UK Social Security and Child Support Commissioners' Decisions

[2007] UKSSCSC CJSA_1223_2006 (21 February 2007)

DECISIONS OF THE SOCIAL SECURITY COMMISSIONER
1. My decisions are given under section 14(8)(a)(i) of the Social Security Act 1998:

I SET ASIDE the decisions of the Fox Court appeal tribunal, held on 25 April 2005 under references U/45/172/2005/00065 and 00039, because they are erroneous in point of law.

I give the decisions that the appeal tribunal should have given, without making fresh or further findings of fact.

My DECISIONS are:

The claimant in CJSA/1223/2006 was habitually resident on and from 20 December 2004.

The claimant in CJSA/1224/2006 was habitually resident on and from 8 December 2004.

I refer both cases to the Secretary of State to decide whether the other conditions of entitlement to a jobseeker's allowance are satisfied.

The issues

2. I have responsibility for 45 appeals in which the claimants' origin, by birth or descent, lies in the Chagos Islands. They arrived in two groups on 8 October 2004 and 20 October 2004. These two cases have been selected, with the agreement of solicitors to the parties, as representative of those appeals. They represent each group of arrivals.
3. The issues that arise in the appeals are: Did the tribunal go wrong in law in finding that the claimants had become habitually resident at the date of the decision under appeal? If it did, when did the claimants become habitually resident?
4. There are also human rights issues, but these have been dealt with by the Administrative Court in Couronne v Crawley Borough Council, the Secretary of State for Work and Pensions and the First Secretary of State [2006] EWHC 1514 (Admin). These issues were not argued before me, but the claimants have reserved their position should their cases come before the Court of Appeal.

The oral hearing

5. I directed an oral hearing. Before it took place, I held a meeting with Sean Wilson and Ben Bridge of the Office of the Solicitor to the Department for Work and Pensions and Miss Nadine Clarkson of Ole Hansen and Partners, solicitors. Also present were Mr McIntyre, the legal officer to the Commissioners who has management of this block of cases, the Commissioners' listing clerk and the clerk responsible for the management of the files. We agreed a number of management issues for the cases, including the two cases that would be heard at the oral hearing. I am grateful to all those who attended for their co-operative approach. I am particular grateful to Miss Clarkson for the assistance she gave the administrative staff by providing relevant documents.
6. The oral hearing was held in the Commissioners' court in London on 26 July 2006. The Secretary of State was represented by Mr Tim Ward, of counsel. The claimants were represented by Mr Simon Cox, of counsel. I am grateful to both counsel for their arguments at the hearing.

The draft decision

7. At the end of the oral hearing, I told the parties that I would decide whether the tribunal had gone wrong in law and issue my reasons in a draft decision. The parties would then make submissions on how I should dispose of the cases. I reserved the right to make corrections and minor changes to the reasons in my draft decision and have done so.

The Chagos Islanders and their treatment

8. The Chagos Islands lie in the Indian Ocean. They were a British colony and are now a British Overseas Territory. The inhabitants were removed in the 1960s, either to Mauritius or the Seychelles. Since then, they have attempted to return and to obtain compensation. They feel they have been badly treated. The political background is important, because the tribunal relied on it. I have, therefore, taken notice of it. I am not going to set out the details, which have been rehearsed more than once in lengthy court judgments. I can capture the essence of the claimants' grievance by quoting from the judgment of Sedley LJ in Chagos Islanders v Attorney General and Her Majesty's British Indian Ocean Territory Commissioner [2004] EWCA Civ 997, where he referred (at paragraph 6) to

'the shameful treatment to which the islanders were apparently subjected. The deliberate misrepresentation of the Ilois' history and status, designed to deflect any investigation by the United Nations; the use of legal powers designed for the governance of the islands for the illicit purpose of depopulating them; the uprooting of scores of families from the only way of life and means of subsistence that they knew; the want of anything like adequate provision for their resettlement; all of this and more is now part of the historical record.'

The claims for jobseeker's allowance

9. My concern is with the claims for jobseeker's allowance made by 45 of the islanders who arrived in the United Kingdom on 8 October 2004 and 20 October 2004. They each claimed a jobseeker's allowance shortly after their arrival. The Secretary of State decided that, at the date of decision, each of the claimants was not yet habitually resident. As a result, each claimant was a 'person from abroad': regulation 85(4) of the Jobseeker's Allowance Regulations 1996. As such, the applicable amount for each claimant was nil: paragraph 14 of Schedule 5 to the Regulations. The result was to prevent payment of any jobseeker's allowance to the claimants.
10. The claimants exercised their rights of appeal to the appeal tribunal. The claimants did not attend the hearing, but were fortunate to be represented by Miss Nadine Clarkson. She argued that each claimant had become habitually resident by the date of the decision under appeal in each case. In each case, that date was within two weeks of the claimant's arrival. She also presented detailed arguments on human rights points. No one could have presented a fully case on the facts or on the law than she did. The Secretary of State did not send a presenting officer to the hearing.
11. The tribunal found that each claimant had become habitually resident on the date of the decision in each case. The Secretary of State has appealed to the Commissioner against those decisions with the leave of the district chairman who constituted the appeal tribunal.

