Copyright 2005 Times Newspapers Limited
The Times (London)
July 5, 2005, Tuesday
Features; 54
1751 words
ILLEGAL OVERSTAYER CAN HAVE RESIDENCE AND DOMICILE
HOUSE OF LORDS. Published July 5, 2005. Mark v Mark. Before Lord Nicholls of Birkenhead, Lord Hoffmann, Lord Hope of Craighead, Lord Phillips of Worth Matravers and Baroness Hale of Richmond.
Speeches June 30, 2005.
A PERSON could be habitually resident and domiciled in England and Wales even though her presence in the United Kingdom was a criminal offence.
The House of Lords so held in dismissing an appeal by the husband, David Alechenu Bonaventure Mark, from the dismissal by the Court of Appeal (Lord Justice Thorpe, Lord Justice Waller and Lord Justice Latham) (The Times February 24, 2004; (2005) Fam 267) of his appeal from a decision of Mr Justice Hughes (unreported (2002) EWHC 1715 (Fam) that the court had jurisdiction to hear the divorce petition of the wife, Victoria Preye Mark.
Section 5 of the Domicile and Matrimonial Proceedings Act 1973 provided, at the relevant time: "(2) The court shall have jurisdiction to entertain proceedings for divorce or judicial separation if (but only if) either of the parties to the marriage -(a) is domiciled in England and Wales on the date when the proceedings are begun; or (b) was habitually resident in England and Wales throughout the period of one year ending with that date."
Mr Charles Howard, QC, Mr Philip J. Marshall and Mr Deepak Nagpal for the husband; Mr Chima Umezuruike, Mr Razak Atunwa and Mr Adedamola Aderemi for the wife; Mr Michael Nicholls for the Queen's Proctor as advocate to the court.
LADY HALE said that domicile could arise in many contexts, as a person could have only one domicile, whereas habitual residence might have a different meaning in different statutes according to their context and purpose.
Habitual residence and ordinary residence were interchangeable concepts. There was no reason why the word "lawfully" should be implied into section 5(2) of the 1973 Act with regard to habitual residence.
The purpose of the Act had been to provide an answer to the question: "When was the connection with this country of the parties and their marriage sufficiently close to make it desirable that our courts should have jurisdiction to dissolve the marriage?": see the Law Commission Report on Jurisdiction in Matrimonial Causes (1972 Law Com No 48, paragraph 5).
If there were also proceedings in another jurisdiction which was in the circumstances more appropriate than England, then the proceedings here could be stayed, on the usual forum non conveniens ground. Alternatively, as happened in the instant case, if England was the appropriate jurisdiction, the respondent might be enjoined from continuing the proceedings elsewhere.
Consequently, residence for the purpose of section 5(2) of the 1973 Act need not be lawful residence. The question of whether the residence was habitual was a factual one which should be answered by applying the test laid down by Lord Scarman in R v Barnet London Borough Council, Ex parte Nilish Shah ((1983) 2 AC 309).
It was possible that the legality of a person's residence in England might be relevant to the factual question of whether that residence was "habitual". A person who was on the run after a deportation order or removal directions might find it hard to establish a habitual residence here. But such cases would be rare, compared with the large numbers of people who had remained here leading perfectly ordinary lives for long periods, despite having no permission to do so.
The husband's first reaction, to admit that the wife had been habitually resident here for the purpose of the instant proceedings, was obviously correct on the facts of the instant case.
There would, however, be other statutory provisions, in particular those conferring entitlement to some benefit from the state, where it would be proper to imply a requirement that the residence be lawful.
Habitual residence was simply an expression used in a variety of statutes for a variety of purposes and might thus have a different meaning according to the statutory context. Furthermore, a person might be habitually resident in more than one place at a time, or might have no habitual residence at all.
Domicile, on the other hand, was a concept of the common law, although the same word was sometimes used in civilian systems to denote something more like habitual residence. A person had always to have a domicile but could only have one domicile at a time. Hence it had to be given the same meaning in whatever context it arose.
Thus, for example, it governed capacity to marry or to make a will relating to moveable property and was one of the factors governing the formal validity of a will.
An adult could acquire a domicile of choice by the combination and coincidence of residence in a country and an intention to make his home in that country permanently or indefinitely.
