Newly issued guidance tells UKVI caseworkers how to consider whether an individual is ordinarily resident in the UK for the purposes of assessing nationality applications.
The Immigration Act 1971 and British Nationality Act 1981 state that a person is ‘settled’ in the UK if they are ordinarily resident in the UK without being subject to immigration time restrictions. A child born in the UK will be a British citizen if either parent is settled in the UK at the time of the birth. (For an explanation of the term ‘parent’, see the general information guidance )
The term ordinary residence is not defined in the immigration or nationality acts and has not been defined in any Act of Parliament. The leading case in this area is R v Barnet LBC ex parte Shah  1 All ER 226. The House of Lords found that the concept of ordinary residence implied:
* ordinary residence is established if there is a regular habitual mode of life in a
particular place for the time being, whether of short or long duration, the
continuity of which has persisted apart from temporary or occasional absences
* residence must be both: voluntary AND adopted for a settled purpose
* a person can be ordinarily resident in more than one country at the same time, distinguishing it from domicile
* Ordinary residence is proven more by objective evidence than evidence of an individual’s state of mind at a point in time.
Although Shah was concerned with the meaning of ordinary residence as used in the Education Acts, the decision is widely recognised as having wider application and must be followed when considering applications for nationality.
Purpose of residence
So what then is the purpose of the residence? The guidance refers to ' a sufficient degree of continuity '. Recognising that this does not mean that the person must intend to stay in the place indefinitely, they may have a settled purpose even though it is for a strictly limited period. The purpose may be general or specific, such as for education, employment, health or family. Settled in this context means fixed or predetermined, as opposed to merely casual and should not be confused with settled status under the Immigration Rules or being permanently resident under European Economic Area regulations.
When does a person become ordinarily resident ?
A person may become ordinarily resident on arrival, and probably will if entering the territory for settlement or one of the purposes leading to settlement. It is possible for a person initially entering for a temporary purpose not constituting ordinary residence, to become ordinarily resident through a change in the quality and purpose of the residence. Where it is not possible to establish the date on which a person became ordinarily resident, i t may be reasonable to treat them as having been ordinarily resident from the date of their arrival.
People that cannot be considered ordinarily resident
In the Shah judgment, Lord Scarman said "if a man’s presence in a particular place or country is unlawful, for example, in breach of the immigration laws, he cannot rely on his unlawful residence as constituting ordinary residence...” This is affirmed for nationality purposes by section 50(5) of the British Nationality Act 1981.
A person may be considered to be in breach of the immigration laws if his or her presence contravenes a deportation order or if the person is an overstayer. In the latter case, the Immigration Appeal Tribunal has said that it is irrelevant, for right of abode purposes, that the person’s stay was subsequently regularised by the grant of leave to remain (Cheong (4390), Lai(3087)).
Lord Scarman further stated that a person must show "that he has habitually and normally resided in the UK from choice and for a settled purpose throughout the prescribed period, apart from occasional or temporary absences.” A person who is in prison is not residing in the UK through choice and so cannot be considered to be ordinarily resident in the UK during their time in prison.
Lastly the guidance turns to the issue of periods of absence from the UK reafirming that the issues to be considered are whether they can be regarded as temporary absences, despite which a regular habitual mode of life has continued and whether the absences are such as to destroy the degree of continuity necessary to establish and maintain ordinary residence.