General evidence before the tribunal

12. The tribunal had letters setting out the grounds of appeal for each group of arrivals and a general submission. Both the letters and the submission were written by Miss Clarkson. I quote for convenience the statement of facts from the letter for the claimants who arrived on 20 October 2004. I have corrected some obvious typing mistakes.

'The facts

'The facts in respect of all of our clients and the group of people they arrived with are as follows:

1. They arrived in the UK on 20 October 2004 and resided in the UK from that date until they applied for a JSA. Since then they have continued to reside in the UK;

2. They have come to the UK from Mauritius voluntarily and for the settled purpose of finding work and education for their children;

3. They are not subject to immigration control as they are British Citizens;

4. They came on one way tickets from Mauritius and do not intend to return there;

5. They are not allowed by the UK Government to return to Diego Garcia;

6. They intend to live in the UK permanently;

7. All of them have come together to the UK as a close-knit community based on previous residence on or descent from residents of Diego Garcia;

8. Our clients' residence in Mauritius was not voluntary in that they or their parents had been forcibly moved there from Diego Garcia by the UK Government, they are prohibited from returning to Diego Garcia and would be forcibly removed were they to try to return there;

9. Those of our clients who are not already accompanied by their spouse, children or other close family members intend to make arrangements for them to come and join them as soon as they are able;

10. All of our clients who had a job and/or a tenancy in Mauritius have given them up in order to come to the United Kingdom;

11. None of our clients owns property in Mauritius or anywhere else;

12. All of our clients brought all the personal possessions they could carry in order to settle in the UK permanently;

13. None of our clients has anywhere to live except as provided in the UK and no jobs except what they might find in the UK;

14. All of our clients are members of the British Indian Ocean Territory Islanders' Movement based in the UK and were so before arriving in the UK.'

13. I also quote paragraphs 12 and 13 of Miss Clarkson's general submission, as the tribunal adopted these in its decision and they were considered in detail at the hearing before me. Again, I have corrected some obvious typing mistakes.

'12) The Appellants are habitually resident:

a) They arrived in the UK voluntarily and for a settled purpose.

b) They brought with them all the possessions they possibly could.

c) They obtained British Passports so that they would have the right of abode in the UK on their arrival.

d) The genuineness of their intention to remain in the UK is accepted by the respondents.

e) Many of them arrived with relatives (please see the attached charts).

f) Those who did not arrive with relatives intend to bring the rest of their families at the first available opportunity and took steps to arrange this, such as obtaining British passports for their family members before leaving Mauritius.

g) All of them are members of the British Indian Ocean Territory Islanders Movement, based in the UK, and were so before arriving in the UK.

h) Some of them gave up tenancies and/or jobs in Mauritius in order to come to live in the UK.

i) All of them came on one-way tickets. None owns property in Mauritius. None has any intention or financial means of returning to Mauritius. They are prohibited from returning to the Chagos Islands by the British Government.

'13) The Appellants obtained accommodation from their local housing authorities as they intend to find permanent jobs. When they have found jobs they intend to rent in the private sector. Their inability to provide for themselves financially does not lessen the habitual nature of their residence. A contrary view would mean that they could not become habitually resident until such time as they found employment and the habitual residence test "is a test of entitlement, not a bar to entitlement" CIS/4474/03.'

14. In addition to this general evidence, there was specific evidence relating to each claimant.

Specific evidence before the tribunal - CJSA/1223/2006

15. In this case, the claimant is a lady who was born on 23 July 1979 in Mauritius. She arrived in the United Kingdom on 20 October 2004, never having been here before. She claimed a jobseeker's allowance on 23 October 2004 and signed her habitual residence questionnaire on 30 October 2004. The decision-maker decided that she was not yet habitually resident on 2 November 2004.
16. The tribunal had the claimant's habitual residence questionnaire. She said that she had come here to live, leaving her pensioner parents behind. She intended to support herself by work and her first opportunity to seek work was on the day she completed her questionnaire. She was renting accommodation, which had been arranged by the local authority, and was in the process of registering with a doctor. She also provided a witness statement. I am not sure of the date when it was written, but its contents suggest that it was written before 8 November 2004. The statement gives details of the claimant's living conditions in Mauritius, how she funded her trip to the United Kingdom and how she had survived since her arrival. The first night was spent sleeping at the airport and living on money given by other passengers. She was then moved to a hotel. She was still living there at the time of her statement, but had received notice that this would end on 8 November 2004. Along with her accommodation, she was provided with a breakfast buffet. She was brought some tinned food, I believe by a fellow islander, so that she could have dinner. Although she does not quite say so, the implication is that she was filling up at breakfast in order to last until she ate the tinned food for dinner.
17. The claimant was seeking work and had applied for social security support while doing so.

