Nessa v Chief Adjudication Officer

For the purposes of the Income Support (General) Regulations 1987, a claimant does not ordinarily become habitually resident in the United Kingdom immediately on first arrival merely by showing a settled intention to remain. An appreciable period of residence and a settled intention are required. The period is fact-sensitive and need not be of any fixed length. The question is one of fact, assessed by reference to the ordinary meaning of habitual residence and all the circumstances. The Court of Appeal followed the approach in Re J (A Minor) (Abduction: Custody Rights), treating the relevant observations as obiter but as a considered view which should not be departed from below the House of Lords.

Mrs Nessa arrived in the United Kingdom from Bangladesh on 22 August 1994 and claimed income support on 6 September 1994. The Social Security Appeal Tribunal found that she was habitually resident from arrival, relying on her voluntary move, settled purpose and centre of interest. A Social Security Commissioner held that the tribunal had erred in law by failing to consider whether she had resided for an appreciable period and remitted the matter.

The appeal concerned whether habitual residence under regulation 21(3) of the Income Support (General) Regulations 1987 could arise immediately upon arrival, or whether an appreciable period of residence was also required.

1. Appeal dismissed. The Commissioner had correctly held that the tribunal failed to address the requirement of an appreciable period of residence.
2. Sir Christopher Staughton held that the ordinary meaning of habitual residence implies continuity already achieved. He followed the approach of Lord Brandon in Re J (A Minor) (Abduction: Custody Rights) and identified six reasons, including the ordinary language of the regulation, subsequent acceptance by the Court of Appeal, the absence of disapproval by the House of Lords, and the legislative context of the 1994 amendment.
3. Lord Justice Morritt agreed. The word habitual ordinarily denotes repetition or continuation. Physical presence and a settled intention to remain, without any appreciable period since arrival, did not satisfy regulation 21(3). The period required was not fixed and depended on the circumstances.
4. The authorities concerning ordinary residence did not establish that no period was required. Cases such as Macrae v Macrae and Lewis v Lewis involved materially different statutory contexts or an appreciable interval. Later family-law authorities were consistent with, rather than contrary to, Re J.
5. Lord Justice Thorpe dissented. He considered that habitual residence was a question of fact and that an appreciable period should not be imposed as an absolute requirement. The majority rejected that approach for social-security purposes.
6. The order was: appeal dismissed with costs; order nisi against the legal aid fund; legal aid taxation; and leave to appeal to the House of Lords granted.

• Court of Appeal (Civil Division) — appeal from the Social Security Commissioners dismissed: [1998] EWCA Civ 164.
• Social Security Commissioner — held that the Social Security Appeal Tribunal had erred in law and remitted the appeal to a differently constituted tribunal.
• Social Security Appeal Tribunal — found Mrs Nessa habitually resident in the United Kingdom from arrival and entitled to income support.