a primary carer signals continuity, while purposes like tourism, short-term business travel, or seeking medical treatment alone do not suffice.[18] Lawful immigration status is prerequisite; overstaying visas or unlawful entry precludes ordinary residence, as confirmed in cases like Arogundade v Foyle EWCA Civ 823.[10] Duration and regularity of presence contribute to the assessment, with stays exceeding six months strengthening claims when paired with intent to remain for the foreseeable future.[5] Temporary absences, such as for holidays or overseas work, do not disrupt status if UK ties persist, evidenced by factors like maintained housing, utility payments, or council tax liability.[6] Familial and economic connections—such as cohabitation with UK-resident relatives, active UK bank accounts with regular transactions, or property ownership—further indicate habitual residence over dual or nominal ties abroad.[18] In contexts like NHS eligibility or social care under the Care Act 2014, determinations weigh evidential clusters rather than isolated factors; no single element is decisive, but cumulative proof of voluntary settlement prevails.[5] For EEA/Swiss nationals pre-Brexit, forms like S1 healthcare reimbursement could affirm settled purpose if linked to pensioner status or prior contributions.[18] Disputes often resolve via Secretary of State determinations, prioritizing objective conduct over subjective declarations.[6]Historical Development
Origins in Common Law
The concept of ordinary residence emerged in English law through the interpretation of early taxation statutes, with the phrase first appearing in the Income Tax Act 1806, where it distinguished habitual presence from mere temporary or occasional stays.[19] This statutory usage reflected a need to identify individuals whose regular life patterns aligned with the United Kingdom for liability purposes, contrasting with transient visits that did not disrupt the ordinary course of residence elsewhere.[19] Courts applied common law principles to ascertain its meaning, treating it not as a rigid term of art but as embodying continuity in a person's settled mode of living, excluding interruptions deemed accidental or purposeful but non-permanent.[19] The foundational judicial exposition occurred in Levene v Inland Revenue Commissioners AC 217, where the House of Lords addressed whether a British subject spending most of each year abroad for business, yet returning to the UK annually for 4-5 months to maintain a family home and religious ties, qualified as ordinarily resident.[19] Viscount Cave LC emphasized that ordinary residence imports "residence of a substantial character," involving habitual or periodical returns as part of one's regular order of life, rather than a strict numerical tally of days.[19] The Lords upheld the taxpayer's ordinary residence in the UK based on factual evidence of enduring connections and predictable patterns, rejecting arguments that predominant time abroad negated it absent intent to abandon UK roots.[19] Lord Warrington reinforced this by noting the term's non-technical nature, discerned from the overall tenor of an individual's circumstances rather than isolated factors.[19] This Levene test established ordinary residence as a factual inquiry into degree and quality, requiring evidence of settled purpose and continuity over sporadic or adventitious presence.[20] Prior usages in 19th-century Income Tax Acts had implicitly relied on similar common law notions of habitual abode, but Levene crystallized the criteria amid increasing mobility, influencing applications beyond taxation to areas like nationality and welfare.[19] Subsequent cases affirmed that one could hold multiple ordinary residences if life patterns supported regular habitation in each, provided none were merely casual.[20] The doctrine thus prioritized empirical patterns of behavior over subjective intent alone, grounding determinations in observable regularities verifiable through records of presence, ties, and purpose.[19]Evolution in UK Legislation
The concept of ordinary residence was first statutorily embedded in UK welfare legislation through the National Assistance Act 1948, which imposed duties on local authorities to provide accommodation and services to persons in need, with responsibility allocated to the authority of the person's ordinary residence under section 24(5). Disputes over ordinary residence were to be resolved by the Minister of Health pursuant to section 32(3), establishing a framework to prevent fragmented local authority obligations in the nascent welfare state. This marked a shift from purely common law principles to statutory application, tying resource allocation to a habitual, settled abode rather than mere physical presence. Subsequent legislation extended the test to health and education. The National Health Service Act 1946 initially framed access to services based on residence, but regulations under later NHS frameworks, such as the NHS (Charges to Overseas Visitors) Regulations 1989, incorporated ordinary residence to determine eligibility for free treatment, excluding temporary visitors and requiring a voluntary settled purpose in the UK. Similarly, the Education Act 1962 (as amended) used ordinary residence for three years preceding application to assess home student status for fee purposes, with the requirement codified in subsequent regulations like the Education (Student Fees) (Amendment) (England) Regulations 2007. Immigration and nationality laws further legislated the concept in the 1970s and 1980s. The Immigration Act 1971 defined a person as "settled" in the UK if ordinarily resident there without immigration restrictions, under section 33(2), facilitating indefinite leave to remain assessments. The British Nationality Act 1981 reinforced this in section 50(2), linking settlement to ordinary residence free of time limits, influencing citizenship and rights derivations. For taxation, ordinary residence appeared in statutes like the Income Tax Act 1952 (section 18), distinguishing it from mere residence to determine worldwide income liability, but relied heavily on judicial gloss until its partial reform. The test persisted across domains until targeted changes, such as the Care Act 2014, which preserved it for adult social care under section 39 while clarifying that local authority-funded moves to specified accommodation do not alter ordinary residence, aiming to ensure continuity of funding responsibilities. This evolution reflects legislative intent to balance fiscal accountability with equitable service provision, adapting common law roots to statutory precision amid expanding public entitlements.Abolition for UK Taxation Purposes