Specific evidence before the tribunal - CJSA/1224/2006

18. In this case, the claimant is a gentleman who was born on 22 February 1962 in the Chagos Islands, but was forced to leave as a child. He arrived in the United Kingdom on 8 October 2004, never having been here before. He claimed a jobseeker's allowance on 8 October 2004 and signed his habitual residence questionnaire on 16 October 2004. The decision-maker decided that he was not yet habitually resident on 19 October 2004.
19. The tribunal had the claimant's habitual residence questionnaire. He said that he had come here permanently to live and intended to support himself by working. He had come with his son, who was living with him. He had left behind his partner, whom he hoped would join them shortly when he could afford the ticket, and other children, whom he hoped would come later. He had brought only clothes with him. He had left an empty bank account in Mauritius and his wife and children were living in his property there. At the time of the statement, he was living in a hotel arranged by the social services, which were also registering him with a doctor. As far as I know, there was no witness statement before the tribunal in this case.
20. The claimant was seeking work and had applied for social security support while doing so.
21. (I have a witness statement by this claimant, signed on 25 July 2006. The claimant says that he spent time at the airport and was then put into bed and breakfast accommodation along with his son. They cooked their own meals and his brother brought clothes and food and helped to support them. Social services gave him and son vouchers of £25 each a week until he found work, about six months later. He registered with a GP within a week of his arrival.)

The tribunal's reasoning

22. The chairman recorded:

'7. The objective findings of fact in relation to each of the appellants ascertained from their completion of the claim form, habitual residence test and their statements are as set out by Miss Clarkson in paragraph 12 of her submission which I accept and adopt. I also accept and adopt paragraph 13 of the submission with regard to the intention of the individual appellants … The only issue remaining is the length of time and whether that in all the circumstances amounts to an appreciable period of time.'

23. On that issue, he wrote:

'11. The statements of the individual appellants do not recount their devastation and hurt alluded to in the two decisions cited but give a personal statement of the appellants' individual circumstances. In effect the former homeland of these appellants has been ex-appropriated by the occupational forces of the United States of America in what is called "Fantasy Island" and as part of the underhand dealings with the British Government through a process of intimidation, threats, deceit and force which is a shameful record in any period of what is a democracy. Those Islanders have endured years of depravation and hurt and in the final analysis, turned to their allegiance owed to the British Crown by virtue of their British nationality and the concomitant to protection and decided to come to the United Kingdom as a last resort. They had no alternative. In my opinion, all of the foregoing constitute special circumstances and accordingly each of these cases must be considered according to their particular facts and the standard set as an appreciable period of time must be examined in the light of those circumstances. Although only a matter of days, I have no reservation that the concept of an appreciable period of time must be re-examined in relation to each of those applicants and considering all the factors, I am satisfied that they were habitually resident in the United Kingdom by the dates of the respective decisions.'

Habitual residence

24. There was little disagreement on the law between Mr Ward and Mr Cox.
25. Most rules of domestic law only apply to persons who have a specified connection with the particular state or legal system. One test of sufficient connection is habitual residence and that is the test used in the jobseeker's allowance legislation.
26. Ordinary or habitual residence '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': Lord Scarman in R v Barnet London Borough Council, ex parte Shah [1983] 2 AC 309 at 343. As part of this, the person must have spent 'an appreciable period of time' here: Lord Brandon in In re J (A Minor) (Abduction: Custody Rights) [1990] 2 AC 562 at 578. There is an exception for some returning residents (Nessa v Chief Adjudication Officer [1999] 1 WLR 1937), but it does not apply here.
27. This case, like most habitual residence cases that come before Commissioners, concerns the appreciable period necessary in order to establish habitual residence. The function which this period fulfils in habitual residence helps to identify the factors that are relevant to fixing the length of the period in a particular case. I invited the parties to address me on this function.
28. Mr Cox argued that residence for an appreciable period allowed for the possibility that the person had made a mistake in forming an intention to settle. This was, in effect, the informed decision function suggested by Miss Powick, for the Secretary of State, in CIS/1304/1997 at paragraph 30.
29. Mr Ward said that he broadly agreed with Mr Cox, but argued that the appreciable period also demonstrated a breadth and depth of connection with the jurisdiction. Habitual residence consists of two elements. The settled intention constitutes the mental element. The appreciable period constitutes the physical element. It prevents a stated intention being purely self-serving and constitutes the objective reality of residence sufficient to have become habitual.
30. Both counsel agreed that the starting point is the judgment of Auld LJ in Secretary of State for Work and Pensions v Bhakta [2006] EWCA Civ 65, reported as R(IS) 7/06:

