UKCISA - international student advice and guidance

The case of Shah

Last modified: 09 August 2024

The case of Shah is the key case in relation to the meaning of ordinary residence and it is often quoted in other cases. 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.

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

"It is my view that LEAs [Local Education Authorities], 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: 09 August 2024

The need for lawful residence has been unsuccessfully challenged in some 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.

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 two cases below give examples of contesting ‘overstaying’ and ‘temporary admission.’ We state the theme of the case, followed in brackets by the short-hand case title.

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Overstaying (Arogundade)

Temporary admission (Tigere)

In this example, a student was brought to the UK at the age of six 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.

The full case notes are available at R (Tigere) v Secretary of State for Business, Innovation and Skills [2015] UKSC 57

Voluntarily adopted and children's residence

Last modified: 09 August 2024

Lord Scarman in the case of Shah said that 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 person has adopted it on a voluntary basis.

This means that time spent in prison or in detention is not ordinary residence. Detention can be official or by family or others. In these cases, your period of detention may be a temporary absence.

The more common question concerns a young person's location. This is because young children are usually not able to decide where they live. 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 the same as that of their parents, or parent with care. There are exceptions if there is evidence that the student, as a child:

was abducted, or

was in foster care or local authority care, or

did not live in the same country or area as their parent(s).

The Department of Health's guidance on ordinary residence in community care cases may be helpful if you think this applies to your case.

The following cases provide examples of voluntary adopted residence and factors to consider. We state the theme of the case, followed in brackets by the short-hand case title:

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

Separated parents and child lives with a grandparent (M)

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

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

Settled purpose and ordinary residence in more than one place

Last modified: 09 August 2024

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.

The following cases give examples of settled purpose and ordinary residence in more than one area. We state the theme of the case, followed in brackets by the short-hand case title:

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Travel and residence in several EU member states (Newman)

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".

Reference: University College London v Newman (1985) Times, 8 January

Travel before residence in the EU (McBreen)

This case contrasts with the Newman case listed above. 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.

Reference: R v The City of Birmingham ex parte McBreen (11 October 1985) CO/1324/85

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

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)

This case concerned an application for a certificate for British citizenship (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.

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

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

Temporary absence

Last modified: 09 August 2024

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 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 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.

The cases below give a range of examples of contested temporary absence. We state the theme of the case, followed in brackets by the short-hand case title.

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

Absences for travel (TC)

Exceptional use of hindsight to assess intentions (Siggins)

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 11 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.

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

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

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 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 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".

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

Ordinary residence lost on departure (Ng)

Absence can stop being temporary (Patel)

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 between13 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."

Read the full case notes at Dinubhai Patel and Another v Secretary of State for the Home Department [1984] Imm AR 147

Temporarily employed outside the residence area

Last modified: 09 August 2024

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.

The two cases below may be helpful to your situation. We state the theme of the case, followed in brackets by the short-hand case title.

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

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

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 on 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."

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

Main purpose of residence

Last modified: 09 August 2024

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 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 area relevant to your category in the regulations, full-time education is not your main reason for being there.

For example, you are an EU national with pre-settled status in full-time education in the UK. You spend your holidays with your family in Belgium. You might be in the UK mainly to receive full-time education. But the residence area for your category is much bigger. It is the UK, the European Economic Area (EEA), Switzerland and the overseas territories. Belgium is part of the EEA, so you are not ordinarily resident in the relevant area mainly to receive full-time education and you meet the requirements of the category.

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.

The cases below may be helpful to your situation. We state the theme of the case, followed in brackets by the short-hand case title.

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

Joined by parents, main purpose settlement (Kent)

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

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:

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

he started at boarding school very soon after having arrived in the UK

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.

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

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

Government guidance on ordinary residence

Last modified: 09 August 2024

Government departments have produced guides to ordinary residence in different contexts which are a useful starting point, alongside the cases above.

Student Finance England's guidance on assessing student finance eligibility

Student Awards Agency Scotland's guidance, based on legislation as well as case law, on:

Residence conditions for nationals from outside the UK, EU, EEA and Switzerland

Residence conditions for UK, EU, EEA and Swiss nationals

Exceptions to the general residence conditions

Funding for serving members of the Armed Forces, their families and veterans for members of the armed forces and their families

Home Office guidance on assessing ordinary residence in nationality applications

Department of Health guidance on overseas visitor hospital charging regulations, and in particular its ordinary residence tool

HMRC Manual on ordinary residence for tax purposes

Ordinary residence case law

The case of Shah

Lawful residence

Overstaying (Arogundade)

Temporary admission (Tigere)

Voluntarily adopted and children's residence

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

Separated parents and child lives with a grandparent (M)

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

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

Settled purpose and ordinary residence in more than one place

Travel and residence in several EU member states (Newman)

Travel before residence in the EU (McBreen)

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

Government guidance on residence in more than one country

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

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

Temporary absence

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

Absences for travel (TC)

Exceptional use of hindsight to assess intentions (Siggins)

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

Ordinary residence lost on departure (Ng)

Absence can stop being temporary (Patel)

Temporarily employed outside the residence area

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

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

Main purpose of residence

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

Joined by parents, main purpose settlement (Kent)

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

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

Government guidance on ordinary residence

About UKCISA

Useful links

Ordinary residence case law

The case of Shah

Lawful residence

Voluntarily adopted and children's residence

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

Settled purpose and ordinary residence in more than one place

Temporary absence

Temporarily employed outside the residence area

Main purpose of residence

Government guidance on ordinary residence

About UKCISA

Useful links