The concept of ordinary residence was abolished for determining liability to UK income tax and capital gains tax with effect from 6 April 2013, pursuant to Schedule 45 to the Finance Act 2013.[21][22] This abolition eliminated the prior distinction under which individuals who were UK resident but not ordinarily resident were liable only on UK-source income and gains, whereas those ordinarily resident faced taxation on worldwide income and gains (subject to domicile rules).[23] The change aligned tax residency solely with the new Statutory Residence Test (SRT), which applies objective criteria including days spent in the UK, ties to the country (such as family, accommodation, and work), and automatic overseas tests for those working full-time abroad.[24][25] The abolition addressed longstanding uncertainties in the common law-based ordinary residence test, which depended on subjective factors like the regularity and purpose of UK visits, often leading to disputes and inconsistent outcomes.[26][27] Under the pre-2013 regime, an individual could be deemed ordinarily resident if habitually returning to the UK as a "home," even with limited physical presence, but the lack of statutory definition fostered ambiguity, particularly for expatriates or Crown servants.[28] The SRT's introduction aimed to provide greater clarity and predictability, reducing reliance on HMRC discretion and judicial interpretation.[29] Transitional provisions applied for tax years up to 5 April 2016 to mitigate disruptions, particularly for remittance basis users and those previously treated as not ordinarily resident.[28][23] For instance, individuals ceasing ordinary residence before 6 April 2013 could elect split-year treatment under the SRT for up to three years, allowing partial-year non-residence based on prior status.[30] Specific regulations, such as the Income Tax (Removal of Ordinary Residence etc.) Regulations 2013 and parallel capital gains tax rules, revoked ordinary residence references in prior statutes like the Income and Corporation Taxes Act 1988 and Taxation of Chargeable Gains Act 1992.[31][26] Although ordinary residence persists for non-tax purposes (e.g., NHS eligibility), its tax irrelevance post-2013 simplified compliance but required affected taxpayers to reassess status under the SRT, with HMRC guidance emphasizing documentary evidence of ties and days spent.[21][32]Legal Framework
United Kingdom Statutes and Regulations
In the United Kingdom, ordinary residence is referenced in several statutes and regulations primarily to allocate responsibilities for health, social care, and related public services, though it lacks a comprehensive statutory definition and draws on judicial interpretations for application.[33] The concept determines which local authority funds care or whether individuals qualify for free National Health Service (NHS) treatment, with provisions designed to prevent disputes over funding by tying residence to pre-existing ties or voluntary settlement. The Care Act 2014, enacted on 1 April 2015, governs ordinary residence for adult social care under Part 1, imposing duties on local authorities to meet needs only for those ordinarily resident in their area. Section 39 specifies rules for adults whose needs require accommodation of a type defined in regulations, deeming them ordinarily resident in the area of their prior ordinary residence (or presence if none) before the move, to preserve continuity and avoid shifting burdens between authorities.[33] This applies to consecutive periods in such accommodation from the initial entry, with exceptions for placements under the Mental Health Act 1983 (section 117 aftercare), where residence aligns with the responsible local authority, or NHS continuing care, reverting to pre-accommodation residence.[33] The Care and Support (Ordinary Residence) (Specified Accommodation) Regulations 2014, effective from 1 April 2015, identify qualifying accommodation as care homes under the Care Standards Act 2000, shared lives schemes providing personal care, and supported living settings adapted for independent living with care support, applicable only where needs are met under the Care Act.[34] Disputes under these provisions are resolved by the Secretary of State for Health and Social Care, whose determinations are binding unless successfully challenged judicially.[7] For NHS access, the National Health Service Act 2006 (as amended) under section 175 classifies "overseas visitors" as persons not ordinarily resident in the UK, subjecting them to charges for secondary care services unless exempt. The National Health Service (Charges to Overseas Visitors) Regulations 2015, in force from 6 April 2015, operationalize this by requiring upfront charging for non-urgent treatment provided to overseas visitors, with exemptions for those ordinarily resident or holding certain immigration statuses like indefinite leave to remain, refugees, or armed forces members.[35] Regulations 11 and 13 outline transitional and general exemptions, linking ordinary residence to lawful settlement without immigration restrictions, while directing recovery of costs from non-residents and prohibiting treatment deferral based on payment ability.[36] These rules, amended periodically (e.g., in 2023 to adjust for EU Settlement Scheme applicants), emphasize factual presence for settled purposes over temporary stays. In social security contexts, ordinary residence appears in legacy provisions but has been supplemented by the habitual residence test under the Social Security Administration Act 1992 and Immigration and Asylum Act 1999, which limits benefits to those with a right to reside and established UK ties. For instance, child benefit eligibility under the Social Security Contributions and Benefits Act 1992 requires the claimant to be ordinarily resident, interpreted as habitual living without defining legislation, though post-2013 tax reforms abolished it for income tax via the statutory residence test. The Children Act 1989 further uses ordinary residence in section 105(6) to determine local authority duties for child protection, aligning with Care Act principles for minors in care placements. Across these, statutes prioritize evidence of voluntary, settled abode over mere physical presence, with local authorities bearing assessment burdens.[6]Irish Tax and Residency Rules
In Ireland, tax residency for individuals is determined under Section 819 of the Taxes Consolidation Act 1997 (TCA 1997). An individual is considered tax resident for a given tax year (which aligns with the calendar year) if they are present in Ireland for 183 days or more during that year, or for a combined total of 280 days or more across the current tax year and the immediately preceding tax year, provided that the number of days in each of those years is not less than 30.[37][38] Presence is counted for any part of a day spent in Ireland, excluding mere transit through the state.[38] Ordinary residence, governed by Section 820 of the TCA 1997, is a distinct concept from mere tax residency and reflects a settled pattern of residence over time. An individual becomes ordinarily resident in Ireland at the commencement of the tax year following three consecutive years of tax residency, irrespective of their residency status in that fourth year.[39][40] Ordinary residence persists for three consecutive tax years after the individual ceases to be tax resident, ceasing only at the end of the third such non-resident year.[39][40] This rule applies without regard to domicile, which is assessed separately as the country regarded as the individual's permanent home based on intention and factual connections.[41] Changes to domicile are not applied retrospectively or retroactively. Domicile of choice is a factual legal concept acquired by an individual leaving their domicile of origin and settling in a new country with clear evidence of intent to reside there permanently; the change takes effect prospectively from the point these conditions are met, based on intention and actions, with no provision for backdating.