'28. … In the context of entitlement of a person to social security benefit, just as in other contexts, it might have been sufficient and would be prudent for a decision-maker to look for a period of actual residence in this country as evidential support for an assertion of an apparently genuine intention to settle here. However, the House of Lords' acceptance in Nessa of Lord Brandon's stipulation in Re J of "an appreciable period of" residence as a constituent, not just evidence, of habitual residence for social security benefit and other purposes, has produced a more rigorous, though still elastic, test.'

This does not mean that an appreciable period of residence and a settled intention are not connected. As I wrote in CIS/1304/1997: 'Residence for an appreciable period is … closely connected to the need for a settled intention (or purpose), as it both occurs because of that intention and shows that that intention is present' (paragraph 31).

31. I accept Mr Cox's argument to the extent that it is part of the function of the appreciable period to allow time for reflection and change of mind. But that is not the whole function, because the length of the appreciable period can depend on the existence of the intention. Re F (A Minor) (Child Abduction) [1992] 1 FLR 548 is an illustration. One issue for the Court of Appeal in that case was when a family had become habitually resident in Australia. They had arrived on 21 April 1991. The trial judge found that the family had intended to emigrate and settle in Australia, becoming habitually resident there on 20 May 1991. The Court of Appeal dismissed the appeal. Butler-Sloss LJ (at 555) described some of the evidence in support of the judge's conclusion as compelling and went on: 'With that settled intention, a month can be, as I believe it to be in this case, an appreciable period of time.'
32. I accept Mr Ward's argument, although the concepts of breadth and depth perhaps tend more to metaphor than to practical guidance on relevant factors. Examples of those factors are to be found scattered within the decisions of the courts and the Commissioners. Mr Ward helpfully collected some of them. Without their supporting citations, they were: bringing possessions, doing everything necessary to establish residence before arrival, having a right of abode, bringing family members, having durable ties with the jurisdiction, ability to leave and take up residence elsewhere, whether the person was forced to flee to another country, viability, previous connections with this country, and arrangements such as registering with a doctor and a school. This is not an exhaustive list; there could not be one. It serves only to indicate the sort of factors that have been relevant in order cases in applying what Auld LJ called an elastic test.
33. In CIS/4474/2003, I wrote:

'Period of appreciable residence

'18. This was another issue considered by Mr Commissioner Howell in R(IS) 6/96. The Secretary of State submits that the period of residence that he suggested was long by the standards of what Commissioners now accept when giving their own decisions on habitual residence. He submits when Commissioners give their own decisions on habitual residence, most accept a period of between one and three months as appreciable. That is my impression, although I see fewer of my colleagues' decisions than does the Adjudication and Constitutional Issues Branch, where the representative is based.

'19. What is an appreciable period depends on the circumstances of the particular case. But I agree with the Secretary of State that in the general run of cases the period will lie between one and three months. I would certainly require cogent reasons from a tribunal to support a decision that a significantly longer period was required.

'20. I suspect that the cases in which a tribunal might find that a long period of residence was required would, on examination, better be analysed as cases in which the tribunal was not satisfied that the claimant had a settled intention to remain for the time being.'

34. My reference to a period of between one and three months was a prediction of what was likely to be appreciable. I respectfully agree with the Tribunal of Commissioners in CIS/2559/2005 at paragraph 17 that: 'The relevant period of residence required to support evidence of intention is not, in our view, something that can be reduced to a tariff.' I do not understand why the Tribunal thought that my comments might be interpreted as setting a tariff and counsel could not suggest how they might have been so understood. I remain of the view that for most cases an appreciable period is likely to be between one and three months. Mr Ward told me that that was the experience of decision-makers and he was not instructed to argue otherwise.
35. I was troubled by the Tribunal of Commissioners' approval of a passage from the tribunal's decision in that case, which appeared to suggest (in referring to family law legislation) that an appreciable period of a year might be required. I asked whether the Tribunal of Commissioners was endorsing a suggestion that the appreciable period should be so long. Neither counsel supported that view. Mr Cox argued that the tribunal was emphasising the flexibility of the habitual residence test (elastic as Auld LJ put it) and noting that when Parliament set a specific period of residence to found jurisdiction it was very inflexible. The period of one year was an illustration of the inflexibility of a precise test rather than an indication of the period that would be appreciable. I have re-read the passage from the tribunal's reasoning and accept that Mr Cox has correctly interpreted what the chairman wrote.

