Ordinary and habitual residenceRe [1990] 2 AC 562Re [2003] 2 FLR 944Re [1990] 2 AC 562Re [1978] Ch 316Re, MacKenzie v Attorney-General [1940] 4 All ER 310Times 15 JuneRe [1996] 1 FLR 887Re [1990] 2 AC 562Re [1990] 2 AC 562
2.90Every legal system requires parties to have some form of connection with the country before they are allowed access to the courts and tribunals. The form of that connection varies from one area of law to another. Residence is a common connecting factor, of which ordinary and habitual residence are regular variants.
Ordinary and habitual
2.91The House of Lords has said that neither of these expressions is a term of art. In
Levene v Inland Revenue Commissioners,1[1928] AC 217 at 232. Lord Warrington said so of ‘ordinary residence’. And in
Re J (A Minor) (Abduction: Custody Rights),2[1990] 2 AC 562 at 578. Lord Brandon said the same of ‘habitual residence’. As they are not terms of art, the expressions have their ordinary meanings.
2.92It is not surprising that the authorities on ordinary and habitual residence are often used interchangeably. However, as ordinary words, their meaning may vary according to the statutory context and purpose.
3Baroness Hale in Mark v Mark [2006] 1 AC 98 at [15]. Whether this is so is an issue of law.
4Lord Hoffmann in Moyna v Secretary of State for Work and Pensions [2003] 1 WLR 1929 at [24]. For example:
•in the context of the Children Act 1989 ordinary residence fulfils ‘specific administrative and jurisdictional purposes’ and is not to be equated with habitual residence;
5Wall J in Re G (Adoption: Ordinary Residence) [2003] 2 FLR 944 at 951–952. •for purposes like founding jurisdiction, it may be necessary that a person must always be ordinarily or habitually resident somewhere.
6Lord Slynn in Nessa v Chief Adjudication Officer [1999] 1 WLR 1937 at 1942. 2.93It is possible that the context may have the effect that ordinary residence and habitual residence are synonymous. In
Ikimi v Ikimi,7[2002] Fam 72. the Court of Appeal considered these terms in defining the divorce jurisdiction. Thorpe LJ said:
It seems to me that, having traced the origins of the shift in language from ‘ordinarily’ to ‘habitually’, precisely the same meaning must be given to each in determining the bounds of this court’s divorce jurisdiction. In his speech in the case of
Nessa v Chief Adjudication Officer [1999] 1 WLR 1937, 1941C–F Lord Slynn left open the question as to whether the two adverbs are always synonymous. But it seems to me plain that they must be so in this field. I am further of the opinion that it is essential that the same meaning be given to ‘habitually’ wherever it appears in family law statutes. I would not however necessarily make the same extension to the Hague Convention which is an international instrument, the construction of which is settled and developed within the wider field of international jurisprudence.
8[2002] Fam 72 at [31].And in
Mark v Mark,9[2006] 1 AC 98 at [3]. counsel conceded that the concepts were interchangeable, relying on
Ikimi.
2.94As concepts, the House of Lords has accepted that there is a common core of meaning, despite possible differences in the context. In
Nessa v Chief Adjudication Office,10[1999] 1 WLR 1937. Lord Slynn said of these expressions:
There is an overlap between the meaning of ‘ordinary’ and ‘habitual’ residence and one is sometimes defined in terms of the other … I am not satisfied, but it is unnecessary to decide, that they are always synonymous. Each may take a shade of meaning from the context and the object and purpose of the legislation. But there is a common core of meaning which makes it relevant to consider what has been said in cases dealing with both ordinary and habitual residence.
11[1999] 1 WLR 1937.Meaning
2.95In
Shah v Barnet London Borough Council,12[1983] 2 AC 309. Lord Scarman set out the elements of ordinary residence:
Unless, therefore, it can be shown that the statutory framework or the legal context in which the words are used requires a different meaning, I unhesitatingly subscribe to the view that ‘ordinarily resident’ refers to a man’s abode in a particular place or country which he has adopted voluntarily and for settled purposes as part of the regular order of his life for the time being, whether of short or of long duration.
13[1983] 2 AC 309 at 343–344.He explained that the test depends:
… more upon the evidence of matters susceptible of objective proof than upon evidence as to state of mind.
