Statutory residence test: how to count your UK days
The statutory residence test is how the UK decides whether you are resident for a tax year. Several of its tests start from a count of days spent in the UK. A day counts if you are in the UK at the end of it, with a few exceptions and one rule that can add days you were not there at midnight.
The rule
HMRC describes the test like this:
The test allows you to work out your residence status for a tax year. Each tax year is looked at separately, so you may be resident in the UK in one year but not the next, or vice versa.
"A tax year begins on 6 April and ends on the following 5 April." (Income Tax Act 2007, section 4(3))
The day count itself is in Finance Act 2013, Schedule 45, paragraph 22:
If P is present in the UK at the end of a day, that day counts as a day spent by P in the UK.
If P is not present in the UK at the end of a day, that day does not count as a day spent by P in the UK.
This is subject to the deeming rule.
Source: Finance Act 2013, Schedule 45, paragraph 23(1) and (2)
Days add up across the year, however they fall:
Any reference to a number of days spent in the UK “in” a given period is a reference to the total number of days spent there (in aggregate) in that period, whether continuously or intermittently.
HMRC's guidance gives the day thresholds the count feeds into:
- "You’ll be UK resident for the tax year if you spend 183 days or more in the UK in the tax year."
- "You’ll be non-UK resident for the tax year if you were resident in the UK for one or more of the 3 tax years before the current tax year, and you spend fewer than 16 days in the UK in the tax year."
- "You’ll be non-UK resident for the tax year if you were resident in the UK for none of the 3 tax years before the current tax year, and spend fewer than 46 days in the UK in the tax year."
Between those, the sufficient ties test compares days with the number of UK ties (HMRC, RDR3). HMRC's tables:
| Days in the UK in the tax year | Table A: UK ties needed if you were UK resident in one or more of the 3 tax years before | Table B: UK ties needed if you were UK resident in none of them |
|---|---|---|
| 16 to 45 | At least 4 | Not in Table B, which starts at 46 days (below 46, see the second automatic overseas test above) |
| 46 to 90 | At least 3 | All 4 |
| 91 to 120 | At least 2 | At least 3 |
| Over 120 | At least 1 | At least 2 |
Source: HMRC, RDR3, Tables A and B.
What counts as a day
HMRC's manual puts the midnight rule this way:
Days an individual is present in the UK at the end of the day count as a day spent in the UK.
If an individual is not present in the UK at the end of the day, that day will not count as a day spent in the UK. This is subject to the deeming rule.
Source: HMRC, RFIG20720
Transit days
Paragraph 22(3) of the Schedule excludes a day when all three of these are true:
P only arrives in the UK as a passenger on that day,
P leaves the UK the next day, and
between arrival and departure, P does not engage in activities that are to a substantial extent unrelated to P's passage through the UK.
HMRC's manual adds what is and is not related to the passage:
Merely taking dinner or breakfast at their hotel, in the normal course of events, would be related to their passage.
In contrast, enjoying a film at a local cinema, spending any time in your home in the UK or catching up with friends or relations would be considered substantially unrelated to their passage through the UK.
The individual's day of arrival, when in transit, does not count as a day spent in the UK for SRT purposes. However, the following day, when the individual leaves the UK, may be a qualifying day under the deeming rule (see RFIG20720).
Source: HMRC, RFIG20730
Exceptional circumstances: at most 60 days
The second case is where—
P would not be present in the UK at the end of that day but for exceptional circumstances beyond P's control that prevent P from leaving the UK, and
P intends to leave the UK as soon as those circumstances permit.
Examples of circumstances that may be “exceptional” are—
national or local emergencies such as war, civil unrest or natural disasters, and
a sudden or life-threatening illness or injury.
Source: Finance Act 2013, Schedule 45, paragraph 22(4) and (5)
the maximum number of days to which sub-paragraph (2) may apply in reliance on sub-paragraph (4) is limited to 60
once the number of days within sub-paragraph (4) reaches 60 (counting forward from the start of the tax year), any subsequent days within that sub-paragraph, whether involving the same or different exceptional circumstances, will count as days spent by P in the UK.
Source: Finance Act 2013, Schedule 45, paragraph 22(6)(a) and (b)
For example (ours, applying paragraph 22(6)): if 65 days in one tax year were days within paragraph 22(4), the first 60, counting forward from the start of the tax year, would not count as days spent in the UK. The other 65 - 60 = 5 days would.
The deeming rule: 3 or more ties and more than 30 qualifying days
A "qualifying day" is a day when you are in the UK at some point but not at the end of the day. The deeming rule applies only if all of these hold:
P has at least 3 UK ties for a tax year,
the number of days in that tax year when P is present in the UK at some point in the day but not at the end of the day (“qualifying days”) is more than 30, and
P was resident in the UK for at least one of the 3 tax years preceding that tax year.
