Nessa v Chief Adjudication Officer
| Jurisdiction | England & Wales |
| Judge | SIR CHRISTOPHER STAUGHTON,LORD JUSTICE THORPE,LORD JUSTICE MORITT |
| Judgment Date | 05 February 1998 |
| Judgment citation (vLex) | [1998] EWCA Civ J0205-9 |
| Docket Number | SSTRF 96/1674/A |
| Court | Court of Appeal (Civil Division) |
| Date | 05 February 1998 |
[1998] EWCA Civ J0205-9
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION) ON APPEAL FROM SOCIAL SECURITY COMMISSIONERS
Royal Courts of Justice
Strand
London W2A 21L
Lord Justice Morritt
Lord Justice Thorpe
Sir Christopher Staughton
SSTRF 96/1674/A
MR RICHARD DRABBLE QC and MISS NATHALIE LIEVEN (instructed by Messrs T.V. Edwards, London E1 4TP) appeared on behalf of the Appellant (Plaintiff).
MR NICHOLAS PAINES QC (instructed by Solicitor of DSS, London WC2A 21S) appeared on behalf of the Respondent (Defendant).
Mrs Nessa arrived in this Country on 22nd August 1994. She was then fifty-five years old, and has lived all her life in Bangladesh. But she had been the wife of Mr Mobarik Ali. He had lived and worked in this country from 1962 until his death in 1975. It was presumably for that reason that she had the right of abode here when she arrived nineteen years later. She was not Mr Ali's only wife; nor were her three children the only children fathered by him.
Just over a fortnight later, on 6th September 1994, Mrs Nessa made a claim for income support. An Adjudication Officer decided that the claim failed on the ground that she was not habitually resident in the United Kingdom during the period for which income support was claimed.
There was an appeal to a Social Security Appeal Tribunal. Its decision was as follows:
"The Tribunal finds upon the evidence that the appellant is HABITUALLY resident as on the date of arrival in the United Kingdom and entitled to Income Support therefrom.
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. The Tribunal had regard to the case law and Commissioners' decision."
A further appeal followed, and was heard by Mr Commissioner Mesher. He held that the Social Security Appeal Tribunal had erred in law, for these reasons:
"It is evident that it 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. It also erred in finding that the claimant was actually entitled to income support without having dealt with all the conditions of entitlement. There is no alternative to referring the appeal to a differently constituted social security appeal tribunal for determination. Although there was some evidence before the appeal tribunal of 6 December 1994 about what the claimant had done between the date of claim and 6 December 1994, for instance the registration with a GP and the taking of DNA tests, I am not in a position to make the necessary findings of fact to give a decision."
There is now an appeal by Mrs Nessa to this court, after leave was granted by Simon Brown L.J.
Mrs Nessa's entitlement to income support on 6th September 1994 (for that is the relevant date) depended amongst other things on Regulation 21(3) of the Income Support (General) Regulations 1987, which had recently been amended. It provided:
" '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 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 Regulations the applicable amount of a person from abroad who is a single claimant (as in this case) is nil. It follows that Mrs Nessa was not entitled to income support on 6th September 1994 unless she was then habitually resident here.
The issue on this appeal is whether it is enough to show that the claimant was here voluntarily and for settled purposes. Or must it also be proved that she had fulfilled those two conditions for an appreciable period of time, before she could claim to be habitually resident here?
Left to myself and guided only by the ordinary English meaning of words, I would say that a person is not habitually resident here on the day when she arrives, even if she takes up residence voluntarily and for settled purposes. "Habitually", to my mind, describes residence which has already achieved a degree of continuity. I can illustrate that by this imaginary conversation:
Q. Do you habitually go to church on Sunday?
A. Yes, I went for the first time yesterday.
That does not make sense to me.
The same view was taken by Lord Brandon of Oakbrook in Re J (a Minor) (Abduction: custody rights) [1990] 2 A.C. 562. Lord Donaldson of Lymington M.R in this court had described it as a very interesting question (p.571). But Lord Brandon said:
"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 leave it with a settled intention not to return to it but to make up long-term residence in country B instead. Such a person cannot, however, become habitually resident in country B in a singe 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."
Mr Drabble, for Mrs Nessa, argues that this passage is both ob iter and wrong. He relies on two other decisions of the House of Lords where the words in question were "ordinary residence" or "ordinarily resident" Inland Revenue Commissioners v Lysaght [1928] A.C. 234 and R v Barnet BC ex parte Shah [1983] 2 A.C. 309. In the second, which was concerned with education and where there had already been a period of three years' residence, Lord Denning MR and Lord Scarman each equated "ordinarily" with "habitually", which (Lord Scarman said) "had two necessary features, namely residence adopted voluntarily for settled purposes" (p.342). But at p.344 he said:
"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."
I do not regard that case as plain authority that no appreciable period is required before residence can be described as habitual.
There were a number of other cases cited by Mr Drabble, mainly in the family jurisdiction. Thus in Macrae v Macrae [1949] P. 397, which was concerned with the Summary Jurisdiction (Separation and Maintenance) Acts, Somervill L.J. said at p.403:
"Ordinary residence can be changed in a day."
The decision in that case, as Mr Drabble accepts, was that it changed between 25th June and 15th July.
In Lewis v Lewis [1956] 1 All ER 375 Willmer J. was prepared to hold that the wife was ordinarily resident in this country from the time when she boarded a ship to come here from Australia. There were, however, two significant features in that case. First, the wife was returning to a place where she had been ordinarily resident in the past. That may well be a distinguishing feature from the case where, as here, an entirely new residence is adopted. Secondly, the statute there required that a period of ordinary resident should elapse before a certain event could take place, that is to say the invocation of the court's jurisdiction under the Matrimonial Causes Act 1950. That, as it seems to me, may well allow different treatment; it may be right to look back and say that, with hindsight, there was habitual residence from day one. It is different from the present case, where the regulations require there to be habitual residence on the day when the claim for income support is made.
Kapur v Kapur [1984] FLR 920 was another case where a period of residence was required to establish jurisdiction, although it now had to be habitual residence. The...
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