The law applied to these cases

36. Did the tribunal go wrong in directing itself on and applying the law? It was on this that Mr Ward and Mr Cox disagreed. Their arguments were presented in detail with reference to the evidence before the tribunal and covered a number of matters. For the moment, I am going to refer only to the political background and the steps that the claimants had taken since arrival. These matters were interrelated. I refer to the detailed attack on the tribunal's reasoning later. In essence the disagreement between counsel came to this. Mr Ward argued that the political background was irrelevant and that there was no logical connection between that background and the motivation of individual claimants in this case. Mr Cox argued that the background was relevant and correctly used by the tribunal. Which was right?
37. All cases are in a sense unique and must be analysed on their own facts. However, there are also common elements and I hope that my analysis, while not prescriptive, may provide a useful guide in other cases.
38. The length of the claimants' residence and the actions taken to settle here are relevant as evidence of a settled intention to remain. But that is not the issue here. The issue for me is residence as a separate and essential element that, together with a settled intention, constitutes habitual residence.
39. What constitutes an appreciable period must be established in two contexts: a legislative context and a factual context.
40. The legislative context is that habitual residence is a connecting factor between a claimant and the United Kingdom as a condition of entitlement to payment of a jobseeker's allowance. The same condition applies to income support, state pension credit, housing benefit and council tax benefit. These five benefits are part of the general social security system, which provides for what on the Continent of Europe is called social solidarity. In other words, the system is a means by which society as a whole cares for the needs of particular members of society. (It does other things as well, but they are not relevant here.) It is, therefore, appropriate that the residence should be sufficient to show that the claimant has at least begun to become integrated into that society. (Other benefits use ordinary residence as one of a package of connecting factors.)
41. However, the benefits to which the habitual residence test applies are not the whole of the social security system. They have in common that they are all income-related, subsistence benefits. That suggests that the period of residence should not be too long. As I wrote in CIS/4474/2003 at paragraph 16: 'Habitual residence is a test of entitlement, not a bar to entitlement.'
42. There is a further part of the legislative context. The benefits to which habitual residence applies may be income-related, subsistence benefits. But they do not target emergency and minimal assistance for those in urgent need. That is provided by the National Assistance Act 1948. That Act is not subject to the habitual residence test and is available immediately to anyone within the jurisdiction: see section 24(1) and (3).
43. Putting these points on the legislative context together leads to this. The period of residence should be long enough to show that the claimant is becoming integrated into the society for which the benefits are available. It should not be so long as to subvert the purpose of these benefits, which is to provide for basic subsistence. But nor should it be so short as to change the function of these benefits into emergency provision, which is governed by different legislation and a different connecting factor. If I had to suggest an actual minimum period, I would say that the legislative context requires residence for at least a month, although there may be exceptional cases in which a shorter period is appreciable. Of course, the length of the period of residence is not itself decisive. What matters as much as the period are the steps that the claimant has taken during that period to become settled in the United Kingdom.
44. The factual context of these cases consists of the circumstances in which the claimants came to be here. They came as advance parties with a view to improving the living conditions and financial position of themselves and their families. The political background is relevant to this context. To that extent, I accept Mr Cox's argument. That background shows and explains the determination of will and the persistence of purpose that the claimants have shown in financing their journeys to the United Kingdom, in accepting the upheaval to their own lives and those of their families in seeking to establish themselves here, and in enduring the difficulties of survival in the weeks following their arrival.
45. Those matters are relevant in a number of ways. They confirm that the claimants' stated intention to settle is genuine. They show the strength of that intention and that strength is itself part of the factual context. And they suggest that the likelihood of a change of mind is low.
46. Having set the context, it is necessary to consider the length of residence. It must be long enough to amount to residence. And it must be long enough to be capable, if accompanied by the necessary intention, of being habitual. It is possible to live in a vacuum within a society, making no attempt to become integrated within it. But that is rare. For most people, becoming habitually resident is not just a matter of remaining within the jurisdiction for a sufficient period. It also involves taking steps that are both consistent with and part of habitual residence here. Steps such as finding accommodation, looking for work, registering with a doctor, finding a school for children, becoming established within a community, starting a social life to the extent that time and other pressures allow, opening a bank account and so on. These are neither matters of evidence nor part of the context. They are steps that are normal features of being habitually resident anywhere.
47. The steps that are relevant or feasible will vary from case to case. A claimant who has no children cannot be expected to find schooling. And the evidence needed in order to open a bank account can be difficult until a claimant has been here for some time.
48. I now come to the specific facts of these cases. Both claimants, of course, were seeking work and claiming benefit as support in the meantime. (Their claims for jobseeker's allowance were dealt with solely on the grounds that they were not habitually resident, so the decision-maker did not consider whether they were available for and actively seeking work. However, they said they were seeking work and I deal with the case on that basis.)
49. In CJSA/1223/2006, the evidence showed that the claimant had established a presence here, but no more. In everything she had been dependent on others – to arrange accommodation, to provide food and to register with a doctor. At the time of her statement, she was not yet functioning independently. The only steps she had taken were to contact the relevant authorities for assistance. With their help, she had only just begun to take steps that would begin to integrate her into life and society here. Those steps concerned her basic needs for accommodation and food. They were the obvious things to arrange first. They allowed her to survive, but barely and precariously. Her accommodation and the buffet breakfast that was important to her sustenance were about to end with no indication of what would happen next. Her position here was tenuous and uncertain. This is not a criticism of the claimant or of what she did. I have not overlooked the practical difficulties in the way of establishing herself in a new country. But the fact remains that she had done very little to bring what Mr Ward called an objective reality to her claim that she was habitually resident.
50. There is less evidence on the claimant in CJSA/1224/2006. It is, I believe, fair to assume that he was in the same position as the claimant in CJSA/1223/2006. If it is not fair to put flesh on the bones of his questionnaire in this way, then the evidence was simply not available to show what further steps he had taken towards establishing himself here. If I were to take account of the evidence in the witness statement of 25 July 2006, the position would be broadly the same. The claimant was living in accommodation provided by social services and, it seems, this was more secure than for the claimant in CJSA/1223/2006. But he was dependent on his brother for food and for other unspecified support. The £25 vouchers would pay for little more than a few basic essentials.
51. The tribunal took account of the political background. It is clear from the passage I have quoted from the tribunal's reasons that this was not just used as a context in which to identify an appreciable period of residence. It was used as a justification for having a period of residence that amounted only to a matter of days. I accept Mr Ward's argument that that was wrong in law, although I have slightly different reasons from his. The background might justify a shorter rather than a longer period of residence as appreciable, but it could not compensate for the lack of any significant steps to establish a life here, which are an integral part of habitual residence. A context assumes a content. It cannot be a substitute for the lack of one, but this is how the tribunal used it. The tribunal gave the wrong significance to the background to these cases and thereby went wrong in law.
52. Apart from that, I consider that the tribunal's decisions were also perverse. In CJSA/1223/2006, the claimant had at the date of decision been present here for less than two weeks. Her actions had all been related to basic survival and she was dependent on others for that. It was unrealistic in her circumstances to expect more of her, but it was also unreasonable to find that in those circumstances she had established a sufficient connection with the United Kingdom to become habitually resident here. In CJSA/1224/2006, either the position was the same or the evidence was insufficient to allow the tribunal to make findings that showed the claimant had been resident for an appreciable period. Although both claimants were trying to find work for their financial support, they had not yet done sufficient or been here long enough to be habitually resident.
53. In conclusion, then, the tribunal misdirected itself on the significance of the political background to the cases and it came to conclusions that were 'outside the bounds of reasonable judgment' (to use the words of Lord Hoffmann in Secretary of State for Work and Pensions v Moyna at paragraph 25, reported as R(DLA) 7/03).

