“Your employment is not for a fixed term or intended to be temporary.”
“Ordinary residence is not a term of art in English law. But it embodies an idea of which Parliament has made increasing use in the statute law of the United Kingdom since the beginning of the 19th century. The words have been a feature of the Income Tax Acts since 1806. They were used in the English family law when it was decided to give a wife the right to petition for divorce notwithstanding the foreign domicile of her husband:Matrimonial Causes Act 1950, section 18 (1) (b ). Ordinary or habitual residence has, in effect, now supplanted domicile as the test of jurisdiction in family law …. The words “ordinary residence” were considered by this House in two tax cases reported in 1928. In each, the House saw itself as seeking the natural and ordinary meaning of the words. In Levene v Inland Revenue Commissioners [1928] A.C. 217, 225 Viscount Cave L.C. said: “I think that [ordinary residence] connotes residence in a place with some degree of continuity and apart from accidental or temporary absences.”
“I think the converse to 'ordinarily' is ‘extraordinarily’ and that part of the regular order of a man’s life, adopted voluntarily and for settled purposes, is not ‘extraordinary.’”
“I do not attempt to give any definition of the word ‘resident.’ In my opinion it has no technical or special meaning for the purposes of the Income Tax Act. ‘Ordinarily resident’ also seems to me to have no such technical or special meaning. In particular it is in my opinion impossible to restrict its connotation to its duration. A member of this House may well be said to be ordinarily resident in London during the Parliamentary session and in the country during the recess. If it has any definite meaning I should say it means according to the way in which a man's life is usually ordered.” ”
“I do not read the judgment of Karminski J as importing into ordinary residence an intention to live in a place permanently or indefinitely… . But if he did hold that such an intention was necessary he would, in my view, have erred in law.”
“Unless, therefore, it can be shown that the statutory framework or the legal 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 of long duration.”
“There are two, and no more than two, respects in which the mind of the "propositus" 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 that 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 1928 and recognised by Lord Denning M.R. 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 state of mind. Templeman L.J. emphasised in the Court of Appeal the need for a simple test for local education authorities to apply: and I agree with him. The ordinary and natural meaning of the words supplies one. For if there 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 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 inquiry into such questions call for any deep examination of the mind of the "propositus."”
“I am not satisfied, but it is unnecessary to decide, that they are always synonymous. Each may take a shade of meaning from the context and the object and purpose of the legislation. But there is a common core of meaning which makes it relevant to consider what has been said in cases dealing with both ordinary and habitual residence.”
“It seems to me impossible to accept the argument at one time advanced that a person who has never been here before who says on landing, “I intend to settle in the United Kingdom” and who is fully believed is automatically a person who is habitually resident here. Nor is it enough to say I am going to live at X or with Y. He must show residence in fact for a period which shows that the residence has become “habitual” and, as I see it, will or is likely to continue to be habitual. I do not consider that, when he spoke of residence for an appreciable period, Lord Brandon meant more than this. It is a question of fact to be decided on the date where the determination has to be made on the circumstances of each case whether and when that habitual residence had been established. Bringing possessions, doing everything necessary to establish residence before coming, having a right of abode, seeking to bring family, “durable ties” with the country of residence or intended residence, and many other factors have to be taken into account. The requisite period is not a fixed period. It may be longer where there are doubts. It may be short (as the House accepted in In re S (A Minor) (Custody: Habitual Residence) [1998] A.C. 750, my speech at p. 763A , and In re F (A Minore) (Child Abduction) [1992] 1 F.L.R. 548, 555, where Butler-Sloss L.J. said: “A month can be ... an appreciable period of time”).”
“On that basis it seems to me plain that a British resident's departure abroad for a period of a few weeks or months with the firm intention of returning at the end of the period to live here as before would be likely always to be for the purpose only of occasional residence. At the opposite end of the scale, it seems to me equally plain that the departure of such a resident abroad for a limited period of, say, three years would not necessarily be for the purpose only of "occasional residence" just because from the outset he had a firm intention of returning at the end of the period to live here as before: "not necessarily", because all the circumstances would have to be considered. Inland Revenue Commissioners v Combe (1932) 17 T.C. 405 is an example of this, where on the facts Captain Combe's business and residential headquarters were permanently in New York throughout the three years. For my part I think this latter conclusion is also true of residence abroad for just over one year in duration. The difference between these examples is one of degree, and there is an area in which different minds may reach different conclusions. In my view a year is a long enough period for a person's purpose of living where he does to be capable of having a sufficient degree of continuity for it to be properly described as settled. Hence, depending on all the circumstances, the foreign country could be the place where for that period he would be ordinarily and not just occasionally resident.”
“The expression “ordinary residence” is found in the Income Tax Act of 1806 and occurs again and again in the later Income Tax Acts, where it is contrasted with the usual or occasional or temporary residence; and I think that it connotes residence in a place with some degree of continuity and apart from accidental or temporary absences. So understood, the expression differs little in meaning from the word “residence” as used in the Acts; and I find it difficult to imagine a case in which a man while not resident here is yet ordinarily resident here.”
“…If residence be once established “ordinarily resident” means in my opinion no more than that the residence is not casual and uncertain but that the person held to reside does so in the ordinary course of his life.”
“73. We consider that the purpose became settled during 1998-99. Dr Tuczka and Sylvia set up home in London in the spring of 1998, and their employment commitments kept them in London. In arriving at this conclusion, we take account of the potentially precarious nature of Dr Tuczka’s employment; his contract contained a relatively short notice period of four weeks, and we are aware that sudden decisions without notice to terminate employment contracts in banking have always been a hazard for bank employees. However, Dr Tuczka’s purpose was to continue his employment while it lasted. As Mr Nawbatt emphasised, the words “ordinarily resident” were stated by Lord Scarman in Shah at 343 to refer to “a person’s abode in a particular country which he or she has adopted voluntarily as part of the regular order of his life for the time being, whether of short or long duration”
“It is well settled that, when the Commissioners have thus ascertained the facts of the case and then have found the conclusion of fact which the facts prove, their decision is not open to review, provided (a) that they had before them evidence, from which such a conclusion can properly be drawn, and (b) that they did not direct themselves in law in any of the forms of legal error which amount to misdirection.”
“Many of the questions which must be asked to determine questions of residence, such as whether the purpose for which a person had adopted abode is “settled” or whether there is a sufficient degree of permanence and continuity lend themselves to no certain conclusion. They require value judgments, which may express a wide range of views, all of which are within the area of reasonable conclusion, even when they conflict.”
“Acquisition of a property would not necessarily prevent an individual from establishing that he or she was not ordinarily resident, provided that the property was sold within the period specified in IR 20; in other words, an individual could buy instead of renting, based on the same commercial approach as expressed by Dr Tuczka, and still not prejudice the ordinary residence status, as long as the property was held for a limited period.”