COVID-19 – relaxation of UK residency rules
With the COVID-19 pandemic continuing to spread across the UK and around the world, governments are imposing strict restrictions on people’s movements. For non-UK residents who manage their time in the UK, in order to avoid becoming UK resident under the Statutory Residency Test (SRT), these restrictions could create problems for their UK residency position if they are unable to leave as planned.
Are these exceptional circumstances?
Under the SRT, there is a special rule for days spent in the UK due to “exceptional circumstances”. The legislation defines exceptional circumstances as “national or local emergencies such as war, civil unrest or natural disasters”, as well as “a sudden or life-threatening illness or injury”. Under this rule, if you are only in the UK at the end of a day as a result of exceptional circumstances outside your control, this is considered an “exceptional day” under the SRT and is not taken into account when totalling an individual’s residency days for the purposes of the SRT.
It has been unclear if an individual stuck in the UK due to COVID-19 would be able to claim exceptional circumstances. However, HMRC have already published guidance giving details on when they consider days in the UK relating to COVID-19 can be claimed as “exceptional”.
HMRC have, though, made it clear that the facts and circumstances of each individual case will need to be taken into account (so it’s not a free pass). However, under the guidance, circumstances will be considered exceptional if the individual:
- is quarantined or advised by a health professional or public health guidance to self-isolate in the UK as a result of the virus;
- is advised by official Government advice not to travel from the UK as a result of the virus;
- is unable to leave the UK as a result of the closure of international borders; or
- is asked by their employer to return to the UK temporarily as a result of the virus.
A concession, or just a clarification?
Under the SRT, a maximum of 60 days in the UK can be disregarded as exceptional circumstances. This guidance issued by HMRC has not extended this, so for the time being the conservative approach would be to assume that this 60 day limit still applies, especially as that time limit is also set out in legislation.
Exceptional circumstances also do not apply to every part of the SRT. They only apply to those rules that rely upon calculating days spent in the UK and also concluding whether an individual meets the ‘90 day tie’ under the sufficient ties test. For example, if you are counting days of presence at your ‘home’ under the SRT, this is a separate calculation and no exception is made for days that are considered exceptional when determining UK residency days.
Also, exceptional circumstances are not taken into account when reviewing the ‘work,’ ‘family’ and ‘country’ ties for the sufficient ties test. Where problems may arise, is if an individual is in the UK under exceptional circumstances (for example COVID-19 prevents them from flying home or to their place of work overseas) and they choose to work on those days. The individual could pass the threshold of the ‘work’ tie (more than 3 hours of work a day in the UK on at least 40 days in that year) and as a result, they could be considered a UK resident if this extra tie means they pass the relevant day threshold based on the number of ties they have to the UK. Although, when considering the number of days for the threshold they can take exceptional circumstances into account!
The application of exceptional circumstances under the SRT is very complex and HMRC have not changed this just by bringing COVID-19 within the scope of it’s definition. We still do not know how long these conditions will last, so it is likely there will be many cases where an individual’s exceptional days exceed 60 and begin to be considered days in the UK for SRT purposes. However, the SRT is an annual test and the clock begins again on 6 April, which may help some people.
HMRC have confirmed that they may update this guidance at short notice, however we do not have any indication what these updates will contain or when they will be made, so any individual who believes they may be impacted by this should start planning now, as whilst it seems HMRC have clarified their position, they most certainly have not given any concession to those affected by these limitations.