Did these cases justify a different approach?

54. The tribunal obviously considered that these cases were exceptional. In that, it was wrong.
55. The law is certainly sufficiently flexible to take account of unusual circumstances that do not fit the standard definition. Those circumstances may affect a class of case or an individual case. I have already mentioned that the courts have recognised returning residents as a class in respect of whom a different approach may be justified. Nessa v Chief Adjudication Officer [1999] 1 WLR 1937 decided that, depending on the connections they have maintained with this country during their absence, they may become habitually resident immediately on arrival. An instance of flexibility in an individual case is Re MacKenzie [1940] 4 All ER 310. A temporary visitor to the United Kingdom was detained for more than 50 years in what was in those days called a lunatic asylum. Her continuing presence here was not voluntary, she could not form an intention to settle and she had taken no steps to do so. Nevertheless, she was held to be habitually resident. The cases before me attract sympathy because of the claimants' plight and their determination to come to this country to better their lives. But they were not exceptional cases that justified the tribunal's approach, which amounted to rewriting the law on habitual residence. Why not?
56. Words have meanings, but it can be difficult to convey those meanings in other words and especially so to capture every nuance. Definitions can stand in for words, but they have their limitations. When cases arise that are outside those limitations, the definition must give way. That is what happened in Nessa and MacKenzie. The courts had set out a definition of ordinary and habitual residence. In doing so, they had also said that this was the ordinary meaning of the words: Lord Scarman in R v Barnet London Borough Council, ex parte Shah [1983] 2 AC 309 at 343 and Lord Brandon in In re J (A Minor) (Abduction: Custody Rights) [1990] 2 AC 562 at 578. However, Nessa and MacKenzie were cases in which the standard definition produced an outcome that was not consistent with that ordinary meaning. It is in such cases as those that the courts have departed from the standard definition to give effect to the ordinary meaning of the words. The definition was subordinated to the essence of the concept, reflecting the limitations inherent in the nature of definition.
57. As I have explained, the claimants in the cases before me were not habitually resident within the standard definition at the time their claims were decided. Nor were they habitually resident within the ordinary meaning of those words. The sympathy that the tribunal evidently felt and which is natural was, therefore, not a sufficient reason to displace the standard definition.
58. (Another possible analysis, but not the one I prefer, is that the courts departed from the standard definition because the legislative context required a different meaning, as recognised by Lord Scarman in Shah at page 343.)