There was a long line of cases showing that an alien could acquire a domicile of choice in this country even though he might be required to leave at any time by executive action with no right of appeal: see Boldrini v Boldrini and Martin ( (1932) P 9).
But what if the residence here was not only precarious but actually unlawful? That was a relatively recent phenomenon. There was no authority in England and Wales on the point until Puttick v Attorney-General ((1980) Fam 1).
However, there had been Commonwealth authority, on the basis of which Dicey and Morris, The Conflict of Laws (9th edition (1973) pp96-97) submitted that an English court would hold that a person who was illegally resident in this country could not thereby acquire an English domicile of choice. However, those authorities did not disclose a long standing and consistent approach to the issue such that the House might be reluctant to depart from it.
It was necessary, therefore, to consider the matter as one of principle. The object of the rules determining domicile was to discover the system of law with which the propositus was most closely connected for a range of different purposes.
Sometimes that connection would be an advantage to him. Sometimes it would not.
Recognising that connection despite the illegality of his presence here did not therefore offend against any general principle that a person could not be permitted to acquire a benefit from his own criminal conduct.
Unlike some of the purposes for which habitual residence might be important, the state had no particular interest one way or another. Indeed, in so far as it did have an interest, that would probably lie in accepting that those who intended to remain here permanently had acquired a domicile here, whatever their immigration status.
As a matter of principle, that connection was established by the coincidence of residence and the intention of remaining. If a person had chosen to make his home in a new country for an indefinite period of time, it was appropriate that he should be connected to that country's system of law for the kind of purposes for which domicile was relevant.
It would be absurd if this particular wife's capacity to make a will, succession to her moveable property, and her children's right to make a claim under the Inheritance (Provision for Family and Dependants) Act 1975 against her estate were not to be governed by the law of this country.
If there was no reason of public policy to deny the acquisition of a domicile of choice in such cases, could it nevertheless be said that legality was an essential element in residence, as it appeared that Dicey and Morris regarded it, or in the formation of the intention of remaining?
Both were issues of fact. As had already been seen, one could be resident in a place where one had no right to be. One could also form an intention to remain in a place despite considerable uncertainty as to whether that would be possible.
English law required only that the intention be bona fide, in the sense of being genuine and not pretended for some other purpose, such as getting a divorce to which one would not be entitled by the law of the true domicile.
A further problem in regarding legality as an essential element was the shifting nature of immigration status.
In the instant case, the wife had formed her intention of remaining here permanently after her limited leave to remain had expired and presented her petition for divorce before her position had been regularised.
But the reality of her presence and intention, the merits of her case, and the quality of her connection with the laws of this country were no different from what they would have been had she formed her intention to remain just before her limited leave to remain ran out.
Hence, there was no reason in principle why a person whose presence here was unlawful could not acquire a domicile of choice in this country. Although her presence here was a criminal offence under the Immigration Act 1971, it was by no means clear that she would be required to leave if the position was discovered.
That was not to say that the legality of a person's presence here was completely irrelevant. As in the precarious residence cases, it might well be relevant to whether or not she had formed the required intention to remain.
But that was a question of fact and not a question of law. Nor was it, as at times the Court of Appeal appeared to be saying, a matter of discretion or, as it was put in Rayden and Jackson on Divorce and Family Matters (17th edition (1997), paragraph 2.16), of the court being hostile to the assertion of a domicile of choice by an illegal entrant or resident.
Either a person had acquired a domicile of choice in this country or she had not.
If she had done so, she was not to be denied it because the court considered her case unmeritorious or tainted with moral or legal turpitude.
If she had not done so, she was not to be granted it because the court considered her virtuous. It was a matter of fact whether she had the required intention at the relevant time.
For those reasons, her Ladyship would differ from the proposition of law stated by Dicey and Morris and decline to follow the authorities cited in its support. The judge was correct in holding that the wife had acquired a domicile of choice here by the time that she presented her petition for divorce.
Lord Hope delivered a concurring opinion and Lord Nicholls, Lord Hoffmann and Lord Phillips agreed.
Solicitors: Hughes Fowler Carruthers; Osibanjo & Co, Camberwell; Queen's Proctor.
July 5, 2005
