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You are here: BAILII >> Databases >> United Kingdom House of Lords Decisions >> Nessa v. The Chief Adjudication Officer and Another [1999] UKHL 41; [1999] 4 All ER 677; [1999] 1 WLR 1937 (21st October, 1999) URL: http://www.bailii.org/uk/cases/UKHL/1999/41.html Cite as: [1999] 1 WLR 1937, [1999] 2 FLR 1116, [1999] 4 All ER 677, [1999] UKHL 41, [1999] WLR 1937, [1999] 3 FCR 538, [2000] Fam Law 28

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Nessa v. The Chief Adjudication Officer and Another [1999] UKHL 41; [1999] 4 All ER 677; [1999] 1 WLR 1937 (21st October, 1999)

HOUSE OF LORDS

Lord Slynn of Hadley Lord Steyn Lord Hope of Craighead
Lord Clyde Lord Hutton

OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT

IN THE CAUSE

ON 21 OCTOBER 1999

LORD SLYNN OF HADLEY

My Lords,

    At the relevant time a person in Great Britain was entitled to Income Support (which is a non-contributory benefit) if he was 18 or over, had no income or an income not exceeding the applicable amount and was not engaged in remunerative work (section 124 of the Social Security Contributions and Benefits Act 1992). By the Income Support (General) Regulations 1987 (S.I. 1987 No. 1967), Schedule 7, paragraph 17, subject to exceptions, for "a person from abroad who is a single claimant" the applicable amount is "nil."

    A "person from abroad" included a "claimant who is not habitually resident in the United Kingdom . . . " again subject to exceptions for persons from the European Union, for refugees and for persons granted exceptional leave to remain: regulation 21(3) of the (Income Support (General) Regulations 1987 as amended by the Income-related Benefits Schemes (Miscellaneous Amendments) No. 3 Regulations 1994 (S.I. 1994 No. 1807).

    Mrs. Nessa arrived at Heathrow on 22 August 1994. She was then aged 55 and she had lived all her life in Bangladesh. Her husband, Mr. Mobarak Ali, had lived in the United Kingdom from 1962 until he died in 1975 and when she arrived here, Mrs. Nessa had a right of abode. In Bangladesh, she had lived in the house of her husband's father with her husband's other wife and the children of both wives. On arrival she planned to live at the home of her husband's brother in England. Her three children, all adults, wanted to come to join her.

    She applied for income support. Her application form was dated 2 September 1994, but the claim was treated as made on 26 August 1994, that being the first date of her Unemployment Benefit claim. The Adjudication Officer decided on 14 September that she was "not habitually resident in the United Kingdom," his reason being: "Customer has never lived in the U.K. Husband died in U.K. 1.5.75. All other family ties and home in Bangladesh."

    That decision was communicated to her by letter dated 16 September 1994. She appealed to the Social Security Appeal Tribunal. The Tribunal received evidence that she had applied for her three children to come to live here and she had had a D.N.A. test. She had brought all her belongings (mainly it seems clothes) with her and came on a one-way ticket.

    In its decision dated 6 December 1994, but notified to the parties on 30 March 1995, the Tribunal:

"accepts the evidence of the appellant in that she decided in Bangladesh to be habitually resident in the United Kingdom. She made of her own volition the necessary arrangements regarding her immigration status in the United Kingdom. That her centre of interest is in the United Kingdom and she is here for no other purpose than to be habitually resident here."

Accordingly:

"the Tribunal finds upon the evidence that the appellant is HABITUALLY resident in the United Kingdom as on the date of arrival in the United Kingdom and entitled to Income Support therefrom."

    Despite subsequent proceedings, she has received financial support since that time.

    The Adjudication Officer appealed to the Social Security Commissioner who, on 6 June 1996, allowed the appeal on the basis that the Tribunal had "considered only whether the claimant had adopted residence in the United Kingdom voluntarily and for settled purposes and did not ask whether there had been an appreciable period of residence." The Commissioner ordered a re-hearing before a different Tribunal. He said that although there was some evidence before the Tribunal of 6 December 1994 about what the claimant had done between the date of the claim and 6 December 1994, "for instance, the registration with a G.P. and the taking of D.N.A. tests," he could not make the necessary findings. The new Tribunal:

"must consider in relation to all the weeks in issue in which the claimant was physically present in Great Britain whether it is satisfied that the claimant is not [sic] habitually resident in the United Kingdom."

    By judgment given on 5 February 1998, the Court of Appeal (Morritt, L.J. and Sir Christopher Staughton, Thorpe, L.J. dissenting) [1998] 2 All ER 728 dismissed the appeal on the basis that to be resident habitually, a person had to be in the United Kingdom for an appreciable period of time.