The approach to compound facts – fact-finding and explanation

59. Having allowed the appeals, I do not need to deal with Mr Ward's other arguments. However, in the course of the hearing, I put a number of points to him about the reality of fact-finding and giving reasons in habitual residence cases. He said that he accepted them, but his arguments did not always seem to make sufficient allowance for them. I want to say something about that reality.
60. In habitual residence cases, the issue is usually the length of the appreciable period. There are cases in which the claimant's intention is in issue, but these are rare. The Secretary of State seldom challenges the stated intention and did not do so in these cases. The Secretary of State's written submissions to the tribunal did not question the evidence of intention and there was no presenting officer to do so at the hearing. Miss Clarkson was right to say that this was not in issue and the tribunal was entitled to proceed on that basis.
61. Whether or not a claimant is habitually resident is a question of fact: Lord Brandon in In re J (A Minor) (Abduction: Custody Rights) [1990] 2 AC 562 at 578. It is the type of fact that has conveniently been called (by Jessel MR in Erichsen v Last (1881) 8 QBD 414 at 416) a compound fact. That means that it is a fact that depends on the combined or overall significance of a number of constituent facts. The relevance of each of those facts has to be considered in the context of all the others.
62. The Secretary of State does not usually challenge either the background facts or the evidence of the steps taken by the claimant to become established in this country. Accordingly, the issue for the tribunal is usually not the constituent facts, but the finding of compound fact. In habitual residence cases, that means that the issue is usually the length of the appreciable period given the steps that have been taken to become established here. The tribunal proceeded as if the evidence on these matters was not in dispute, which it was not, and concentrated on the single issue of the appreciable period, which it was entitled to do.
63. Mr Ward pointed out some discrepancies between what Miss Clarkson had written and what the claimants said in their questionnaires and statements. Tribunals do not insist on such strict proof as do the courts. They accept statements by representatives they trust and who are in a position to know. The tribunal was right to proceed on the basis that everything said by Miss Clarkson as a solicitor was said either on instructions or from her own knowledge.
64. As to the discrepancies, the Secretary of State had made nothing of them in writing and forfeited the chance to comment at the hearing by not sending a presenting officer. Moreover, they are, in the context of the evidence as a whole, not significant. The Court of Appeal has recently emphasised the importance of concentrating on the outcome when deciding if a tribunal went wrong in law. In R (Iran) v Secretary of State for the Home Department [2005] EWCA Civ 982, Brooke LJ set out a list of errors of law and said:

'10. Each of these grounds for detecting an error of law contain the word "material" (or "immaterial"). Errors of law of which it can be said that they would have made no difference to the outcome do not matter.'

