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What happens if one has a carefully constructed plan regarding one’s non-UK residence position. You are all over your day count for the purposes of the Statutory Residence Test.
What could go wrong?
However, whilst visiting Great Aunt Hortence, you start feeling a bit unwell. Sore throat, temperature, a cough (or whatever symptoms are currently listed on Boris’ Bumper Book of Coronavirus symptoms today).
As you’ve just watched Darkest Hour, you feel it is your patriotic duty to do the equivalent of fighting the bosh on the beaches…sitting at home in isolation considering whether you will read the biography of Churchill that is currently being used as a door-stop.
But…. this period of self-isolation will take you over your day count. Yipes.
What’s the view on this?
Statutory Residence Test (“SRT”) – exceptional circumstances
This is an interesting point.
The SRT tests allow for the deduction of days attributable to exceptional circumstances to be discounted. HMRC’s manuals tell us:
“Days spent in the UK may be ignored if the individual’s presence in the UK is due to exceptional circumstances beyond their control.
This will usually only apply to events that occur while an individual is in the UK and which prevent them from leaving the UK.
Exceptional circumstances will normally apply where the individual has no choice concerning the time they spend in the UK, or in coming back to the UK.
The situation must be beyond the individual’s control.”
But what kind of circumstances will be beyond the individual’s control.
HMRC provides some – let’s say, fact specific – examples!
Anna is returning to her home in Denmark having spent her 7 week summer holiday working in the UK. This was her first visit to the UK.
On her boat journey home there is an explosion in the engine room. Emergency rescue services attend the vessel, and Anna is found unconscious and badly burned. The emergency services make the decision to airlift Anna to a specialist burns unit in the UK, where she remains for 5 months. Anna returns to Denmark as soon as she is discharged from hospital.
Anna has been in the UK for 202 days.
The disaster would be considered to be an exceptional circumstance beyond Anna’s control. However, the maximum number of days that can be ignored towards days spent in the UK is 60. So Anna has 142 days which count as days spent in the UK.
So although this clarifies the issue in relation to awful boating injuries, it is not terribly helpful for the present predicament.
More helpfully, we are told:
The type of events which may give rise to exceptional circumstances will be, by their nature, out of the ordinary and it is difficult to be prescriptive about what characteristics such an event would exhibit.
However, local or national emergencies, such as civil unrest, natural disasters, the outbreak of war or a sudden serious or life threatening illness or injury to an individual are examples of circumstances that are likely to be exceptional.
I understand that many insurance policies include a pandemic in the definition of ‘natural disaster’. So treating coronavirus as falling in to this category seems quite possible.
Clearly, if one was taking seriously ill and taken in to hospital with this virus (apologies for that cheery thought!) then I think it is clear that one would be able to rely on this section.
One would be in the same position if a spouse or civil partner or child met the same fate (yes, I am a positive individual I know!)
But what about Self Isolation? I know you need to know before downloading your Sky Atlantic Box sets.
My view is that self-isolation, in line with the Government’s guidelines would constitute ‘Exceptional Circumstances”. Of course, the guidance does not encourage diagnosis and testing might be impossible so evidence might be threadbare. I would recommend pulling together whatever evidence could help document this – eg emails etc cancelling meetings, social occasions, cancelled flights back home.
I would also suggest that, where one remained in the UK to look after a spouse or child, the same would apply. However, this is my interpretation of the law and there is, of course, no precedence for this.
What days can be deducted?
Further, for days spent in the UK due to exceptional circumstances to be ignored, an individual must intend to leave the UK as soon as those circumstances permit.
If an individual does leave the UK once the exceptional circumstances have ended, HMRC will usually accept this as evidence of such an intention.
As I said, it is my view that self-isolation would constitute exceptional circumstances, but it would be helpful if HMRC were to make an announcement on this.
We have contacted HMRC to provide their view and await their response.
If you have any queries about this, or the statutory residence test at all, then please get in touch.