    The Tribunal thus decided that the appellant was "habitually resident" as on the date of arrival; she had to prove no more than, and she did prove that, she came voluntarily and for settled purposes. The starting point for this conclusion is what was said by Viscount Sumner in Inland Revenue Commissioners v. Lysaght [1928] A.C. 234, 243:

"I think the converse to 'ordinarily' is 'extraordinarily' and that part of the regular order of a man's life, adopted voluntarily and for settled purposes, is not 'extraordinary.'"

    It is said that "ordinarily resident" and "habitually resident" have the same meaning. It follows that for habitual, as for ordinary, residence, voluntary residence with a settled purpose is enough. If this is right, it is perfectly possible for habitual residence to be acquired on the first day.

    The counter-argument is that voluntariness and settled purpose are not enough. In order to be "habitual," residence must both be established and have continued for a period sufficient for it to be said as a matter of ordinary language that the individual has the habit of residing in the United Kingdom. The case relied on here is In re J. (A Minor) (Abduction: Custody Rights) [1990] 2 A.C. 562. The question there, however, was whether the child had ceased to be habitually resident in Western Australia when his mother took him away with the settled intention of living in England. Thus the issue was not whether he had acquired an habitual residence in England.

    In the Court of Appeal, Lord Donaldson, M.R. said at p. 571F-G:

"I think it is a very interesting question whether J. and his mother could establish habitual residence in this country as at the moment when they arrived in this country in circumstances in which they had every intention of staying here indefinitely and of settling here.

"But I do not think, with respect to the argument, that that is the point. The question is: did J.'s habitual residence in Australia, which certainly existed up to 21 March, continue thereafter? It may take time, I do not say it does, to establish habitual residence, but I cannot see that it takes any time to terminate it".

    (See also Re M. [1993], 1 F.L.R. 495, where a similar question was left open).

    In his speech in the House In In re J, Lord Brandon said, at p. 578:

"In considering this issue it seems to me to be helpful to deal first with a number of preliminary points. The first point is that the expression 'habitually resident,' as used in article 3 of the Convention, is nowhere defined. It follows, I think, that the expression is not to be treated as a term of art with some special meaning, but is rather to be understood according to the ordinary and natural meaning of the two words which it contains. The second point is that the question whether a person is or is not habitually resident in a specified country is a question of fact to be decided by reference to all the circumstances of any particular case. The third point is that there is a significant difference between a person ceasing to be habitually resident in country A, and his subsequently becoming habitually resident in country B. A person may cease to be habitually resident in country A in a single day if he or she leaves it with a settled intention not to return to it but to take up long-term residence in country B instead. Such a person cannot, however, become habitually resident in country B in a single day. An appreciable period of time and a settled intention will be necessary to enable him or her to become so. During that appreciable period of time the person will have ceased to be habitually resident in country A but not yet have become habitually resident in country B. The fourth point is that, where a child of J.'s age is in the sole lawful custody of the mother, his situation with regard to habitual residence will necessarily be the same as hers."

    It is common ground, and I agree, that the reference to "an appreciable period of time" being needed to establish habitual residence was obiter. In the present case, the question whether any or an appreciable period of time is needed to establish "habitual residence" is the key issue.

    There is an overlap between the meaning of "ordinary" and "habitual" residence and one is sometimes defined in terms of the other. Thus in Reg. v. Barnett London Borough Council, Ex parte Shah [1983] 2 AC 309 at p. 342D, Lord Scarman said:

"I agree with Lord Denning, M.R. that in their natural and ordinary meaning, the words [ordinarily resident] mean 'that the person must be habitually and normally resident here, apart from temporary or occasional absences of long or short duration.' The significance of the adverb 'habitually' is that it recalls two necessary features mentioned by Viscount Sumner in Lysaght's case, namely residence adopted voluntarily and for settled purposes."

    See also Kapur v. Kapur [1984] F.L.R. 920 and V. v. B. (A Minor) (Abduction) [1991] 1 F.L.R. 177, where the two words were regarded as almost meaning the same thing.

    I am not satisfied, but it is unnecessary to decide, that they are always synonymous. Each may take a shade of meaning from the context and the object and purpose of the legislation. But there is a common core of meaning which makes it relevant to consider what has been said in cases dealing with both ordinary and habitual residence.

    Viscount Sumner's speech in Lysaght's case [1928] A.C. 234 has already been referred to. In Levene v. Inland Revenue Commissioners [1928] AC 217, 225, Viscount Cave, L.C. said:

"The expression 'ordinary residence' is found in the Income Tax Act 1806 and occurs again and again in the later Income Tax Acts, where it is contrasted with the usual or occasional or temporary residence; and I think that it connotes residence in a place with some degree of continuity and apart from accidental or temporary absences."

    In Macrae v. Macrae [1949] P. 397 where the issue was whether justices had jurisdiction under the Summary Jurisdiction (Separation and Maintenance) Acts 1895 to 1925, Somerville, L.J. said at p. 403

"Ordinary residence can be changed in a day. A man is ordinarily resident in one place up till a particular day: he then cuts the connection he has with that place - in this case he left his wife, in another case he might have disposed of his house or anyhow left it and made arrangements to make his home somewhere else. Where there are indications that the place to which he moves is the place which he intends to make his home for at any rate an indefinite period, then as from that date in my opinion he is ordinarily resident at the place to which he has gone."

