Ordinarily resident status

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Ordinarily resident status is a concept in the law of the United Kingdom which affects entitlement to the National Health Service. It formerly affected taxation, but the concept of ordinary residence was abolished for the purposes of tax years 2013/14 onwards. [1]

Contents

Indefinite leave to remain and Right of abode are related concepts in immigration law. A person who is a British Citizen is not necessarily an ordinary resident in the UK. The policy relates to the Home Office hostile environment policy.

Guidance

The Department of Health and Social Care states: [2]

A person is ordinarily resident if they are living in the United Kingdom:
• lawfully
• voluntarily
• for settled purposes as part of the regular order of their life for the time being, whether for a long or short duration
Pre-settled or settled status for EEA/Swiss nationals ... is required for EEA/Swiss nationals that were living or studying in the UK on or before 31 December 2020.

Guidance on implementing the overseas visitor hospital charging regulations is provided to assist NHS bodies to make and recover charges for NHS hospital treatment from chargeable overseas visitors. [3]

HM Revenue and Customs issued guidance (booklet HMRC 6) in respect of taxation which included reference to renting, leasing or buying property. This is not mentioned in the NHS guidance. [4]

The concept is also embedded in the National Health Service (Charges to Overseas Visitors) (Scotland) Regulations 1989. [5]

Law

"Ordinarily resident" has not been defined by Act of Parliament. It has been developed in case law. The leading case is R V. Barnet London Borough Council, Ex parte Nilish Shah, which was decided by the House of Lords in 1982. [6] The case was concerned with the meaning of ‘ordinary residence’ as used in the Education Acts. The five appellants were all students who had come to the UK to study. None of them had the right of abode in the United Kingdom. It established these principles:

Ordinary residence is established if there is a regular habitual mode of life in a particular place "for the time being", "whether of short or long duration", the continuity of which has persisted apart from temporary or occasional absences. The residence must be voluntary and adopted for "a settled purpose".

A person can be ordinarily resident in more than one country at the same time. This is not the case in respect of domicile.

Ordinary residence is proven more by evidence of matters capable of objective proof than by evidence as to state of mind.

Administration in the NHS

In October 2016 it was reported that the government had set a target of recovering £500 million a year from overseas visitors treated in NHS hospitals in England, which had been "refined" to £346m for 2017-18, according to the National Audit Office. £289m was collected in 2015-16 and £73m in 2012-13. The NAO reported that only 58% of hospital doctors knew some people were chargeable for NHS healthcare at all. [7] According to Joseph Meirion Thomas, a former cancer specialist at the Royal Marsden Hospital, failure to enforce the charging regulations is costing the British taxpayer £3 billion a year. [8]

Ireland

In the Republic of Ireland there is a similar concept. People who have lived in the Republic for a minimum of one year or intend to live there for a minimum of one year qualify for help with prescription charges. [9]

See also

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<span class="mw-page-title-main">National Health Service</span> Publicly-funded healthcare systems in the United Kingdom

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A Qualifying Recognised Overseas Pension Scheme, or QROPS is an overseas pension scheme that meets certain requirements set by HM Revenue and Customs (HMRC). A QROPS can receive transfers of British pension benefits. The QROPS programme was part of British legislation launched on 6 April 2006 as a direct result of EU human rights requirements of the freedom of capital movement.

<span class="mw-page-title-main">British nationality law</span> History and regulations of British citizenship

British nationality law prescribes the conditions under which a person is recognised as being a national of the United Kingdom. The six different classes of British nationality each have varying degrees of civil and political rights, due to the UK's historical status as a colonial empire. The primary class of British nationality is British citizenship, which is associated with the United Kingdom itself and the Crown dependencies. Foreign nationals may naturalize as British citizens after meeting a minimum residence requirement and acquiring settled status.

An expatriation tax or emigration tax is a tax on persons who cease to be tax resident in a country. This often takes the form of a capital gains tax against unrealised gain attributable to the period in which the taxpayer was a tax resident of the country in question. In most cases, expatriation tax is assessed upon change of domicile or habitual residence; in the United States, which is one of only three countries to substantively tax its overseas citizens, the tax is applied upon relinquishment of American citizenship, on top of all taxes previously paid. Australia has "Deemed disposal tax" which in essence is exit tax.

In tertiary education in the United Kingdom, the term home student is used to refer to those who are eligible to pay university tuition fees at a lower rate than overseas students. In general, British, and Irish citizens qualify for home student status only if they have been "ordinarily resident" in the UK for three years prior to the start of university. From Autumn 2021, EU citizens lost their home student status and since have had to pay the higher international tuition fees. There are other criteria to be satisfied. All other students, even British citizens, who do not qualify as "home students" are considered to be overseas students and must pay higher overseas students tuition fees at university.

The immigration health surcharge was introduced by the Cameron–Clegg coalition by the Immigration Order 2015, made under the provisions of the Immigration Act 2014, to deal with the issue of medical tourism involving the NHS in England. Once the surcharge is paid people are entitled to use the NHS in a similar way to UK residents.

The Healthcare Travel Costs Scheme was established across the United Kingdom National Health Service in 1988. Patients and their children in receipt of means tested benefits, or on a low income, could get help with the cost of travel to hospital appointments. It does not apply to primary care or community services and it does not apply to visitors.

References

  1. "When does someone become ordinarily resident?". Tax guide for students. Retrieved 2 November 2016.
  2. "Ordinary Residence Tool" (PDF). Department of Health and Social Care. 7 May 2021. Retrieved 9 March 2023.
  3. "NHS visitor and migrant cost recovery programme". UK Government, Health and social care. 8 October 2020. Retrieved 9 March 2023.
  4. "When does someone become ordinarily resident?". Tax guide for students. Retrieved 2 November 2016.
  5. "Overseas Visitors". Scottish Government. Retrieved 23 May 2018.
  6. "(1982) 81 LGR 305, 81 LGR 305, [1983] 2 WLR 16, [1982] UKHL 14, [1983] 2 AC 309, [1983] 1 All ER 226". United Kingdom House of Lords Decisions. Bailii. Retrieved 2 November 2016.
  7. "NHS set to miss target on foreign patient costs". BBC News. 28 October 2016. Retrieved 2 November 2016.
  8. "Cost of treating health tourists is killing the NHS, says Ross Clark". Daily Express. 31 October 2016. Retrieved 2 November 2016.
  9. "Drugs Payment Scheme". Citizens's Information. 26 November 2018. Retrieved 24 March 2019.