[41] The interplay of residency, ordinary residence, and domicile determines the scope of Irish tax liability on income and capital gains. Tax residents—whether ordinarily resident or not—are generally liable to Irish income tax on their worldwide income, though non-domiciled residents may claim the remittance basis, taxing only Irish-source income and remitted foreign income.[42] Non-residents who are not ordinarily resident are taxed solely on Irish-source income, such as income from Irish employment, property, or trades carried on in Ireland.[42] However, non-residents who remain ordinarily resident face broader liability: they are taxed on worldwide income (subject to remittance basis if non-domiciled), excluding certain categories such as income from trades or professions not exercised in Ireland, employment income where duties are performed wholly abroad (barring incidental Irish duties), and foreign securities income up to a de minimis threshold of €3,810 annually (with amounts exceeding this fully taxable regardless of remittance).[40] For capital gains tax, non-residents who are ordinarily resident and domiciled in Ireland are liable on worldwide gains, while other non-ordinarily resident non-residents are taxed only on gains from Irish-situated assets.[40] These rules are subject to relief under double taxation agreements, which Ireland maintains with over 70 countries to allocate taxing rights and provide credits for foreign taxes paid.[42] Split-year treatment may apply in the year of arrival or departure, treating individuals as non-resident for the post-arrival or pre-departure period for foreign income purposes, provided they meet specific conditions like permanent relocation.[43] Revenue Commissioners administer these rules through self-assessment, with determinations based on factual evidence of presence and intent; disputes are resolved via appeal to the Tax Appeals Commission.[40]Judicial Interpretations
In the United Kingdom, judicial interpretations of ordinary residence originated in early 20th-century tax disputes, where courts distinguished it from mere residence by emphasizing habitual patterns and continuity. In Levene v Inland Revenue Commissioners AC 217, the House of Lords held that ordinary residence refers to the place where a person's life is "usually ordered" with a degree of regularity and continuity, unbroken by temporary absences for business or pleasure, such as seasonal visits abroad.[44] This established that ordinary residence implies a settled mode of living, not disrupted by short-term deviations. A landmark clarification came in R v London Borough of Barnet, ex parte Shah 2 AC 309, where the House of Lords ruled that ordinary residence requires voluntary adoption of a residence for a settled purpose, integrated into the regular order of one's life, rather than compelled or transient presence.[10] The case involved overseas students seeking education grants; the court rejected claims based solely on physical presence without intent to settle, deeming unlawful immigration status disqualifying for such residence.[45] This test—focusing on voluntariness, continuity, and purpose—has influenced non-tax applications, including eligibility for public services, though it excludes involuntary stays like detention or unauthorized presence.[10] In social care contexts, the Supreme Court in R (Cornwall Council) v Secretary of State for Health UKSC 46 refined the test for incapacitated individuals.[46] The ruling addressed a severely disabled adult lacking capacity, placed by local authorities across counties; the majority held that ordinary residence adheres to the pre-placement location (Wiltshire in this instance), as public authority-funded accommodations do not voluntarily shift it, preventing "exportation" of fiscal responsibility.[47] This principle prioritizes the individual's factual ties over administrative arrangements, applying under statutes like the National Assistance Act 1948.[46] Subsequent cases extended these principles to mental health aftercare under section 117 of the Mental Health Act 1983. In a 2023 Supreme Court decision, the court determined ordinary residence by reference to the location immediately preceding the person's last relevant detention, rejecting shifts caused by compulsory measures and affirming voluntariness as core.[48] For student support, R (Tigere) v Secretary of State for Business, Innovation and Skills UKSC 57 confirmed that only lawful, settled ordinary residence qualifies for loans, excluding those on temporary visas despite long-term UK presence.[10] These interpretations underscore a fact-specific inquiry, resistant to manipulation via public placements or immigration status. In Ireland, judicial scrutiny of ordinary residence is less voluminous, often deferring to statutory tax definitions where it arises after three years of residency, but courts apply similar continuity tests in civil matters. In SC v BT , the High Court required objective, enduring ties throughout the relevant period for cohabitant redress claims, rejecting intermittent presence as insufficient for ordinary residence.[49] The "Flatley test" from security-for-costs decisions further assesses it via factors like duration, intent, and domestic assets, emphasizing habitual settlement over nominal claims.[50] Overall, Irish courts align with common-law roots but prioritize evidentiary ties in disputes over entitlements.Primary Applications
Access to National Health Service in the UK
Individuals classified as ordinarily resident in the United Kingdom qualify for free National Health Service (NHS) secondary care services, including hospital treatments, without charge.[51][52] Ordinary residence in this context requires living lawfully and voluntarily in the UK for settled purposes as part of one's regular order of life, with sufficient continuity and excluding temporary or occasional absences.[5][52] For British citizens, ordinary residence is established if they reside in the UK for settled purposes, irrespective of prior absences, provided the return aligns with habitual patterns.[5] Non-British or Irish nationals subject to immigration control—typically those without automatic right to reside—must possess indefinite leave to remain (ILR), settled status under the EU Settlement Scheme (EUSS), or equivalent indefinite permission to be deemed ordinarily resident.[5][52] Pre-settled status under EUSS, granted to eligible European Economic Area (EEA) or Swiss nationals resident by 31 December 2020, does not confer ordinary residence, as it represents temporary permission; eligibility requires progression to settled status after five years of continuous residence.[5] These rules stem from amendments under the Immigration Act 2014, effective from 6 April 2015, which restricted entitlements for those on temporary visas or subject to control without settled status.[52] Primary care services, such as general practitioner registrations and consultations, remain free for all individuals lawfully present in the UK, without requiring proof of ordinary residence.[51][53] Individuals not ordinarily resident, such as short-term visitors or those on temporary visas without paying the immigration health surcharge, face charges for non-exempt secondary care at 150% of NHS costs, though urgent treatment is provided upfront with billing pursued afterward.[52] Exemptions from charges apply to specific services like initial A&E assessments, treatment for infectious diseases (e.g., tuberculosis), or family planning, regardless of residence status.[52] NHS bodies assess ordinary residence using guidance tools that evaluate evidence including employment contracts, rental agreements, utility bills, and children's school enrollments to confirm settled intent and continuity.[5] For EEA or Swiss nationals applying under EUSS, the scheme's deadline was 30 June 2021 for late student applications, with status determinations influencing residence classifications from 1 July 2021 onward.[5] Those paying the immigration health surcharge on visas exceeding six months access secondary care as if ordinarily resident during their permission period, but this does not equate to settled ordinary residence status.[51]Social Care Funding and Local Authority Obligations
