Habitual residence in the common travel area

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); and
• that 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 necessarily have to have lived in Scotland for an appreciable period.

Applicants to CSP who are:

• UK nationals not in the ‘protected cohort’;
• third country nationals; or
• EEA or Swiss nationals not in the ‘protected cohort’,

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

Applicants for CSP who are residing outside of the UK and are in the ‘protected cohort’ must be habitually resident in one of the following:

• an EEA member state;
• Switzerland; or
• Gibraltar

The Common Travel Area (CTA) comprises:

• the United Kingdom (England, Scotland, Wales and Northern Ireland);
• the Republic of Ireland;
• the Isle of Man; and
• the Channel Islands (Jersey and Guernsey)

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; and
• bringing substantial possessions with you to Scotland.

Certain groups are exempt from the habitual residence test, such as individuals with refugee status.

In certain circumstances, individuals arriving in the UK from Afghanistan do not need to meet the habitual residence test, including people who have been granted leave to enter or remain in the UK under:

• the Afghan Relocations and Assistance Policy (ARAP);
• the scheme ARAP replaced which was for locally employed staff in Afghanistan (sometimes known as the ‘ex-gratia’ scheme); or
• the Afghan Citizens Resettlement Scheme (ACRS).

The following people are also exempt from the habitual residence test:

• 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; and
• 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. 

Individuals who are dependents of the individuals mentioned here, because they have been granted discretionary leave outside the immigration rules, are also exempted from having to meet the habitual residence test.

As with ordinary residence, 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.

Examples of habitual residence in Scotland 

• Harpreet has a permanent address in Chicago and regularly travels to the UK for business. She rents short-term self-catering accommodation in Scotland for the duration of her trip. She is ordinarily resident in Scotland, but her habitual residence is in the USA. As the USA is outside of the CTA, Harpreet is not eligible for CSP.
• Aaron lives in Carlisle. He works in Scotland for a recycling firm which puts him up in a rental flat in Edinburgh during the week. As both England and Scotland are in the Common Travel Area, Aaron’s habitual residence in Carlisle is in the CTA.