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[2004] UKSSCSC CIS_4474_2003 (25 February 2004)

DECISION OF THE SOCIAL SECURITY COMMISSIONER

1. My decision is as follows. It is given under section 14(8)(a)(i) of the Social Security Act 1998.
2. 1. The decision of the Coventry appeal tribunal under reference U/04/033/2003/00694, held on 11 August 2003, is erroneous in point of law.
3. 2. I set it aside and substitute a decision with the consent of the parties.
4. 3. That decision is that the claimant was habitually resident in the United Kingdom on and from 4 January 2003, the date when she entered the United Kingdom.

The Secretary of State will now consider the other conditions of entitlement in order to determine whether or not the claimant is entitled to an award of income support. There will be a right to appeal against the Secretary of State's decision.

The appeal to the Commissioner

5. This is an appeal to a Commissioner against the decision of the appeal tribunal brought by the claimant with my leave. The Secretary of State's representative has proposed that I give a decision in the claimant's favour. I have accepted that submission.
6. As the decision is given with the consent of the parties, I am absolved of the duty to give reasons by virtue of regulation 28(2) of the Social Security Commissioners (Procedure) Regulations 1999. However, the Secretary of State's representative has asked me to give reasons for the benefit of decision-makers and tribunals. He argues that decision-makers and tribunals are relying on a limited and out-of-date range of authorities. As that accords with my own experience of cases that come before, I have acceded to his request. As the reasons are intended for general use, I set them out with as little reference to the actual facts of this case as possible. I must, though, add this caveat: a person's habitual residence is an issue of judgment of the significance of the facts of the particular case. There are no rigid rules that guarantee the correct answer. Different decision-makers and different tribunal may legitimately reach different judgments on the same facts.

The standard submission to tribunals

7. The Secretary of State has a standard template that is used for submissions to tribunals. That reflects the advice given to decision-makers and may influence the approach taken by tribunals. It has been in use for a long time. So long, in fact, that I remember it from my days as a tribunal chairman. It represents, as the representative submits, the initial response to the amendments that introduced the habitual residence test for income support. It has taken account of some of the later developments in the case law. But the coverage is limited and does not reflect the trends in actual decisions taken by Commissioners. An updated version would be helpful to tribunals as well as to claimants and their advisers.

Tackling a habitual residence issue

8. The issue for the decision-maker or the tribunal is: where is the claimant habitually resident? The key to getting the right answer is to know where to begin. There are two possibilities:
9. One possibility is that the claimant has never been resident here. In this case, the starting point is when the claimant last entered the United Kingdom before claiming income support.
10. The other possibility is that the claimant was previously resident in the United Kingdom. In this case, the starting point is when the claimant last left the United Kingdom. The first question to ask is: was the claimant habitually resident here at that time? If the answer is no, it is as if the claimant had never been resident here. If the answer is yes, there are three possible analyses of what has happen since.
11. The first analysis is that the claimant remained habitually resident here, despite being physically absent from the country. Obvious examples are where the claimant has gone abroad on holiday or for a short visit to relatives.
12. The second analysis is that the claimant ceased to be habitually resident here, but resumed that habitual residence on re-entry. An obvious example is where the claimant has been posted abroad by an employee and has returned to resume employment in this country. Remember that it is possible to be habitually resident in two jurisdictions at once. An extreme example is C v FC (Brussels II: Free-standing application for parental responsibility) [2004] 1 Family Law Reports 317. In that case, the judge held that parents could remain habitually resident in England despite having been away for well over 2 years and having established habitual residence in Hong Kong. Admittedly, habitual residence was there relevant to jurisdiction rather than to benefit entitlement.
13. The third analysis is that the claimant ceased to be habitually resident here (on leaving or later) and has not resumed habitual residence on re-entry. An example is where the claimant emigrated and has returned temporarily for medical treatment or to give birth before leaving again.
14. The second and third analyses show that a returning former resident does not necessarily resume habitual residence on re-entry. That is a possibility, as recognised by the House of Lords in Nessa v Chief Adjudication Officer [1999] 4 All England Law Reports 677. But whether or not it has occurred, depends on the circumstances of the case. I held an oral hearing on this issue in CIS/1304/1997 and CJSA/5394/1998. The Secretary of State's representative has quoted extensively from those decisions. It is more than 4 years since I wrote them. As they may have been lost sight of with time, I have appended the relevant paragraphs to this decision.

