Nessa v Chief Adjudication Officer

JurisdictionEngland & Wales
JudgeLORD SLYNN OF HADLEY,LORD STEYN,LORD HOPE OF CRAIGHEAD,THE LORD CLYDE,THE LORD HUTTON
Judgment Date21 October 1999
Judgment citation (vLex)[1999] UKHL J1021-3
Date21 October 1999
CourtHouse of Lords

[1999] UKHL J1021-3

HOUSE OF LORDS

Lord Slynn of Hadley

Lord Steyn

Lord Hope of Craighead

Lord Clyde

Lord Hutton

Nessa
(Appellant)
and
The Chief Adjudication Officer

and Another

(Respondent)
LORD SLYNN OF HADLEY

My Lords,

1

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."

2

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).

3

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.

4

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."

5

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.

6

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."

7

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."

8

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

9

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."

10

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 E.R. 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.

11

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.'"

12

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.

13

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.

14

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".

15

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

16

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...

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