Keith Mack
The UK's complex immigration rules and requirements can be challenging to navigate. Those seeking to establish whether they are lawfully resident in the UK must consider various factors, including their nationality, immigration status, and length of stay. British citizens, EEA and Swiss citizens with settled status, and migrants with indefinite leave to remain are among those typically considered lawfully resident. However, each person's situation is unique, and factors such as family ties, refugee status, and tax considerations can also come into play. Seeking professional legal advice is often recommended to ensure individuals understand their residence status and associated rights and obligations.
| Characteristics | Values |
|---|---|
| British citizens | Automatic right of abode in the UK |
| British citizens living abroad | Can pass the ordinary residence test upon taking up settled residence in the UK |
| Non-UK nationals | Can seek to enter or remain in the UK based on family life with a person who has lawful residence |
| Settled status in the UK | Defined in an immigration context as a person with indefinite leave to enter or remain, or an Irish national per the Ireland Act 1949 |
| EEA and Swiss citizens | Can continue to stay in the UK if they were living in the country on or before 31 December 2020 |
| Family members of EEA and Swiss citizens | Can stay in the UK if the family relationship existed by 31 December 2020 and they apply for UK immigration status by 30 June 2021 |
| EEA and Swiss citizens with indefinite leave to remain or Irish citizens | Exempt from applying for EUSS but can do so if they wish |
| Spouses and civil partners of Swiss citizens | Can join their partner in the UK until 31 December 2025 but must apply to the EUSS |
| Migrants with refugee status or humanitarian protection | Exempt from paying the Immigration Health Surcharge and are entitled to free NHS treatment |
| Migrants with indefinite leave to remain | Can meet the ordinary residence test |
| Migrants proving lawful residence | Can use a biometric residence permit or card |
| EEA and Swiss nationals with settled status under the EU Settlement Scheme | Have electronic confirmation of their status |
| Ordinary residents of the UK | Entitled to public funds such as universal credit and housing support |
| UK residence determination | Based on physical presence in the UK for 183 days or more in a tax year (from 6 April to 5 April) |
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What You'll Learn
Immigration status
British citizens have an automatic right of abode in the UK. A British citizen who has been living abroad can pass the ordinary residence test upon taking up settled residence in the UK. A non-UK national may seek to enter or remain in the UK based on their family ties with a person who has lawful residence in the UK. Being "settled" in the UK means a person has indefinite leave to enter or remain, or is an Irish national treated as a settled person under the Ireland Act 1949.
EEA and Swiss citizens and their family members who were living in the UK on or before 31 December 2020 could apply for UK immigration status through the EUSS by 30 June 2021 to remain lawfully resident. Those with indefinite leave to remain or Irish citizens did not need to apply but could do so if they wished.
Migrants with refugee status or humanitarian protection are exempt from paying the Immigration Health Surcharge and are entitled to free NHS treatment. Once they have indefinite leave to remain, they will pass the ordinary residence test. The biometric residence permit or card is the easiest way for a migrant to prove lawful residence. EEA and Swiss nationals with settled status under the EU Settlement Scheme will have electronic confirmation.
Ordinary residents have the UK as their primary home and are entitled to public funds such as Universal Credit. Migrants who have not yet settled usually have a "no recourse to public funds" condition attached to their visa.
The statutory residence test determines UK residence based on physical presence in the UK for 183 days or more in a tax year. If someone does not meet this criterion, their residence position is determined by the number of "ties" they have to the UK.
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Residence test
The Statutory Residence Test (SRT) determines whether an individual is a resident in the UK under its domestic tax law for the tax years 2013/14 onwards. The SRT considers automatic overseas tests, automatic UK tests, and a sufficient ties test.
If an individual meets at least one of the automatic overseas tests, they are deemed 'automatically' non-resident for the tax year in question. There are four automatic overseas tests, which are:
- The individual was a resident in the UK in one or more of the three previous tax years and spent fewer than 16 days in the UK in the tax year under review.
- The individual was not a resident in the UK for any of the three previous tax years and spent fewer than 46 days in the UK in the tax year under review.
On the other hand, if an individual meets at least one of the automatic UK tests and none of the automatic overseas tests, they are deemed 'automatically' resident for the tax year. The four automatic UK tests are:
- Spending 183 days or more in the UK during the tax year under review.
- Having a UK home for over 90 days and being present in that home on at least 30 separate days.
- Working full-time in the UK for 365 days or more without a 'significant break'.
- A fourth test applies to individuals who die during the tax year.
If none of the automatic tests are met, the sufficient ties test is used. This considers the number of days spent in the UK and the number of ties to the UK.
In terms of ordinary residence, this is defined as having the UK as an individual's primary home. British citizens and migrants with settled status in the UK are ordinarily resident. EEA and Swiss nationals, as well as their family members, who do not have settled status but have been granted limited leave to enter or remain, can also be considered ordinarily resident.
For EEA and Swiss citizens, the Withdrawal Agreement, EEA EFTA Separation Agreement, and Swiss Citizens' Rights Agreement allowed those living in the UK on or before 31 December 2020, and their family members, to continue residing in the UK if they applied for UK immigration status through the EUSS by 30 June 2021.
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Exemptions
There are several exemptions to the requirements for lawful residence in the UK. Here are some key exemptions:
Refugee Status and Humanitarian Protection
Persons granted refugee status or humanitarian protection can reside lawfully in the UK and are exempt from paying the Immigration Health Surcharge (IHS). They are entitled to free NHS treatment and, once they obtain indefinite leave to remain, they meet the ordinary residence test.