How the tribunal went wrong in law

15. The tribunal went wrong in law, because its reasons show that is attached undue significance to particular factors. I set them out, because they contain points relevant to habitual residence cases generally.

Ties with other countries

16. The tribunal found that the claimant had not previously been habitually resident here. It referred to her regular visits to Pakistan. That was a factor that the tribunal was entitled to take into account in deciding whether or not the claimant intended this country to be her settled residence for the time being. But it was important not to be unrealistic. The reason for those visits is easy to find. The claimant's husband and members of her family were there. With her husband elsewhere is the world, the claimant would obviously want to remain in contact with him. The same is true of any close family members. Maintaining contact and being absent from the country in order to do so are not necessarily incompatible with being habitually resident here.

Practical realities of life

17. The tribunal took into account that the claimant's daughter had not accompanied her, because her passport had to be renewed, and that her husband had remained in Pakistan, because he had not yet obtained permission to settle here. As the Secretary of State submits, those are practical difficulties that are not incompatible with the claimant being habitually resident here. The evidence showed that the passport was renewed and her daughter followed her within a month. And the time taken for immigration can be, in the representative's words, 'a difficult and protracted process'. These were practical hurdles in the way of the claimant's family as a whole establishing itself here for the time being. But the issue for the tribunal was not the habitual residence of the family, it was the habitual residence of the claimant. There was no reason why the family had to arrive and settle here as a whole before any of its members could become habitually resident. The fact that other members of the family did not travel with the claimant is a relevant factor in deciding on the claimant's settled intentions, but it is not decisive. In assessing the significance of that fact, it is necessary not to take an unrealistic of what is achievable when the co-operation of bureaucracies in this country and abroad is involved. And it is essential not to lose sight of the fact that it was an evidential factor indicative of the claimant's intentions.

Viability

18. This is an issue that was considered by Mr Commissioner Howell in R(IS) 6/96. That aspect of his decision has not been picked up and followed over the years. If anything, Commissioners have moved away from concentrating too much on viability. It is, at the risk of becoming repetitive, a factor that is relevant to habitual residence. But it must be given appropriate weight. I consider that the tribunal gave it too much emphasis in the context of the circumstances of this case.
19. The danger of overemphasising viability is this. A claimant needs to establish habitual residence in order to claim an income-related benefit. A claim would not be necessary if the claimant has a guaranteed source of funds sufficient for survival. The danger is that the only claimants who can establish habitual residence will be those who have sufficient access to funds not to need it. That cannot be right. Habitual residence is a test of entitlement, not a bar to entitlement. It must be applied in a way that allows for the possibility of a claimant establishing both habitual residence and an entitlement to income support.
20. Perhaps the best way of taking viability into account is as an evidential aspect of proof of intention. If the claimant has no apparent means of financial support, that is relevant to whether the person really had an intention to settle here. But its significance must be assessed in the context of the whole of the evidence on intention.

Period of appreciable residence

21. This was another issue considered by Mr Commissioner Howell in R(IS) 6/96. The Secretary of State submits that the period of residence that he suggested was long by the standards of what Commissioners now accept when giving their own decisions on habitual residence. He submits when Commissioners give their own decisions on habitual residence, most accept a period of between one and three months as appreciable. That is my impression, although I see fewer of my colleagues' decisions than does the Adjudication and Constitutional Issues Branch, where the representative is based.
22. What is an appreciable period depends on the circumstances of the particular case. But I agree with the Secretary of State that in the general run of cases the period will lie between one and three months. I would certainly require cogent reasons from a tribunal to support a decision that a significantly longer period was required.
23. I suspect that the cases in which a tribunal might find that a long period of residence was required would, on examination, better be analysed as cases in which the tribunal was not satisfied that the claimant had a settled intention to remain for the time being.

Centre of interests

24. This is an expression from European law. It was used in the early days following the introduction of the habitual residence test for income support. But for practical purposes in the context of income support, it does no more than state the familiar test in different language.

Signed on original

Edward Jacobs

Commissioner

25 February 2004


 


Appendix

Extracts from CIS/1304/1997 and CJSA/5394/1998

Persons returning to the United Kingdom

25. Nessa decided that the normal rule was that habitual residence could not be established until a person had been resident in the United Kingdom for an appreciable period. However, the House of Lords recognised that there might be exceptions. One was set out by Lord Slynn at page 683.

"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 All ER 375 and Swaddling v Adjudication Officer [1999] All ER (EC) 217). 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."

