Mrs. Nessa arrived at Heathrow aged 55 having lived all her life in Bangladesh. Her husband, Mr. Mobarak Ali, had lived in the United Kingdom from 1962 until he died in 1975 and when she arrived here, Mrs. Nessa had a right of abode. She hoped to live with her husband’s brother. Her three children, all adults, wanted to come to join her. She applied for income support, which was rejected as ‘not habitually resident in the United Kingdom’.
Held: A person did not become habitually resident in the UK at the moment of arriving here. Entitlement to benefits which was dependent upon the taking up of habitual residence required first the taking up of residence here and also the passing of some period of time. ‘Habitual’ here means something beyond ‘ordinary’ residence. It was a question of fact to be assessed in each case. ‘As a matter of ordinary language a person is not habitually resident in any country unless he has taken up residence and lived there for a period.’ Appeal dismissed.
The question of what constituted residence for an appreciable period of time was a question of fact to be decided on the day when the determination had to be made on the circumstances of each case. Lord Slynn said: ‘Bringing possessions, doing everything necessary to establish residence before coming, having a right of abode, seeking to bring a family, durable ties with a country of residence or intended residence, and many other factors have been taken into account. The requisite period is not a fixed period, it may be longer, where there are doubts.’
Judges:
Lord Slynn of Hadley Lord Steyn Lord Hope of Craighead Lord Clyde Lord Hutton
Citations:
Times 27-Oct-1999, Gazette 03-Nov-1999, Gazette 08-Dec-1999, [1999] UKHL 41, [1999] 4 All ER 677, [1999] 1 WLR 1937
Links:
Statutes:
Social Security Contributions and Benefits Act 1992 124, Income Support (General) Regulations 1987 (SI 1987 No 1967) Sch7 par 17
Jurisdiction:
England and Wales
Citing:
Appeal from – Nessa v Chief Adjudication Officer CA 5-Feb-1998
The requirement that an applicant for income support must show ‘Habitual residence’ required a demonstration that in the applicant was in the UK voluntarily for settled purposes and an appreciable time should pass before income a support claim was . .
Cited – Inland Revenue Commissioners v Lysaght HL 1928
The taxpayer, who was living in Ireland would come regularly to England for a total of less than three months a year, and would spend a week or so in a hotel for the purpose of board meetings. The House considered the meaning of the requirement of . .
Cited – In re J (a Minor) (Abduction: Custody rights) HL 1-Jul-1990
On 21 March 1990 the mother removed the child, aged two, from Australia, where he had been habitually resident, to England with the intention of permanently residing here. She did so without the knowledge of the father who also resided in Australia . .
Cited – C v C (Minor:Abduction: Rights of Custody Abroad) CA 1989
The English mother married the Australian father in Australia and bore their child their. After divorce both parents had custody with no right to remove the child. The mother brought the child to England without the father’s consent.
Held: The . .
Cited – Regina v Barnet London Borough Council, Ex parte Shah HL 16-Dec-1982
The five applicants had lived in the UK for at least three years while attending school or college. All five were subject to immigration control, four had entered as students with limited leave to remain for the duration of their studies, and the . .
Cited – Kapur v Kapur FD 1984
The husband had petitioned for divorce. He came to England only in August 1981, and had only limited leave to stay. The court considered whether the court had jurisdiction.
Held: There was no significant difference for this purpose between . .
Cited – V v B (A Minor) (Abduction) 1991
The mother of a child sought return of her son to Australia. The child was born in New Zealand, then came to England and the family then went to Australia. The father brought him back to England by subterfuge. He now denied the child had any . .
Cited – Levene v Inland Revenue Commissioners HL 1928
Until 1919 Mr. Levene had been both resident and ordinarily resident in the UK. Then, for five years he spent about five months (mainly in the summer) each year, staying in hotels in the UK and receiving medical attention or pursuing religious and . .
Cited – Macrae v Macrae CA 1949
The question was as to the Magistrates’ jurisdiction under the Acts, which depended upon ordinary residence: ‘Ordinary residence can be changed in a day. A man is ordinarily resident in one place up till a particular day: he then cuts the connection . .
Cited – Lewis v Lewis FD 1956
A wife returning to live in England after a period living in Australia, resumed her ordinary residence when she began her voyage by sea back to England. . .
Cited – Swaddling v Adjudication Officer ECJ 25-Feb-1999
A national of a member state having returned home after working abroad, and declaring an intention not to seek work abroad again, and applying for benefits could not be refused on the grounds that he had not been there long enough.
Cited by:
Cited – Collins v Secretary of State for Work and Pensions CA 4-Apr-2006
The claimant had dual Irish and US nationality. He therefore also was a citizen of the EU. He complained that the British rules against payment of job seekers’ allowance were discriminatory. The matter had already been to the ECJ.
Held: The . .
Cited – W v F FD 4-Apr-2007
Application by father for summary return of son to the USA. The mother said that the father had consented to his removal and acquiesced in his stay here.
Held: The mother had a settled intention to remain in the US when she first arrived, but . .
Lists of cited by and citing cases may be incomplete.
Benefits
Updated: 28 July 2022; Ref: scu.84255