Under the Care Act 2014, the local authority in whose area an adult is ordinarily resident bears the primary statutory duty to meet that adult's eligible needs for care and support, including funding arrangements after means-testing. This obligation applies to adults aged 18 and over with physical, mental, or sensory impairments, or who require support due to age-related conditions, provided their needs arise from or are related to a disability. Ordinary residence establishes the "main home" of the individual, serving as the jurisdictional basis for funding allocation and preventing disputes over financial responsibility among councils.[6] Section 39 of the Care Act specifies that an adult provided with accommodation (such as a care home) to meet care needs is ordinarily resident in the area of the local authority that arranged the placement, unless the accommodation was provided in another authority's area without the adult's agreement or against their wishes, in which case residence remains with the original authority.[33] Funding obligations include direct payments, service procurement, or personal budgets, capped by national eligibility thresholds and financial assessments under sections 13 and 17; for instance, in 2023-2024, local authorities funded approximately £32 billion in adult social care expenditure across England, with ordinary residence disputes accounting for a notable portion of inter-authority financial adjustments.[6] Authorities must also support carers of ordinarily resident adults under section 20, assessing their needs independently. Where an adult lacks settled ordinary residence but is physically present in the area, the local authority retains a duty to meet urgent needs temporarily (up to six weeks under continuity provisions) and eligible needs if no other authority accepts responsibility, as clarified in statutory guidance.[54] For adults funded by the NHS (e.g., continuing healthcare), ordinary residence for social care elements defaults to the authority funding non-NHS elements, but NHS-funded continuing care patients are treated as ordinarily resident where they receive accommodation.[33] Disputes over ordinary residence, which must not delay care provision, are resolved by the Secretary of State for Health and Social Care under section 40, with determinations binding and enforceable via financial adjustments between councils—over 100 such cases were adjudicated annually as of 2020 data.[55] Local authorities face enforcement risks for failing these obligations, including judicial review; for example, in cases involving placements across borders, courts have upheld that voluntary moves do not shift residence if intent to return exists, reinforcing funding continuity.[6] Means-tested contributions from individuals are calculated based on assets over £14,250 (as of April 2024), with the authority covering the balance for eligible needs, though full self-funders may later qualify for retrospective support if assets deplete.[54] This framework ensures targeted public funding while allocating burdens according to established ties, though it excludes those subject to immigration control without indefinite leave from ordinary residence status for charging purposes in some contexts.[5]Taxation and Benefits in Ireland
In Ireland, ordinarily resident status for tax purposes is determined by an individual's pattern of tax residency over multiple years, distinct from mere physical presence in a given year. An individual becomes ordinarily resident from the commencement of the fourth tax year following three consecutive years of tax residency, where tax residency requires presence in Ireland for at least 183 days in a tax year or 280 days across the current and preceding tax year.[37][39] This status persists for three consecutive tax years after ceasing to be tax resident, reflecting an enduring connection to Ireland beyond temporary absences.[39] Ordinarily resident status significantly influences Irish income tax liability, particularly for those who are non-resident but retain ties to the state. A non-resident who is ordinarily resident and domiciled in Ireland is liable to Irish tax on worldwide income, excluding certain categories such as income from trades or professions not exercised in Ireland, employment duties performed entirely abroad, or foreign investment income up to €3,810 annually (with the full amount taxable if exceeding this threshold).[56][40] For non-residents who are ordinarily resident but not domiciled, liability extends to Irish-sourced income and foreign income remitted to Ireland. In contrast, full tax residents (regardless of ordinary residence) who are domiciled face taxation on worldwide income, while non-domiciled residents are taxed on Irish-sourced income plus remitted foreign income. These rules, codified in section 820 of the Taxes Consolidation Act 1997, aim to capture ongoing economic links but allow relief under double taxation agreements for foreign income taxed abroad.[40][38] Capital gains tax (CGT) also incorporates ordinarily resident status, with non-residents who are ordinarily resident liable on gains from Irish-situated assets, such as land or shares in Irish companies deriving value from Irish land.[40] Domicile levy considerations may apply to ordinarily resident individuals with Irish-domiciled worldwide income exceeding €1 million, imposing a 6% charge on non-remitted foreign income above a €200,000 exemption, though this targets high-net-worth cases.[41] Regarding benefits, ordinarily resident status governs eligibility for public health services administered by the Health Service Executive (HSE), requiring individuals to demonstrate they are living in Ireland with intent to reside for at least one year.[57] The HSE assesses this via evidence such as utility bills, property leases, or official documents dated within the prior 12 months, granting full eligibility (e.g., medical cards for low-income ordinarily resident persons) or limited eligibility otherwise. Non-EEA nationals, including dependants, must satisfy this for routine care, while EU/EEA citizens and UK pensioners may qualify without it if covered by reciprocal arrangements. In contrast, cash social welfare payments under the Department of Social Protection, such as jobseeker's allowance, employ the habitual residence condition rather than ordinary residence, evaluating future residency intentions, employment history, and right to reside independently.[57][58] This distinction ensures health entitlements hinge on established patterns akin to tax ordinary residence, while welfare focuses on immediate settlement prospects to prevent short-term claims.Administration and Enforcement