    In Lewis v. Lewis [1956] 1 W.L.R. 200, Willmer, .J. applied that statement and held that a wife returning to live in England after a period living in Australia, resumed her ordinary residence when she began her voyage by sea back to England.

    In Ex parte Shah [1983] 2 AC 309, 343G-H, Lord Scarman said:

"Unless, therefore, it can be shown that the statutory framework or the legal context in which the words are used requires a different meaning, I unhesitatingly subscribe to the view that 'ordinarily resident' refers to a man's abode in a particular place or country which he has adopted voluntarily and for settled purposes as part of the regular order of his life for the time being, whether of short or of long duration."

    He said further at p. 344F:

"The ordinary and natural meaning of the words supplies [a simple test]. For if there be proved a regular, habitual mode of life in a particular place, the continuity of which has persisted despite temporary absences, ordinary residence is established provided only it is adopted voluntarily and for a settled purpose."

    With the guidance of these cases it seems to me plain that as a matter of ordinary language a person is not habitually resident in any country unless he has taken up residence and lived there for a period. There may be cases where for the purposes of making particular legislation effective (as for founding jurisdiction), it is necessary that a person should be habitually or ordinarily resident in some state at any one time. In other words, there cannot be a gap. Whether that is so does not have to be decided here. It seems to me, however, that whilst of course realising that some people seeking to come here may need immediate financial assistance, it is not necessary to the working of this particular legislation that the ordinary meanings of the word should be set aside in order that there is no gap between habitual residence in one state and habitual residence in another state.

    If Parliament had intended that a person seeking to enter the United Kingdom or such a person declaring his intention to settle here is to have Income Support on arrival, it could have said so. It seems to me impossible to accept the argument at one time advanced that a person who has never been here before who says on landing, "I intend to settle in the United Kingdom" and who is fully believed is automatically a person who is habitually resident here. Nor is it enough to say I am going to live at X or with Y. He must show residence in fact for a period which shows that the residence has become "habitual" and, as I see it, will or is likely to continue to be habitual.

    I do not consider that when he spoke of residence for an appreciable period, Lord Brandon meant more than this. It is a question of fact to be decided on the date where the determination has to be made on the circumstances of each case whether and when that habitual residence had been established. Bringing possessions, doing everything necessary to establish residence before coming, having a right of abode, seeking to bring family, "durable ties" with the country of residence or intended residence, and many other factors have to be taken into account.

    The requisite period is not a fixed period. It may be longer where there are doubts. It may be short (as the House accepted in In re S. (A Minor) (Custody: Habitual Residence) [1998] AC 750, my speech at p. 763A; and Re F. (A Minor) (Child Abduction) [1994] F.L.R. 548, 555 where Butler-Sloss, L.J. "A month can be . . . an appreciable period of time.")

    There may indeed be special cases where the person concerned is not coming here for the first time, but is resuming an habitual residence previously had ( Lewis v. Lewis. [1956] 1 W.L.R. 200 : Swaddling v. Adjudication Officer, (Case C-90/97) E.C.J. Judgment 25 February 1999 (unreported)). On such facts the Adjudication Officer may or of course may not be satisfied that the previous habitual residence has been resumed. This position is quite different from that of someone coming to the United Kingdom for the first time.

    In my opinion, the Tribunal was wrong in law in considering only the voluntariness of her presence and her intention to reside. The Commissioner and the majority in the Court of Appeal were right in law to say that the facts must be investigated to see whether there was a residence which could be accepted as "habitual." I agree with the Commissioner that there were factors pointing to habitual residence having been established, even by the date of the Tribunal hearing or as I see it, even earlier, but it would be wrong for your Lordships to determine this matter. The Commissioner's Order remitting the enquiry to the Tribunal was in my view entirely appropriate.

    I would accordingly dismiss the appeal.

LORD STEYN

My Lords,

    I have had the advantage of reading in draft the speech of my noble and learned friend Lord Slynn of Hadley. For the reasons he has given I would also dismiss the appeal.

LORD HOPE OF CRAIGHEAD

My Lords,

    I have had the advantage of reading in draft the speech which has been prepared by my noble and learned friend, Lord Slynn of Hadley. For the reasons which he gives I, too, would dismiss the appeal.

THE LORD CLYDE

My Lords,

    I have had the advantage of reading in draft the speech which has been prepared by my noble and learned friend, Lord Slynn of Hadley. For the reasons which he gives I, too, would dismiss the appeal.

THE LORD HUTTON

My Lords,

    I have had the advantage of reading in draft the speech which has been prepared by my noble and learned friend, Lord Slynn of Hadley. For the reasons which he gives I, too, would dismiss the appeal.