26. It is clear from that passage that a person who has previously been habitually resident will not automatically become habitually resident again on arriving back here. The question is: in what circumstances will habitual residence be resumed without the need for residence for an appreciable period? As the criteria to be applied in answering this question are not readily apparent from common experience or from the terms of the question itself, it is appropriate for a Commissioner to lay down guidance for the benefit of Appeal Tribunals and the officers who act on behalf of the Secretary of State.
27. An obvious starting point for identifying these criteria might appear to be the cases cited by Lord Slynn. Unfortunately, they do not help. Swaddling was a decision on European law: see paragraphs 20 to 21. Lewis may be one of those cases envisaged by Lord Slynn (at page 682) as another possible exception to the normal rule that an appreciable period of residence was required.

"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."

This may be an example of the legislative context affecting the meaning of the concept, as recognised by Lord Slynn at page 681.

A returning former resident only bypasses the appreciable period requirement

28. The only advantage which a returning former resident has over anyone else is that it is not necessary to have resided in the United Kingdom for an appreciable period before the residence becomes habitual. The evidence must show that all the other elements of habitual residence are satisfied.

Factors relevant to an appreciable period

29. Lord Slynn listed some factors that would be relevant in determining the appreciable period of residence required under the normal rule.

"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."

I assume that Lord Slynn's reference to 'durable ties' alludes to Resolution (72) 1 of the Committee of Ministers of the Council of Europe On Standardisation of the Legal Concepts of "Domicile" and of "Residence". Rule 9 reads:

"In determining whether a residence is habitual, account is to be taken of the duration and continuity of the residence as well as of other facts of a personal or professional nature which point to durable ties between a person and his residence."

All the factors that are relevant to the length of the appreciable period (except, of course, the length of actual residence) are relevant in the case of a person returning to the United Kingdom as showing whether or not habitual residence is being resumed.

Intention

30. Habitual residence is defined as involving a settled intention or purpose. However, intention alone is not decisive. In Nessa, Lord Slynn said (page 682):

"It seems to me impossible to accept the argument ... 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."

31. The words I have emphasised in that passage must be read in their context. They refer to establishing habitual residence. Intention is particularly important at that point. A person could hardly claim to be habitually resident on arriving in the United Kingdom despite intending to stay for only a few weeks. However, once habitual residence is established, it is not lost as soon as the person forms an intention to leave. There are many cases in which a person has been held to lose habitual residence on leaving the United Kingdom, but they contain no suggestion that habitual residence was lost earlier when the person decided to go abroad.
32. Although Lord Slynn's comments were not made in respect of a person who had previously been habitually resident here, they are relevant in that context. The intention of a person returning to the United Kingdom will always be relevant to show that habitual residence is being resumed and that the claimant is not, for example, residing here for a temporary purpose: see Mr Justice Lane in Cruse v. Chittum [1974] 2 All England Law Reports 940 at page 943. It will always be relevant to ask the claimant: why have you come back and how long do you intend to stay? Even if the answers to these is believed, they will not necessarily be decisive.
33. There are cases in which intention is irrelevant. So, in Re MacKenzie [1940] 4 All England Law Reports 310, a lady came to the United Kingdom on what she intended to be a temporary visit in May 1885, but was admitted to an asylum in September 1885, where she remained until her death in 1939. Mr Justice Morton held that she was ordinarily resident here despite her lack of choice. Cases like this are exceptional and unlikely to arise at the point of return of a former resident.

Why is an appreciable period of residence required?