Official Guidance and Assessment Processes
In the United Kingdom, official guidance on ordinarily resident status for non-tax purposes, such as eligibility for free National Health Service (NHS) secondary care, defines it as normally residing in the UK (apart from temporary absences) with residence adopted voluntarily for settled purposes as part of the regular order of life.[3] [52] This entitlement applies regardless of nationality or tax payments, provided the individual lives lawfully and settled in the UK without an overriding purpose to leave.[52] For those subject to immigration control, indefinite leave to remain or equivalent status is generally required to establish ordinary residence.[5] Assessment processes for NHS eligibility involve frontline providers, such as hospitals, using the Department of Health and Social Care's settled purpose tool, which prompts evaluation of evidence including duration of stay, accommodation details, employment or family ties, travel history, and immigration documents.[5] Factors like intent to make the UK home and absence of temporary visit purposes (e.g., tourism or short-term work) are weighed, drawing on case law such as R v London Borough of Barnet ex parte Shah (1983), which emphasizes habitual residence over mere physical presence.[10] Disputes may escalate to NHS England's Overseas Visitors Charging Team for verification.[5] Under the Care Act 2014, local authorities assess ordinary residence to determine responsibility for adult social care funding, focusing on the individual's main or habitual home at the point of need, unaffected by prior NHS hospital stays unless the person has capacity and intends permanent relocation.[8] Guidance from the Local Government Association requires holistic review of ties (e.g., property ownership, community integration, and family location), with assessments documented via needs evaluations and financial means tests; where disputed, local authorities notify the Secretary of State for resolution within statutory timelines.[6] For taxation, HMRC abolished ordinary residence as a distinct category from 6 April 2013, replacing it with the statutory residence test, though pre-2013 guidance retrospectively applied a "regular habitual mode of life" standard for transitional cases up to three years post-departure.[59] [60] In Ireland, Revenue Commissioners' guidance defines ordinary residence for tax purposes as arising automatically after three consecutive years of tax residency, commencing at the start of the fourth year, and persisting for three years after ceasing tax residency.[39] Tax residency itself is assessed quantitatively: presence for 183 or more days in a tax year, or 280 days aggregated over the current and prior year (with at least 30 days in the current year).[42] Self-assessment via tax returns drives the process, with Revenue verifying through passport stamps, employment records, or utility bills if audited, applying the rule strictly without qualitative intent tests unless domicile alters worldwide income taxation.[40] For Irish social welfare benefits, ordinary residence is not the primary test; instead, the Department of Social Protection enforces the habitual residence condition for means-tested payments, assessed via decison-makers reviewing right to reside, employment prospects, family circumstances, and settlement intentions through interviews and document submission (e.g., proof of address and job search evidence).[61] Appeals proceed to the Social Welfare Appeals Office, with guidance emphasizing empirical ties over formal years of presence.[62]Verification in Practice
In the United Kingdom, verification of ordinary resident status typically occurs through case-by-case assessments by relevant authorities, relying on objective evidence of voluntary, lawful residence for a settled purpose with sufficient continuity, as established in judicial precedents such as R v London Borough of Barnet ex parte Shah (1983). For National Health Service (NHS) eligibility, healthcare providers apply a settled purpose tool that evaluates factors including duration of stay (e.g., six months or more), intention to remain, stable housing, employment or job-seeking status, and family or educational ties; supporting documents such as bank statements, employment contracts, tenancy agreements, utility or council tax bills, and school letters are required to demonstrate these elements.[5] [63] For nationality and immigration applications, UK Visas and Immigration (UKVI) caseworkers and HM Passport Office examiners scrutinize objective indicators like length of residence, underlying purpose (e.g., work, study, or family reunification), and handling of temporary absences, prioritizing factual actions over stated intentions; evidence includes immigration records, employment history, and proof of maintained ties such as property ownership or family presence.[64] [63] In social care contexts under the Care Act 2014, local authorities conduct pre-assessment reviews using similar documentary proofs (e.g., address histories, benefit claims) to determine the responsible authority, often resolving ambiguities via internal guidance before escalating disputes to the Secretary of State for Health and Social Care.[6] [65] Benefit agencies like the Department for Work and Pensions apply the Habitual Residence Test alongside ordinary residence checks, verifying via interviews, right-to-reside documentation, and proofs such as council tax records or universal credit statements to confirm settled intent beyond mere physical presence.[66] [67] Challenges arise in cases of homelessness or recent arrivals, where authorities may accept alternative indicators like regular stays or S1 forms, but false declarations can lead to charging or recovery actions.[5] In Ireland, verification of ordinary resident status for tax purposes under Revenue rules is primarily self-assessed through annual tax returns declaring days of presence, with ordinary residence deemed to commence after three consecutive years of tax residency (defined by 183 days in a year or 280 days over two years); supporting evidence includes travel records or employment details if queried.[39] [42] During compliance interventions or audits, Revenue examiners review books, records, and third-party data (e.g., immigration stamps or bank transactions) to validate residency patterns, potentially imposing penalties for discrepancies, though routine upfront document submission is not mandated absent suspicion.[68] [69] For benefits, similar self-declaration applies, cross-checked against registration permissions from the Irish Naturalisation and Immigration Service, which involve biometric verification and stamping.[70]Dispute Resolution Mechanisms