The deeming rule is that, once the number of qualifying days in the tax year reaches 30 (counting forward from the start of the tax year), each subsequent qualifying day in the tax year is to be treated as a day spent by P in the UK.
HMRC's manual says the same in its own words: "after the first 30 qualifying days, all subsequent qualifying days within the tax year are treated as days spent in the UK." It also says the rule "does not apply to the limit of days spent in the UK under the third automatic overseas test".
Worked examples
Deeming rule: HMRC's examples
These are three of HMRC's own examples in RFIG20720. The arithmetic column is the sum.
| Example | Facts in HMRC's example | Arithmetic | HMRC's conclusion |
|---|---|---|---|
| Angharad | 35 days in the UK at the end of the day; present on 57 other days but left before the end of the day. UK resident in the previous tax year. At least 3 ties. | Qualifying days over 30: 57 - 30 = 27. Total: 35 + 27 = 62. | HMRC: 62 days "taken together with her 3 UK ties means she will be resident under the sufficient ties test". |
| Desmond | Present at midnight on 44 days; present on 50 other days but not at the end of the day. UK resident in 2015-2016. 3 ties (a country tie, a family tie and an accommodation tie). | Qualifying days over 30: 50 - 30 = 20. Total: 44 + 20 = 64. | HMRC: "a day count of 64 with 3 ties make Desmond UK resident in 2016-2017", assuming no automatic overseas test is met. |
| Benedict | Present at midnight on 85 days; present on 50 other days but not at the end of the day. UK resident in 2015-2016. 2 ties, with the 90 day tie not met. | Fewer than 3 ties, so the deeming rule does not apply. Total: 85. | On 85 days and only 2 ties, Table A needs at least 3 ties for 46 to 90 days, so "Benedict will not be UK resident for 2016-2017". |
In Benedict's case HMRC says that when checking the 90 day tie "only the days Benedict was in the UK at the end of the day are taken into account".
Transit: HMRC's examples
From RFIG20730:
| Example | Facts | Does the arrival day count? |
|---|---|---|
| Holly, example 1 | Lands from Rome at 23.05 on Monday. Flight to Philadelphia leaves at 11.05 on Tuesday. Goes to an airport hotel, sleeps, has a quick breakfast. | No. "The departure day (Tuesday), may count as a qualifying day under the deeming rule." |
| Lawrence, example 2(a) | Lands from Toulouse at 17.20 on Monday. Flight to Philadelphia leaves at 11.05 on Tuesday. Stays at an airport hotel. | No. The midnight in the UK "will not count as a day spent in the UK for SRT purposes". |
| Lawrence, example 2(b) | Same journey, but meets friends and goes to the theatre. | Yes. The activities are "to a substantial extent unrelated to his passage through the UK", so the midnight spent in the UK "will count as a day spent in the UK". |
| Lawrence, example 2(c) | Same journey, but has dinner with his team leader to discuss work for an hour and a half. | Yes, for the same reason. |
Common mistakes
- Counting any part of a day. The UK counts days present "at the end of a day". The US tests count any part of a day (see the substantial presence test), so a count made for one test does not carry over to this one.
- Treating every airport night as transit. The transit exception needs all three conditions in paragraph 22(3). In RFIG20730, a theatre trip or a work dinner defeats it.
- Forgetting the day after a transit arrival. HMRC says the departure day "may be a qualifying day under the deeming rule".
- Treating exceptional circumstances as unlimited. Paragraph 22(6) caps them at 60 days in a tax year. Later days "will count as days spent by P in the UK".
- Applying the deeming rule without its three conditions. It needs at least 3 UK ties, more than 30 qualifying days, and UK residence in at least one of the 3 preceding tax years (paragraph 23(3)).
- Adding all qualifying days instead of those after the 30th. Angharad's 57 qualifying days add 57 - 30 = 27, not 57.
- Using deemed days when checking for a 90 day tie. Paragraph 23(5) says that in deciding whether P has a 90-day tie, "qualifying days in excess of 30 are not to be treated as days spent by P in the UK".
- Using deemed days against the third automatic overseas test's limit. RFIG20720: the deeming rule "does not apply to the limit of days spent in the UK under the third automatic overseas test".
Counts are not a verdict
The day count is one input. HMRC's steps are: if you have been in the UK for fewer than 183 days, check the automatic overseas tests; if none is met, check the automatic UK tests and the sufficient ties test. Ties, work patterns, homes, split years and temporary non-residence each have their own conditions (HMRC, RDR3). HMRC also says that the count may be "reduced to take into account days spent in the UK due to exceptional circumstances" or "increased due to the deeming rule". This page counts days. It does not say whether you are UK resident or owe tax, and it is not tax advice.
Dayproven is an iPhone app that applies the UK midnight rule, with its transit and deeming rules, to a record kept on your phone, and shows where every day came from. It is coming to the App Store.