Habitual residence

Habitual residence is a stricter test than ordinary residence. An individual can only have one habitual residence at a time.

To be considered habitually resident a person must satisfy two conditions:

• that they have lived in the place in question for an ‘appreciable’ period. This is usually for a minimum of 1-3 months (Nessa v Chief Adjudication Officer [1999] UKHL 41; see also CIS 1304/97 & CJSA 5394/98)

• they have a ‘settled intention’ to continue living there for a reasonable although not necessarily permanent period.

Consideration should be given to whether the settled intention is voluntary.

The stronger the intention to settle in Scotland, the shorter the period required to establish habitual residence is likely to be. People who:

• were formerly habitually resident in Scotland, and  

• are returning to Scotland

can be considered habitually resident from the day they arrive back in the country. They do not have to have lived in Scotland for an appreciable period. 

Applicants to ADP who are either: 

• UK or third-country nationals,

• EEA or Swiss nationals not in the protected cohort 

must be habitually resident in the Common Travel Area (CTA). See Personal Scope of the EU Coordination Rules below. Different rules may apply to a family member of an EEA or Swiss national. See residence criteria for the ‘protected cohort’, below. 

The Common Travel Area (CTA) comprises the following: 

• The United Kingdom (England, Scotland, Wales and Northern Ireland) 

• The Republic of Ireland 

• The Isle of Man 

• The Channel Islands (Jersey and Guernsey) 

Most applicants to ADP will only have one address in Scotland. Where this is the case, that individual will be both: 

• ordinarily resident in Scotland 

• habitually resident in the Common Travel Area, as Scotland is in the CTA. 

Where a person lives between two addresses, one of which is outside Scotland, their other address must be in a CTA country.

Whether and when habitual residence is established is a question of fact to be decided on the circumstances of each case. The following factors have been described as relevant considerations by the courts in objectively assessing an applicant’s ‘settled intention’. This is not however an exhaustive list: 

• making arrangements before arriving in Scotland such as accommodation, registration with local authorities, etc. 

• arranging to bring family members to Scotland 

• any existing and durable ties to Scotland 

• bringing substantial possessions with you to Scotland 

Certain groups are exempt from the habitual residence test:

• individuals with refugee status or humanitarian protection, and their dependants;

• people who, as part of a safe and legal humanitarian immigration route, have leave in accordance with the immigration rules or leave on a discretionary basis outside the rules;

• people who have been granted leave to enter or remain in the UK under:

  1. the Afghan Relocations and Assistance Policy (ARAP);

  2. the scheme ARAP replaced which was for locally employed staff in Afghanistan (sometimes known as the ‘ex-gratia’ scheme); or

  3. the Afghan Citizens Resettlement Scheme (ACRS); and

  4. members of their families.

• people who were residing in Ukraine immediately before 1 January 2022, and left Ukraine in connection with the Russian invasion which took place on 24 February 2022;

• people who were residing in Sudan before 15 April 2023 and left Sudan in connection with the escalating violence which started on 15 April 2023;

• people who were residing in Israel, the West Bank, the Gaza Strip, East Jerusalem, the Golan Heights or Lebanon before 7 October 2023 and left in connection with the Hamas terrorist attack in Israel in October 2023, or the violence which rapidly escalated in the region following the attack;

• people who were residing in Israel, the Occupied Palestinian Territories (the West Bank, including East Jerusalem, and Gaza) or the occupied Golan Heights immediately before 13 June 2025, and left in connection with the escalation of violence between Israel and Iran that began on that date, and arrived in the United Kingdom on or before 13 December 2025; and

• people who are British or Irish nationals, or third country nationals who have leave to remain in the UK, who previously resided outside the UK and have returned from that location because the UK Government:

• issued public information to leave now; or

  evacuated them back to the UK. (ADP Regs, Reg 15(7))

• The intentions of an individual with no fixed address are important in considering where they are habitually resident; as they have no address decision makers should consider where they intend to live, what steps they have taken in that regard, and what their address history suggests.