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Neutral Citation Number:
Reported Number: R(IS)6/96
File Number: CIS 1067 1995
Appellant:
Respondent:
Judge/Commissioner: Judge P. L. Howell Q.C.
Date Of Decision: 16/10/1995
Date Added: 25/07/2002
Main Category: Residence and presence conditions
Main Subcategory: habitual residence
Secondary Category:
Secondary Subcategory:
Notes: Person from abroad - British national temporarily absent in Burma - whether ceasing to be habitually resident in the United Kingdom The claimant was a British national who had been born in Burma and lived there all her life until she separated from her husband and came to the United Kingdom in June 1992. Her husband and children remained in Burma. She obtained employment in July 1992 but was made redundant in May 1994. She then claimed and was paid income support. In July 1994 she returned to Burma as her husband was thought to be terminally ill. She came back to the United Kingdom on 20 August 1994 and claimed income support on 31 August 1994. Her claim was refused on the ground that she was not habitually resident in the United Kingdom. A tribunal rejected her appeal and she appealed to a Commissioner. Held that: 1. it was for the adjudicating authorities to be satisfied that a claimant was not habitually resident before the special provisions for “persons from abroad” were applied. However, a tribunal should try to decide the issue by enquiring further into the facts, rather than treating it as a matter of where the “burden of proof” lay (para. 15); 2. a person who has not established residence in the United Kingdom cannot become habitually resident. To be resident a person must be making a home here (para. 19); 3. whether a person is habitually resident is a factual and objective question, to be decided by reference to all the circumstances (Re J (a minor) [1990] 2 AC 562 at 578G applied) (paras. 18 and 20); 4. in order for a person to become habitually resident, an appreciable period of time of actual residence and not merely a settled intention to reside was necessary (para. 21). What counted as an appreciable period of time depended on the facts of each case. It should be a period which showed “a settled and viable pattern of living here as a resident” (para. 28). The practicality of a person’s arrangements for their residence was a necessary part of determining whether it could be described as settled and habitual. In deciding whether a person’s plans for living here were viable, the possibility of claiming income support had to be left out of account (para. 29); 5. habitual residence was not necessarily lost during periods of temporary or occasional absence (R v. Barnet LBC ex p. Shah [1983] 2 AC 309 at 342 and Case 76/76 Di Paolo [1977] ECR 315, para. 21 considered) (paras. 26 and 32); 6. on the facts of this case the claimant has clearly become habitually resident in the UK before she left on 20 July 1994 and she did not cease to be habitually resident here while temporarily absent in Burma. The tribunal had erred in law in failing to give sufficient weight to the period and nature of her previous residence in the United Kingdom (paras. 31 and 32). The claimant’s appeal was allowed.
Decision(s) to Download: Is06_96.doc Is06_96.doc