In the United Kingdom, disputes over ordinary residence status primarily arise between local authorities in the context of social care funding under the Care Act 2014, where one authority must provide interim care and support to prevent unmet needs during resolution.[6] The Care and Support (Disputes Between Local Authorities) Regulations 2014 outline a structured procedure: disputing authorities must first attempt informal resolution through dialogue and evidence sharing, submitting any formal legal arguments within 14 days of referral if needed.[71] [72] If unresolved, the dispute escalates to the Secretary of State for Health and Social Care, who issues a binding determination based on statutory guidance, with over 100 anonymized cases published annually to inform practice as of 2020.[65] [55] Parties dissatisfied with the determination may seek judicial review in the High Court, though such challenges succeed only on grounds of illegality, irrationality, or procedural unfairness, as established in cases like R (on the application of Hertfordshire County Council) v Secretary of State for Health (2017).[73] For National Health Service (NHS) access disputes involving ordinary residence, similar inter-authority protocols apply under the National Health Service Act 2006, with escalation to the Secretary of State if local resolution fails, ensuring continuity of secondary care funding.[65] Local authorities are required to cooperate fully, including joint visits or shared assessments, and must notify the individual of their rights throughout, per statutory guidance updated in 2019.[72] In Ireland, disputes concerning ordinary residence for taxation and benefits are handled through Revenue Commissioners' determinations, with appeals lodged under section 824 of the Taxes Consolidation Act 1997 within two months of the decision notice.[40] The Tax Appeals Commission (TAC) then conducts hearings, often oral with at least six weeks' notice unless agreed otherwise, adjudicating on facts like days present or ties to Ireland, as in determinations affirming ordinary residence based on habitual patterns despite claims of non-residency (e.g., TAC case 84TACD2023).[74] [75] TAC decisions are binding unless appealed to the Circuit Court or higher judiciary on points of law, with the process emphasizing evidence over presumptions, though Revenue's initial assessments carry weight absent contrary proof.[40] For social welfare benefits tied to residency, appeals follow the Social Welfare Appeals Office procedure, mirroring tax routes but focused on habitual residence tests under the Social Welfare Consolidation Act 2005.Controversies and Criticisms
Alleged Exploitation by Migrants and Expats
Critics, including migration policy analysts, have claimed that certain migrants circumvent ordinary residence requirements to access free National Health Service (NHS) treatment in the UK by providing misleading evidence of settlement, contributing to health tourism estimated at £300-400 million annually in unrecovered costs from unidentified overseas users.[76] A 2013 Department of Health analysis quantified potential NHS expenditures on non-ordinarily resident visitors and migrants, finding that while precise abuse is hard to measure due to incomplete data, short-term visitors accounted for notable unpaid inpatient episodes, with maternity services particularly affected at around £15-20 million yearly.[77] The NHS Counter Fraud Authority has highlighted vulnerabilities, such as the use of false documentation to falsely establish ordinary residence, enabling ineligible individuals—including some migrants—to evade charges for secondary care.[78] Expats, particularly British nationals living abroad, face similar scrutiny for allegedly maintaining nominal UK ties, such as retaining addresses or making periodic returns, to preserve ordinary residence status for NHS entitlements despite primary residence overseas. Official guidance states that permanent relocation abroad ends automatic eligibility, yet enforcement relies on self-declaration and spot checks, prompting claims of lax verification that allow intermittent "treatment tourism."[52] In practice, this has led to reported cases of expats scheduling elective procedures during UK visits, with think tanks arguing that the absence of robust exit tracking facilitates such patterns, though empirical data on prevalence remains limited by underreporting in official statistics.[79] In Ireland, allegations of exploitation center on asylum seekers leveraging court interpretations of residence status to access domiciliary care and benefits prematurely, as affirmed by a 2021 High Court ruling declaring asylum seekers' "normal residence" as Ireland upon lawful entry, thereby qualifying them for local authority support without extended habitual ties.[80] This decision, while legally binding, has drawn criticism for potentially incentivizing short-term claims, especially amid reports of asylum seekers crossing from the UK to pursue higher welfare entitlements, with border authorities intercepting hundreds attempting dual claims in 2025.[81] Such practices strain resources, as Ireland's habitual residence condition—analogous to ordinary residence for social welfare—requires demonstrating intent to settle, yet rapid approvals for migrants have fueled debates over systemic leniency, with conservative outlets attributing burdens to policy gaps rather than isolated fraud.[82] Mainstream analyses often minimize these issues, potentially reflecting institutional reluctance to highlight migration-related costs.Financial Burdens on Public Services
The ordinarily resident status, by conferring eligibility for free access to public services such as the UK's National Health Service (NHS), has drawn criticism for enabling recent arrivals to utilize high-cost provisions without commensurate prior tax contributions, thereby imposing net fiscal burdens on resident taxpayers. Analysis of immigration's fiscal impact reveals that non-EEA migrants, who may qualify for this status following settlement, have historically generated significant costs; a University College London study estimated the net fiscal drain from all immigrants between 1995 and 2011 at least £114 billion, equivalent to approximately £18 million daily, largely due to welfare and service usage exceeding tax revenues.[83] This pattern persists in broader public expenditures, where low-skilled and family migration routes—often leading to ordinarily resident eligibility—result in lifetime net costs, contrasting with selective high-skilled inflows. Recent assessments underscore ongoing pressures, particularly on the NHS, where ordinarily resident migrants access secondary care free of charge after establishing habitual presence, contributing to unrecovered overseas patient debts exceeding £500 million in some fiscal years and overall migrant-related health spending strains amid total NHS outlays of £184.2 billion for 2023/24. The Centre for Policy Studies projects that unchanged indefinite leave to remain policies—tied to pathways for ordinarily resident status—could yield a £234 billion lifetime net fiscal cost from post-2020 migration waves, factoring in demands on housing, education, and social care that outpace contributions from non-working or low-earning arrivals.[84] While the Migration Advisory Committee notes a positive £16,300 net fiscal impact per skilled worker visa holder, this benefit is offset by negative contributions from humanitarian and dependent migrants who gain service access upon residency thresholds, amplifying per-capita burdens on public finances.[85] In Ireland, analogous residency criteria for taxation and benefits eligibility under ordinarily resident-like tests have similarly fueled debates over welfare strains, with non-EU migrants' net fiscal costs estimated at €1-2 billion annually in recent years, driven by social welfare claims and health service utilization shortly after arrival. Critics argue that lax verification of genuine residency intent allows circumvention, diverting resources from native populations and contributing to higher taxes or service rationing, as evidenced by government reports on rising public spending pressures from immigration-driven demographics. These burdens highlight causal links between permissive status grants and fiscal imbalances, with empirical data indicating that working-age migrants' initial service demands often precede sustained contributions.Calls for Stricter Criteria and Reforms