14[1983] 2 AC 309 at 344.2.96Whether or not ordinary or habitual residence has been established is an issue of fact
15Lord Brandon in Re J (A Minor) (Abduction: Custody Rights) [1990] 2 AC 562 at 578. For a comparison with the EC test of habitual residence, see L-K v K (No 2) [2007] 2 FLR 729. that involves an element of judgment in assessing the overall effect of the relevant factors. So, on an appeal on a point of law, the only issue is whether the tribunal’s decision was within the bounds of reasonable judgment.
16Lord Hoffmann in Moyna v Secretary of State for Work and Pensions [2003] 1 WLR 1929 at [25].2.97In
Nessa v Chief Adjudication Officer,17[1999] 1 WLR 1937. Lord Slynn gave examples of the factors that are relevant to whether habitual residence has been established:
It is a question of fact to be decided on the date when the determination has to be made on the circumstances of each case whether and when that habitual residence has been established. 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.
18[1999] 1 WLR 1937 at 1942.2.98Another relevant factor is whether it is possible to identify where the person has lived in the country in question. The Court of Appeal explained the significance of this in
Re Brauch (A Debtor) ex p Britannic Securities and Investments Ltd.19[1978] Ch 316. Goff LJ said:
… whether you can say where the debtor was staying during the alleged period of residence or whether you cannot is part of the factors which have to be weighed in determining this question of fact, but I am satisfied that it is not right to say that you cannot find ordinary residence unless you can specify the place or places at which it has taken place.
20[1978] Ch 316 at 332–333.Buckley LJ emphasised the relevant issue:
If the evidence satisfies the court that the debtor has lived in England for a sufficiently substantial period in a manner or for a reason inconsistent with his presence in the country being of a purely transitory character, I can see no reason why the court should be precluded from finding that he ordinarily resided here … merely because the evidence does not disclose where in England he was living.
21[1978] Ch 316 at 337.2.99This passage makes the point that the reason for the residence may be of evidentiary value in showing that it was for a settled purpose. In
Kapur v Kapur,22[1984] FLR 920 at 923. Bush J considered that education was the party’s settled purpose for being in the United Kingdom. In
Shah v Barnet London Borough Council,
23[1983] 2 AC 309. Lord Scarman included this in a longer list of possibilities:
Education, business or profession, employment, health, family or merely love of the place spring to mind. And there may be many others.
24[1983] 2 AC 309 at 344.Later he explained how the evidentiary value of the evidence could vary according to the circumstances:
A man’s settled purpose will be different at different ages. Education in adolescence or early adulthood can be as settled a purpose as a profession or business in later years.
25[1983] 2 AC 309 at 344.2.100The length of residence that is necessary in order to establish ordinary or habitual residence depends on the circumstances of the case. In
Nessa v Chief Adjudication Officer,
26[1999] 1 WLR 1937. Lord Slynn said:
The requisite period is not a fixed period. It may be longer where there are doubts. It may be short …
27[1999] 1 WLR 1937 at 1943.2.101For those who have previously been ordinarily or habitually resident, it is possible to resume that residence immediately on return. Lord Slynn said:
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 … 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.
28[1999] 1 WLR 1937 at 1943.2.102Ordinary residence excludes residence that is extraordinary or abnormal. In
R (A) v Secretary of State for Health,
29[2010] 1 WLR 279. the Court of Appeal held that failed asylum seekers were not ordinarily resident for the purpose of entitlement to free NHS treatment. Ward LJ explained:
The words are to be given their ordinary meaning. Asylum seekers are clearly resident here but is the manner in which they have acquired and enjoy that residence ordinary or extraordinary? Normal or abnormal? Were they detained, then no-one would suggest they were ordinarily resident in the place of their detention. While they are here under sufferance pending investigation of their claim they are not, in my judgment, ordinarily resident here. Residence by grace and favour is not ordinary. The words must take some flavour from the purpose of the statute under consideration and, as I have set out above, the purpose of the National Health Act is to provide a service for the people
of England and that does not include those who ought not to be here. Failed asylum seekers ought not to be here. They should never have come here in the first place and after their claims have finally been dismissed they are only here until arrangements can be made to secure their return, even if, in some cases, like the unfortunate YA, that return may be a long way off.
