Nessa v Chief Adjudication Officer

A person arriving in a country for the first time does not become habitually resident there merely by intending to settle permanently. Habitual residence requires residence in fact for a period sufficient to show that it has become habitual and is, or is likely to remain, so.

The necessary period is not fixed. Its length and the date on which habitual residence begins are questions of fact determined from all the circumstances. Relevant matters include settled purpose, possessions, prior arrangements, a right of abode, family reunification plans and durable ties. A short period may suffice where the evidence is clear. Different considerations may apply when a person resumes a habitual residence previously established in the country.

The appellant, a 55-year-old woman who had lived throughout her life in Bangladesh, entered the United Kingdom with a right of abode. She brought her belongings on a one-way ticket, intended to live with her brother-in-law and sought to have her adult children join her. Shortly after arrival, she claimed income support.

The Social Security Appeal Tribunal held that she was habitually resident from the date of arrival because she had come voluntarily for settled purposes. The Social Security Commissioner allowed the adjudication officer's appeal and ordered a rehearing because the tribunal had not considered whether there had been an appreciable period of residence. The Court of Appeal, by a majority, dismissed the claimant's appeal: [1998] 2 All ER 728.

The central issue before the House was whether habitual residence could be acquired immediately upon first arrival through voluntary presence and a settled intention, or whether residence in fact for a period was also required.

1. Appeal dismissed unanimously. Lord Slynn of Hadley delivered the leading speech. Lord Steyn, Lord Hope of Craighead, Lord Clyde and Lord Hutton expressly agreed with his reasons.

2. Per Lord Slynn, habitual residence is an ordinary expression whose application is a question of fact. Although ordinary residence and habitual residence have a common core, they are not necessarily synonymous in every legislative context. Their meaning may be affected by the context, object and purpose of the legislation.

3. For a person entering the United Kingdom for the first time, voluntary presence and a settled intention to remain are insufficient. The person must take up residence and live in the country for a period which demonstrates that the residence has become habitual and is, or is likely to continue to be, habitual. The income-support legislation did not require the ordinary meaning of habitual residence to be displaced so as to prevent a gap between habitual residence in one country and its acquisition in another.

4. The requisite period is appreciable but not fixed. Whether and when habitual residence has been established must be decided on the relevant date from all the circumstances. Relevant matters may include bringing possessions, making arrangements before arrival, possessing a right of abode, seeking to bring family members, and having durable ties with the country. The period may be longer where doubts exist, but it may be short where the circumstances clearly demonstrate habitual residence.

5. Per Lord Slynn, the position may differ where a person is resuming a habitual residence previously established in the country. In such a case, the adjudication officer must determine from the facts whether the former habitual residence has been resumed.

6. The original tribunal therefore erred in considering only the voluntariness of the appellant's presence and her intention to reside. The Commissioner and the Court of Appeal majority correctly required an investigation of whether residence had become habitual. Although evidence might have supported habitual residence by the tribunal hearing or an earlier date, that factual determination belonged to the tribunal. The Commissioner's remittal order was accordingly upheld.

1. House of Lords: Dismissed the claimant's appeal unanimously and upheld the Commissioner's order for a rehearing.

2. Court of Appeal: By a majority, dismissed the claimant's appeal on the ground that habitual residence required presence in the United Kingdom for an appreciable period: [1998] 2 All ER 728.

3. Social Security Commissioner: Allowed the adjudication officer's appeal. The Commissioner held that the first tribunal had failed to consider whether there had been an appreciable period of residence and remitted the claim to a differently constituted tribunal.

4. Social Security Appeal Tribunal: Allowed the claimant's appeal and found her habitually resident from her date of arrival because she had come voluntarily for settled purposes.