In response to concerns over financial pressures on public services, several UK political figures and parties have advocated for reforms to tighten the pathways to settled status, which is a prerequisite for establishing ordinary residence in contexts such as NHS eligibility and benefits access. In September 2025, Home Secretary Shabana Mahmood announced that migrants should be required to demonstrate contributions to society—through employment, taxes, or civic integration—to qualify for permanent settlement, moving away from automatic accrual based on time alone.[86] This proposal aims to ensure that only those adding net value gain indefinite leave to remain (ILR), thereby delaying ordinary residence for non-contributors and reducing immediate entitlements to free healthcare and welfare.[87] Reform UK, led by Nigel Farage, has called for the outright abolition of ILR, replacing it with renewable five-year working visas that impose stricter salary thresholds, limit family reunification, and bar access to public funds until proven economic utility.[88][89] Under this model, existing ILR holders would need to reapply under enhanced criteria, including higher English proficiency and integration tests, effectively prolonging the period before individuals could claim ordinary residence for service entitlements. The party argues this would curb exploitation of residency-based benefits by low-skilled or short-term migrants, citing net migration figures exceeding 700,000 annually as evidence of unsustainable burdens.[90] Government white papers and parliamentary briefings from 2025 further propose extending the default qualifying period for permanent residence from five to ten years for most routes, with exemptions only for high-skilled or high-salary cases, alongside mandatory civic conduct assessments.[91] These reforms target the ordinary residence test's reliance on "settled purpose," which critics contend allows temporary visa holders to transition too readily into full public service access without sufficient vetting. Earlier attempts, such as Clause 34 of the 2013 Immigration Bill, sought to redefine ordinary residence explicitly as ILR or permanent status, overturning judicial precedents that permitted broader interpretations based on voluntary settlement, though this provision was not fully implemented.[92] In Ireland, calls for stricter ordinary residence criteria have been less prominent but tied to tax and benefits scrutiny amid rising non-EEA inflows. Opposition figures, including Social Democrats TD Catherine Murphy, criticized 2020 relaxations to tax residency rules—which indirectly influence ordinary residence after three years of tax residency—as favoring wealthy expats over domestic fiscal equity, urging reinstatement of pre-relaxation thresholds to prevent undue claims on public resources.[93] Proponents of reform emphasize empirical data showing increased welfare usage by recent arrivals, advocating for explicit contribution tests similar to the UK's Habitual Residence Test enhancements in 2013, which required detailed evidence of job-seeking and integration intent to pass eligibility hurdles.[94] These positions reflect a broader push for causal alignment between residency duration, economic input, and service access, prioritizing empirical fiscal impacts over expansive interpretations.Related Concepts and Comparisons
Habitual Residence Test
The Habitual Residence Condition (HRC), commonly referred to as the Habitual Residence Test, is a eligibility criterion administered by Ireland's Department of Social Protection to determine whether an individual qualifies for certain means-tested social welfare payments and Child Benefit.[95] Introduced on 1 May 2004 in response to the enlargement of the European Union, which increased labor mobility and raised concerns about access to benefits by new EU migrants, the HRC requires applicants to demonstrate habitual residence in Ireland at the date of their claim.[96] Unlike the ordinarily resident test used in Irish taxation, which focuses on a pattern of residence over three out of the preceding four years for tax liability purposes, the HRC emphasizes current factual residence and intent to remain, without a fixed durational threshold.[61] The HRC applies to non-contributory social assistance payments, including Jobseeker's Allowance, Supplementary Welfare Allowance, Disability Allowance, State Pension (Non-Contributory), One-Parent Family Payment, Carer's Allowance, and Domiciliary Care Allowance, as well as Child Benefit for all applicants regardless of nationality.[95] It does not apply to contributory benefits like Jobseeker's Benefit or State Pension (Contributory), which rely on insurance contributions rather than residence tests.[61] For non-Irish EU/EEA nationals and family members, satisfying the HRC also requires passing a separate "right to reside" test, confirming lawful residence under EU free movement rules, such as through employment, self-employment, job-seeking, or sufficient resources to avoid becoming a burden on the state.[96] Habitual residence is assessed case-by-case by Deciding Officers using operational guidelines derived from Irish legislation (Section 246 of the Social Welfare Consolidation Act 2005, as amended) and EU jurisprudence, without a statutory definition. Key factors include the length and continuity of prior residence in Ireland; expected future duration of stay; employment or job-seeking prospects; family and personal circumstances, such as presence of dependent children or spouse; strength of ties to Ireland versus country of origin (e.g., property ownership, bank accounts, or social integration); reasons for relocating to Ireland; stated future intentions evidenced by actions like seeking housing or enrolling children in school; and everyday habits reflecting a settled life, such as regular medical visits or community involvement.[61] A person's center of interests—where their primary personal and economic relations are located—carries significant weight, particularly for recent arrivals or those with temporary ties. Applicants submit Form HRC1 to the Department, providing evidence such as proof of address, employment history, family details, and travel records; decisions typically issue within two months, though expedited for urgent cases like basic needs payments under Supplementary Welfare Allowance.[97] Successful claims establish habitual residence from the application date, but failures can be appealed to a Designated Person within the Department and subsequently to the Social Welfare Appeals Office.[61] Prior to the Social Welfare and Pensions Act 2014 (effective 17 July 2014), returning Irish citizens were automatically exempt, but amendments now require them to satisfy the HRC, with decisions factoring in duration of absence abroad and pre-departure ties to Ireland—e.g., those absent less than two years with strong prior connections are more likely to qualify.[98] Exemptions persist for refugees, those granted subsidiary protection, or family members of Irish citizens under certain EU rules, underscoring the test's role in balancing access for genuine settlers against resource strain from short-term or opportunistic claims.[96]Domicile and Indefinite Leave to Remain
