Ordinary residence case law

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

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

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

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

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

These extracts are from Re P (GE) (an infant) 1965 Ch 568 

Note: this case was decided before 'Shah' 

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

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

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

The full case notes are available at H-K (Children) [2011] EWCA Civ 1100 

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

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

The full case notes are available at Re M (Abduction: Habitual residence) [1996] 1 FLR 887 

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

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

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

Read the full case at Re LM (a child) [2013] EWHC 646 (Fam) 

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

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

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

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

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 

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 

As part of considering whether children had acquired ordinary residence in the UK during a one-year visit, the Court of Appeal assessed whether they and their mother had habitually and normally resided in the UK for settled purposes. It held that they did lead a settled way of life as they lived in a house owned by the mother, her family was nearby, both parents had worked and obtained social security benefit, and the older child went to school. The intended and the actual duration of their stay meant it was not transient or peripatetic. The purpose of their stay was settled as it was to see if the parents could save their relationship and so they adopted a new way of life in a new country for long enough to achieve that objective. Their 'real' home probably remained Australia but that did not affect their ordinary residence, which was in the UK.  

The facts of this case are summarised in the voluntarily adopted residence, children's residence section above. 

Read the full case at H-K (Children) [2011] EWCA Civ 1100 

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." 

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 

This case concerns eligibility for up-ratings of retirement pension but turns on whether the claimants were ordinarily resident in both New Zealand and Britain. From 1992, the claimants had lived most of the year in New Zealand, for family reasons, but returned every year to Britain for a single period of between two and six months. They stated that they did not travel to other countries and they never left Britain without buying return tickets.  One of the claimants had been granted residency rights in New Zealand, but the other had not applied for them. The Commissioners held that they were ordinarily resident in both countries because, amongst other reasons: 

• Britain had, until the events in issue, been their long-term home and they still had a home there at all relevant times which was not occupied by anyone else (although they had tried to sell it) 

• their strongest economic ties were with Britain which remained the source of their main income (their pension) and was a country where at least one was paying tax 

• there was a clear pattern over several years of extended periods spent in both Britain and New Zealand but at no time did a full year go by without an extended visit back to Britain and by 1998 the claimants had established a clear pattern of extended residence in both Britain and New Zealand. 

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

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

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

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

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

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

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

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

"Duration is relevant but not determinative. The break in the earlier trip indicates that the interests of family were given priority over holidaying. The appellant was never more than a traveller or tourist in the countries he visited." 
 
Reference: TC v Secretary of State for Work and Pensions [2017] UKUT 222 (AAC) 

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

It was held that: 

• it was an inevitable inference from the facts that when Ng left the UK he intended to reside and be employed in Hong Kong for the foreseeable future 

• it followed that he ceased to be ordinarily resident in the UK either on his departure from it or on his arrival in Hong Kong 

• it could not be said that Ng was on holiday until he took up employment in Hong Kong.  Had he intended nothing more than a short holiday, he would have remained ordinarily resident in the UK. 

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

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 

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

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

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

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

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 

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

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

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

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

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

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

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

Reference: Kent v University College London 1991 TLR 467 

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

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

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

1. the student's self-assessed residential category on the UCAS form was not the category for 'home' fee payers, although he did enter the fee code which applies to most 'home' fee payers 

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

1. 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) 

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

The facts of this case are summarised in the Temporary employment outside the residence area section above. 

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