Commonwealth Citizens
Commonwealth citizens may be able to apply to prove they have a 'right of abode' in the UK and thus be exempt from immigration control. An example of this exemption is the protection of Commonwealth citizens' indefinite leave from absences outside the UK until 1 August 1988, when the relevant section was repealed.
Family Members of UK Citizens
Family members of UK citizens returning from the European Economic Area (EEA) or Switzerland by specific dates are exempt from losing their indefinite leave to enter or remain. They have until 29 March 2022 to return and apply for the EU Settlement Scheme.
Returning Residents
Returning residents, or those with settled status who return to the UK after a lengthy absence, are exempt from the typical rules regarding re-entry. Paragraph RR 8.1 allows the Home Office decision-maker to readmit a person who has been absent for more than two years, although this is at the discretion of the individual decision-maker.
Long Residence Applications
Once an applicant has built up ten continuous years of lawful residence, there is no time limit on when they can apply for indefinite leave to remain. They can leave the UK, re-enter, and then apply based on their previous period of continuous residence.
These exemptions provide pathways for individuals to establish or maintain their lawful residence in the UK, even in circumstances where they might otherwise face restrictions or challenges.
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Documentation
The UK's immigration rules are complex, and it is recommended to seek legal advice to ensure your residence application succeeds. The easiest way for a migrant to prove they have lawful residence is by biometric residence permit or card ("BRP/BRC"). EEA and Swiss nationals who have settled status under the EU Settlement Scheme will have electronic confirmation of their status.
British citizens have an automatic right of abode in the UK. A British citizen who has been living abroad or is migrating to the UK for the first time can pass the ordinary residence test upon taking up settled residence. British citizens who are no longer living and settled in the UK cannot be said to be ordinarily resident in the UK.
EEA and Swiss citizens and their family members must apply for UK immigration status through the EUSS by 30 June 2021 to remain lawfully resident in the UK. EEA and Swiss citizens who already have indefinite leave to remain or are Irish citizens are exempt from this requirement but can apply if they wish.
A non-UK national may seek to enter or remain in the UK based on their family life with a person who has lawful residence in the UK. Being "'settled'" in the UK means a person has indefinite leave to enter or remain, or is an Irish national treated as a settled person by virtue of the Ireland Act 1949. Migrants with refugee status or humanitarian protection are exempt from paying the Immigration Health Surcharge and are entitled to free NHS treatment.
Ordinary residents of the UK have the UK as their primary home and are entitled to public funds such as universal credit and housing support. Migrants who have not yet settled in the UK typically have a "no recourse to public funds" condition attached to their visa.
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Legal advice
The UK's legal system can be complex, and the best course of action is to seek professional legal advice. Here are some key points to consider regarding lawful residence in the UK:
British Citizens
British citizens have an automatic right of abode in the UK. A British citizen who has been living abroad can pass the ordinary residence test upon taking up settled residence in the UK. However, British citizens who are no longer living and settled in the UK cannot be considered ordinarily resident.
Non-UK Nationals
Non-UK nationals may seek to enter or remain in the UK based on their family ties with a person who has lawful residence. "Settled" in an immigration context means a person has indefinite leave to enter or remain in the UK without any time restrictions. Irish nationals are also treated as settled persons under the Ireland Act 1949.
EEA, Swiss, and Family Members
The Withdrawal Agreement and other agreements provide EEA and Swiss citizens living in the UK before 31 December 2020 with the right to continue residing. Their family members are also granted this right, provided the relationship existed before this date. These citizens and their families must apply for UK immigration status by 30 June 2021 to remain lawfully resident.
Migrants
Migrants with refugee status or humanitarian protection are exempt from the Immigration Health Surcharge and are entitled to free NHS treatment. Once they obtain indefinite leave to remain, they pass the ordinary residence test. The biometric residence permit or card is the easiest way for migrants to prove lawful residence, which is often required for renting, banking, or employment.
Residence Tests
The UK's statutory residence test determines residence status based on physical presence in the UK. An individual is typically treated as a UK resident if they are physically present in the UK for 183 days or more in a tax year. However, there are other ways to be automatically considered a UK resident. If you don't fit into any standard categories, your residence position will be determined by the number of 'ties' you have to the UK.
Legal Representation
Given the complexity of UK immigration rules, it is advisable to seek legal representation when submitting residence applications. Immigration and visa legal representatives can advise on immigration status and ensure applications meet the necessary requirements. They can guide you through the process and help you provide the correct documentary evidence.
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Frequently asked questions
Since 6 April 2013, UK residence has been determined by a statutory residence test. According to this test, you will be treated as a UK resident in any tax year if you are physically present in the UK for 183 days or more in that year.
Someone who is considered ordinarily resident in the UK is either a British national or a migrant who has settled in the UK having been granted indefinite leave to enter or remain or settled status.
"British citizens" have an automatic right of abode in the UK. A British citizen who has been living abroad can pass the ordinary residence test upon taking up settled residence in the UK. A non-UK national may seek to enter or remain in the UK based on their family life with a person who has lawful residence in the UK.
It is possible to instruct an immigration and visa legal representative to submit a residence application. The UK Immigration Rules are complex, and a legal representative can help ensure that your application meets the Immigration Rules.