Indefinite Leave to Remain (ILR), also known as settlement, grants non-British or non-Irish citizens the right to live in the United Kingdom without immigration time restrictions, provided they meet specific residency and other criteria such as continuous lawful presence for at least five years on eligible routes.[99] For individuals subject to immigration control, ILR is a prerequisite for being considered ordinarily resident in the UK, as it removes conditions on stay that would otherwise prevent the establishment of a settled purpose.[5] Without ILR, even prolonged physical presence does not confer ordinary residence status, distinguishing it from mere factual residence.[12] A person achieves "settled" status—defined as being ordinarily resident without immigration restrictions—upon obtaining ILR, which evidences an intention to make the UK their habitual home.[5] This status is critical for entitlements like NHS secondary care without overseas charging or home student fee status, where ordinary residence must be voluntary and for a settled purpose, such as family or employment, rather than temporary visits.[3] Case law, including R v Barnet LBC ex parte Shah (1983), confirms that ordinary residence requires regular, habitual living in the UK adopted voluntarily for such purposes, and ILR supports this by eliminating the prospect of enforced departure.[10] Domicile, a common law concept separate from residence, refers to the country regarded as a person's permanent legal home, influencing matters like inheritance and succession rather than day-to-day tax or immigration residency.[100] An individual acquires a domicile of choice by residing in a jurisdiction with the intention of remaining there indefinitely, superseding the domicile of origin inherited at birth (typically from the father).[100] While not determinative of ordinary residence, a UK domicile of choice can corroborate the settled purpose required for ordinary residence, as both involve intent to treat the UK as a long-term base, though ordinary residence permits more flexibility for occasional absences without losing status.[3][101] In practice, ILR holders with a UK domicile are more readily deemed ordinarily resident, particularly in non-tax contexts like public service eligibility, where evidence of ties such as property ownership or family settlement aligns domicile intent with habitual presence.[10] However, ordinary residence remains a question of fact assessed individually; for instance, prolonged absences exceeding two years can jeopardize ILR maintenance, potentially disrupting ordinary residence claims even with a UK domicile.[102] Domicile's role is evidentiary rather than statutory for ordinary residence outside tax law, where it historically interacted with pre-2013 ordinary residence rules for remittance basis claims but has since been decoupled under the Statutory Residence Test.[101]International Equivalents in Commonwealth Jurisdictions
In Canada, tax residency is assessed through the concept of "factual" or "ordinary residence," which evaluates an individual's ties to the country based on their general mode of life, including factors such as the location of their home, spouse, dependents, personal property, social ties, and economic interests, rather than solely physical presence.[16] This approach, derived from judicial interpretations, emphasizes habitual patterns over temporary stays, mirroring the UK's former ordinary residence test by focusing on settled intent and regular abode.[16] Ordinary residence in Canada does not require continuous physical presence but can persist despite absences if significant residential connections remain.[14] South Africa's tax regime directly incorporates "ordinarily resident" status as a primary residency criterion, defined by the South African Revenue Service (SARS) as the place where an individual has their most settled or usual abode, with an intention to return after any temporary absences.[103] Courts interpret this as the individual's permanent home base, assessed holistically through factors like family location, asset ownership, and habitual return patterns, independent of a supplementary physical presence test requiring more than 91 days annually over multiple years.[104] This aligns closely with the UK's historical usage, subjecting ordinarily resident individuals to worldwide income taxation unless ceasing residency through formal processes like financial emigration.[105] Australia employs a "resides test" under ordinary concepts for tax residency, which considers behavioral indicators of residence—such as living in Australia with family, enrolling children in school, or maintaining a home—alongside intent to treat the country as a usual abode, though supplemented by objective tests like 183-day presence or domicile.[106] Unlike the UK's pure ordinary residence focus, Australia's framework prioritizes a multi-test cascade, where failure of the resides test triggers domicile or day-count evaluations, but the resides test itself captures habitual settlement akin to ordinary residence.[106] In New Zealand, while tax residency primarily hinges on a 183-day presence threshold or having a permanent place of abode (PPOA)—defined as an enduring base with significant ties—the term "ordinarily resident" appears in non-tax contexts like overseas investment rules, denoting habitual living in the country as a usual place of abode with regular returns after absences.[107] [108] The PPOA test evaluates overall connections similar to ordinary residence, including family, employment, and property, potentially deeming individuals resident despite limited days spent, though it lacks the UK's explicit abolition-era distinction.[109]| Jurisdiction | Key Equivalent Concept | Core Criteria | Distinction from UK Ordinary Residence |
|---|---|---|---|
| Canada | Factual/Ordinary Residence | General mode of life, residential ties (home, family, assets) | Emphasizes judicial holistic assessment over statutory days; persists through absences if ties endure.[16] |
| South Africa | Ordinarily Resident | Settled/usual abode with return intent | Directly mirrors UK term; paired with presence test but independent in application.[103] |
| Australia | Resides Test | Behavioral intent and usual abode indicators | Multi-test structure dilutes pure habitual focus; objective fallbacks like 183 days.[106] |
| New Zealand | Permanent Place of Abode (PPOA) / Ordinarily Resident (select contexts) | Enduring ties and habitual returns | Day-count primary for tax; PPOA as tie-breaker akin to but broader than ordinary settlement.[107] |