Nessa v. Chief Adjudication Officer and Anor. CIS 2326 1995
| Jurisdiction | UK Non-devolved |
| Judge | Judge J. Mesher |
| Judgment Date | 21 October 1999 |
| Court | Upper Tribunal (Administrative Appeals Chamber) |
| Subject Matter | Residence and presence conditions |
| Docket Number | CIS 2326 1995 |
| Appellant | Nessa v. Chief Adjudication Officer and Anor. |
R(is) 2/00
(Nessa v. Chief Adjudication Officer and Anor.)
Mr. J. Mesher CIS/2326/1995
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6.6.96
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21.10.99
Person from abroad - whether “habitual residence” can commence from the date of arrival in the United Kingdom
The claimant, a widow then aged 55, arrived in the United Kingdom on 22 August 1994. Previously she had lived all her life in Bangladesh although her late husband had lived in the United Kingdom at one time. She possessed a right of abode in the United Kingdom and stated that she intended to settle here. Her late husband’s brother and his family lived in the United Kingdom and she was staying with them pending finding permanent accommodation. She claimed income support with effect from 26th August but the claim was disallowed by the adjudication officer on the grounds that she was not habitually resident in the United Kingdom and so was a “person from abroad” as defined in regulation 21(3) of the Income Support (General) Regulations 1987. Therefore, in accordance with the provisions of paragraph 17 of Schedule 7 to the Regulations, her applicable amount was nil
The claimant appealed against this decision and the appeal was allowed by a social security appeal tribunal who found that “...the appellant is habitually resident as on the date of arrival in the United Kingdom and entitled to income support therefrom”. The adjudication officer appealed to the Commissioner who allowed the appeal on the grounds that, for a person to be habitually resident in a new country, an appreciable period of residence in the country must have been shown as well as a settled intention to reside there. The Commissioner ordered that the case be remitted to a new tribunal for further enquiry into the facts
On appeal by the claimant, the Court of Appeal (Morritt LJ and Sir Christopher Staughton, Thorpe LJ dissenting) upheld the Commissioner’s decision. The judgments of the Court of Appeal can be found at [1998] 2 All ER 728. The claimant appealed to the House of Lords
Held, unanimously dismissing the appeal, that:
- as a matter of ordinary language, a person is not habitually resident in a country unless he has taken up residence and lived there for a period. There is no reason to suppose that Parliament intended any different meaning when using the expression in the Income Support regulations;
- a person coming to the United Kingdom for the first time and expressing an intention to settle here cannot be accepted as habitually resident until he can show residence in fact for a period which shows that the residence has become habitual and will or is likely to continue to be habitual. It is a question of fact to be determined on the circumstances of each case whether and when habitual residence has been established. The requisite period is not a fixed one and may in an appropriate case be short;
- the position of someone coming to the United Kingdom other than for the first time is different. In some cases the adjudication officer might be satisfied that the person concerned is resuming an habitual residence previously had.
The House of Lords confirmed the order remitting the case to a new tribunal.
DECISION OF THE SOCIAL SECURITY COMMISSIONER
- The adjudication officer’s appeal is allowed. The decision of the Whittington House East social security appeal tribunal dated 6 December 1994 is erroneous in point of law, for the reasons given below, and I set it aside. The appeal is referred to a differently constituted social security appeal tribunal for determination in accordance with the directions given in paragraph 32 below (Social Security Administration Act 1992, section 23(7)(b)).
The background
2. The claimant, who was then aged 55, arrived in the United Kingdom on 22 August 1994. She had previously lived for all her life in Bangladesh. Her husband had lived and worked in the United Kingdom from 1962 until his death in 1975. She made a claim for income support on 6 September 1994. Following an interview with an officer at the local office of the Department of Social Security on 14 September 1994, the adjudication officer on the same date decided that the claimant was not entitled to income support because she was not habitually resident in the United Kingdom.
3. On 1 August 1994 an addition had been made to the definition of “person from abroad” in regulation 21(3) of the Income Support (General) Regulations 1987 (the Income Support Regulations) which applies to new claims from that date onwards:
“‘person from abroad’also means a claimant who is not habitually resident in the United Kingdom, the Republic of Ireland, the Channel Islands or the Isle of Man, but for this purpose, no claimant shall be treated as not habitually resident in the United Kingdom who is:
(a) a worker for the purposes of Council Regulations (EEC) No. 1612/68 or (EEC) No. 1251/70 or a person with a right to reside in the United Kingdom pursuant to Council Directive No. 68/360/EEC or No. 73/148/EEC; or
(b) a refugee within the definition in Article 1 of the Convention relating to the Status of Refugees done at Geneva on 28th July 1951, as extended by Article 1(2) of the Protocol relating to the Status of Refugees done at New York on 31st January 1967; or
(c) a person who has been granted exceptional leave to remain in the United Kingdom by the Secretary of State.”
By virtue of paragraph 17 of Schedule 7 to the Income Support Regulations the applicable amount of a person from abroad who is a single claimant (as in this case) is nil. The effect is thus that a single claimant who fails the habitual residence test in any week cannot be entitled to income support for that week. Claimants who come within any of sub-paragraphs (a), (b) or (c) need not show that they actually satisfy the test, but it is plain that none of those sub-paragraphs apply in the present case.
4. According to the summary of facts in the adjudication officer’s written submission to the appeal tribunal, the interview had established that the claimant had the right of abode in the United Kingdom, but that her three children had not yet received permission to join her and remained in Bangladesh. In Bangladesh she had lived in her father-in-law’s home with her own children and her husband’s other wife and her children. She had no income there and was supported by her father-in-law. On his death, the house had been left to one of his sons. In London the claimant was staying with her brother-in-law and his family.
5. The claimant appealed against the adjudication officer’s decision. Her solicitors put forward several further factors for consideration in the letter of appeal dated 14 October 1994, including the following. The claimant’s intention on coming to the United Kingdom was to settle here and she still intended to remain. She believed she had the right to make the United Kingdom her home because of her immigration status. Although she had the right of abode it took her some time in Bangladesh to arrange for her immigration. She intended to apply to the local authority for assistance in obtaining permanent housing. She had registered with a local GP. The claimant had applied for visas for her children to come to the United Kingdom with her, but was told that DNA tests would be necessary when she arrived. She had never wished to be permanently separated from her children, who were keen to join her. In Bangladesh, the claimant had lived in her father-in-law’s house in overcrowded conditions, had had no job and no bank account or property or business interests there. She brought all her belongings, mainly clothing, with her to the United Kingdom and travelled on a one-way ticket. The claimant was currently being supported by her brother-in-law and his family. It seemed natural to her and to him that as she approached her later years she should come to the United Kingdom where she could receive the emotional support of her late husband’s brother.
The appeal tribunal’s decision
6. The appeal was heard on 6 December 1994. The claimant attended the hearing with an interpreter and was represented by her solicitors. Additional evidence was given that the claimant had three adult children, and that she had had the necessary DNA test to enable a decision to be made whether to admit them to the United Kingdom or not. The adjudication officer’s representative referred to Commissioners’ decisions R(U) 7/85 and R(U) 4/86, and submitted that the claimant’s intentions and centre of interests were particularly relevant. The written submission on form AT2 had also mentioned the reasons for...
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