30[2010] 1 WLR 279 at [61].2.103The need for residence to be voluntary will only be relevant if the person concerned is being detained. That detention may be lawful or unlawful. It will be lawful if the person is in custody or in hospital by reason of mental or physical health. It will be unlawful if the person has, for example, been forced to move to a country as a member of someone’s family or household. According to Lord Scarman in
Shah v Barnet London Borough Council,
31[1983] 2 AC 309. the lack of consent is relevant because:
Enforced presence … may be so overwhelming a factor as to negative the will to be where one is.
32[1983] 2 AC 309 at 344.2.104However, in
Re MacKenzie, MacKenzie v Attorney-General,
33[1940] 4 All ER 310. Morton J decided that a woman who had been detained in a lunatic asylum for 54 years had become ordinarily resident in the United Kingdom as a result of that residence. There is a hint in the reasoning that the judge believed that, under the relevant legislation, the claimant had to be ordinarily resident somewhere.
34[1940] 4 All ER 310 at 317. If this decision is sound, it is authority that in exceptional circumstances the fact of prolonged residence displaces the need for the residence to be voluntary.
2.105It is possible that this case would be decided differently today, as a person who has been detained may not be resident. The Court of Appeal has decided that a person who has been detained in prison
35HR (Portugal) v Secretary of State for the Home Department [2009] EWCA Civ 371; (2009) Times 15 June. or, by analogy, under the Mental Health Act 1983 is not resident.
2.106Ordinary or habitual residence can only be established once the person is resident.
36Re M (Abduction: Habitual Residence) [1996] 1 FLR 887 at 895 and 896. A person can only establish residence in a country by being physically present there.
37Re A (Wardship: Habitual Residence) [2007] 1 FLR 1589 at [33]. However, that presence need not be continuous.
38Re M (Abduction: Habitual Residence) [1996] 1 FLR 887 at 895 and 896.2.107Absence is not necessarily inconsistent with retaining ordinary or habitual residence. What matters is whether the circumstances of the absence show that they are inconsistent with the person establishing or maintaining that residence in a particular place. In appropriate circumstances, an absence may be sufficient to show that the person has abandoned ordinary or habitual residence on the day of departure.
39Lord Brandon in Re J (A Minor) (Abduction: Custody Rights) [1990] 2 AC 562 at 578. A person’s intention to return is relevant, but not decisive. In
R v Lancashire County Council ex p Huddleston,40[1986] 2 All ER 941. a family left England intending to return. They were kept abroad by the father’s employment for 13 years. When the daughter returned to attend university, the local authority decided that she was not ordinarily resident. The Court of Appeal decided that the local authority was entitled to come to that conclusion. It is possible that on these facts today the daughter would have been found to have resumed her ordinary residence immediately on return.
41See Lord Slynn in Nessa v Chief Adjudication Officer [1999] 1 WLR 1937 at 1943.2.108The habitual residence of a child may be determined by the parent or parents who have parental responsibility for the child. Usually, the child and the person with parental responsibility will have the same habitual residence.
42Re J (A Minor) (Abduction: Custody Rights) [1990] 2 AC 562. It is possible for one parent to change a child’s habitual residence unilaterally, although this depends on a factual enquiry tailored to the circumstances of the individual case.
43Re H (Jurisdiction) [2014] EWCA Civ 1101. The child’s state of mind may be relevant, depending on their age and maturity.
44In re LC (Children) [2014] 2 WLR 124.Lawfulness of residence
2.109In
Mark v Mark,45[2006] 1 AC 98. the House of Lords decided that it is irrelevant for the purpose of the concepts of ordinary and habitual residence whether the person’s presence in this country is lawful. However, it may be relevant in three ways.
2.110First, the statutory context may require this to be implied as a qualification. This is unlikely in tax and divorce jurisdiction cases,
46[2006] 1 AC 98 per Baroness Hale at [31] and [36]. but likely in the context of immigration cases.
47[2006] 1 AC 98 at [32].2.111Second, even if the person’s presence does not have to be lawful as a matter of statutory construction, it may be relevant as evidence of lack of ordinary or habitual residence.
48[2006] 1 AC 98 at [36]. Lord Hope said at [13] that a person’s lawful presence was relevant to their intention to remain, but not to whether they were actually present here. This was in relation to domicile rather than habitual residence, but the same reasoning may apply.2.112Third, it may be relevant to whether the residence is ordinary or extraordinary.
49R (A) v Secretary of State for Health [2010] 1 WLR 279.