34. The only element of habitual residence that is bypassed by a returning former resident is the need to be resident in the United Kingdom for an appreciable period. If it is possible to identify the role played by the appreciable period in habitual residence, it may be possible to identify why it is not needed in some cases. This in turn may help to identify the factors that are particularly relevant in establishing that an appreciable period is not required.
35. Objectivity certainty One possibility that I suggested at the oral hearing was that residence for an appreciable period gave objective certainty to a claimant's evidence of intention. It would overcome any doubts about the genuineness of a claimant's stated intentions. It would be in line with the general approach taken by the law in establishing a person's intentions by inference from their actions. However, this is not the reason why the law generally requires residence for an appreciable period. At least, it is not the sole reason. As Lord Slynn made clear (at page 682, quoted in paragraph 24), even if a person's stated intentions are believed, that is not sufficient to establish habitual residence.
36. Informed decision A different, but similar, suggestion was made by Miss Powick. She suggested that residence for an appreciable period would show that a person's intentions were based on knowledge of what it was like to live in the United Kingdom. Unlike my objective certainty suggestion, this concentrates not on the genuineness of the claimant's statements of intention, but on their reliability as predictions of future residence. Although this suggestion is not covered by the terms of Lord Slynn's comments at page 682, it is within their spirit.
37. Neither of these suggestions fully captures the role played by residence for an appreciable period in establishing habitual residence. Residence for an appreciable period is necessary, because it is inherent in the concept of habitual residence. It is what converts residence into habitual residence. It is also closely connected to the need for a settled intention (or purpose), as it both occurs because of that intention and shows that that intention is present. The elements of habitual residence are not entirely separate from each other. They are interrelated and interact. They cannot be understood without reference to the each other.
38. Given this intimate connection between the elements of habitual residence, it should not be surprising that each element may perform more than one function. Although the need for residence for an appreciable period cannot be wholly explained by my objective certainty function or by Miss Powick's informed decision function, residence for an appreciable period can, and does, also fulfil those functions. The objective certainty function certainly applies in the law of domicile, in which intention is relevant: see, for example, the comments of Sir Jocelyn Simon in Qureshi v. Qureshi [1971] 1 All England Law Reports 325 at pages 338 and 339. The informed decision function is not stated in the domicile case law or in the habitual residence case law, but it encapsulates a consideration that obviously must be relevant in deciding whether someone has settled in a country. So, it is relevant to consider each of these functions in the case of a returning former resident.
39. .1 It is relevant to consider whether there is doubt about the genuineness of a claimant's statements of intention on returning to the United Kingdom. If there is doubt, this may show that residence for an appreciable period is appropriate to demonstrate the genuineness of the stated intention. If there is no doubt, this may be a factor that points to habitual residence being established on arrival.
40. .2 It is relevant to consider whether the claimant is in a position to make an informed decision about residence in the United Kingdom. A claimant who has been abroad for a long time may find the changes greater than expected and the difficulties of adjusting too great. This may show that residence for an appreciable period is appropriate to test the claimant's resolve. This is unlikely to be the case for a claimant who has only been absent for a short period, but the changes in the way of life in a country can alter significantly over a short time.
41. Character of residence Both these considerations are linked to the key consideration, which is the character of the residence: see Cruse v. Chittum at pages 942 and 943. A claimant's former habitual residence in the United Kingdom may in appropriate circumstances colour the character of the residence immediately on return. The circumstances of the case must make it appropriate to link the earlier habitual residence with the resumed residence so that an appreciable period of residence is not necessary before habitual residence is resumed.
42. A three stage inquiry In a typical case, the inquiry into the facts will involve three separate but related stages: (i) the circumstances in which the claimant's earlier habitual residence was lost; (ii) the links between the claimant and the United Kingdom while abroad; and (iii) the circumstances of the claimant's return to the United Kingdom.
43. If the claimant's earlier habitual residence was lost on leaving the United Kingdom, the fact that the claimant's departure was temporary (albeit perhaps long-term) or conditional may be a point in favour of the claimant resuming habitual residence immediately on return. If the claimant left the United Kingdom with no intention of returning, that may be a point against resuming habitual residence on return. If the earlier habitual residence was lost not when the claimant left the United Kingdom but only as a result of events that occurred later, this may be a point in favour of the claimant resuming habitual residence immediately on return, especially if the loss of the earlier habitual residence was a result of circumstances outside the claimant's control.
44. The ties and contacts retained or established by the claimant while abroad must be considered. This includes contact with family and friends, property retained, and the length and purpose of visits. These show the extent to which the claimant has retained links with the United Kingdom which are sufficient to support a link between the earlier and resumed residence.
45. The circumstances of the claimant's return must show that the claimant is resettling in the United Kingdom for the time being. The significance of the circumstances of the claimant's return must be assessed in the context of the length of the claimant's absence from the United Kingdom , the changes that have occurred here during that time and the links that have been retained while abroad. The circumstances will include steps taken by the claimant preparatory to returning.
46. The circumstances of a claimant's return include the possibility of there being habitual residence elsewhere. The most likely possibility is that habitual residence may have been retained in the country from which the claimant returned to the United Kingdom, but in particular circumstances there may be other possibilities. Looking at the case from this perspective will ensure that the decision is based on the whole factual picture and not on a partial presentation of those factors which show a link with the United Kingdom. This does not mean that the test is a comparative one. It only means that it is wrong to take too narrow a perspective when considering whether the claimant has established habitual residence immediately on return to the United Kingdom.