65. The tribunal said that it relied on paragraphs 12 and 13 of Miss Clarkson's submission. Mr Ward made detailed criticisms of those paragraphs, designed to show that the tribunal had a narrow and inadequate basis for its decision. However, as I pointed out to him, the tribunal also said that it had considered the facts of each case. The tribunal's reasons must be read as a whole. I see no reason to doubt that what the tribunal said was true.
66. In many cases, the significance of most or even all of the constituent facts is equivocal. Take, as an example, the fact that a claimant has come to this country alone, leaving close family members behind. From one point of view, that tells against habitual residence, as the claimant is unlikely to settle here alone. But from another point of view, it tells in favour of habitual residence, as it shows a commitment to travel to another country despite having to leave family members behind for the time being. I mention this to make this point. It is difficult to show that a tribunal went wrong in law by a discussion of the significance of individual constituent facts taken in isolation. It is often possible to come to different findings of compound fact on the same constituent facts. Pointing to a different significance for a particular fact does not undermine the tribunal's conclusion on the compound fact. It merely emphasises that the task for the tribunal is to assess the significance of a particular constituent fact not in isolation but in the context of all the others.
67. The higher the number of constituent facts, the more difficult the process of analysing each one in the context of all the others. In practice, only part of this process of analysis happens consciously. The mind produces an outcome, but does not usually provide the detailed reasoning on which it is based. That has an impact on the way in which the finding can be explained. A tribunal has an obvious difficult in explaining a process that was not wholly conscious and cannot be reconstructed. All it can do is to identify factors that have been of particular significance in its conscious consideration. In assessing the adequacy of its reasons, two factors are important. First, the reasons are primarily written to explain why the losing party has lost. And second, the reasons are written for informed 'parties who know in detail the arguments and issues in the case': Keene J speaking for the Employment Appeal Tribunal in Derby Specialist Fabrication Ltd v Burton, [2001] ICR 833 at paragraph 32. Putting those factors together in the context of these cases, I consider that the tribunal's reasons are adequate. They were written in the context of undisputed facts and emphasised for the Secretary of State, who had lost, the key consideration that influenced the tribunal in coming to its decisions. I have decided that the tribunal's reasoning was wrong in law, but the explanation of that reasoning and its application was adequate.

Disposal

68. I have decided that the tribunal was wrong to find that the claimants had become habitually resident by the date when the decision-makers decided the claims. The decision-makers had power to make advance awards under regulation 13 of the Social Security (Claims and Payments) Regulations 1987. The Court of Appeal has approved the use of this power in habitual residence cases in Secretary of State for Work and Pensions v Bhakta reported as part of R(IS) 7/06. I raised the issue whether that regulation could apply to jobseeker's allowance. The Secretary of State has submitted that it can and I deal with the cases on that basis.
69. It is sufficient for me to deal with the issue raised by the appeal, which is the claimants' habitual residence, leaving the Secretary of State to decide the claims again on that basis: see the recent Tribunal of Commissioners' decision in CIS/0624/2006.
70. There are differences between the facts of the two cases, but I cannot see any relevant distinction between them. My analysis is the same for each. I have decided, as a matter of judgment, that each of the claimants had been resident in the United Kingdom for an appreciable period when two months had passed from the date of arrival. They became habitually resident at that time. Why have I come to that conclusion?
71. The claimants came here determined to remain. That is shown by the political background and their own personal circumstances and convictions. It was possible for them to return to Mauritius and that might prove necessary. However, almost every intention to settle is qualified to some extent by possibilities that may force a change of mind. Absolute commitment is not necessary for habitual residence. The claimants also, of course, hoped to return to the Chagos Islands rather than to remain here for the rest of their lives. However, that long-term aim is not incompatible with becoming habitually resident. The claimants were sufficiently determined that they satisfied the legal requirement of having a settled intention to remain for a significant future period.
72. Their determination also shows that there was little likelihood that they would change their minds.
73. I have considered the significance of the fact that the claimants left family members behind. However, that reflects the claimants' lack of finance and the foreseeable difficulties that they would have in becoming financially independent here. It does not undermine their stated commitment to remain.
74. In the context of their intentions, I have to consider the steps they took to become established here. These were fairly minimal. Their initial presence here was tenuous at best. I have taken into account that there was a limit to what the claimants could do in their circumstances. They probably did about as much as they could, but saying that merely emphasises how tenuous their connection with this country was initially. In those circumstances, the appreciable period for habitual residence is longer than if the claimants had taken more, and more significant, steps to settle. The length of that period is the issue that the tribunal treated, rightly, as the key issue.
75. I have considered whether the claimants' connections were so few and so tenuous that a period of more than three months might be required before they became habitually resident. I have, though, concluded that the period should be shorter than that. These are my reasons. First, there is the strength of their determination and their tenacity of purpose. That forms the context in which the significance of their actions has to be assessed. It also colours their actions. Second, the claimants became part of the network provided by fellow members or supporters of the British Indian Ocean Territory Islanders Movement. They provided moral support, but there are also hints in the papers of some financial support. No doubt, the Movement also provided advice on the practicalities of living in this country. Third, there is the nature of the actions taken by the claimants. Some, naturally, were concerned with the immediate needs of providing food and accommodation. The others were directed at finding work and motivated by a desire to become self-supporting members of the community with their own accommodation for themselves and their family members. In other words, the claimants were not just concerned with their immediate needs, they were taking steps directed to establishing long-term connections with this country.
76. The precise length of the appreciable period is a matter of judgment. The circumstances of these cases do not provide a particular action or event that allows the period to be fixed with precision. The usual range for an appreciable period lies between one and three months. I have excluded the possibility of a longer period. Just looking at the steps taken by the claimants would suggest a period closer to three months than to one. However, the factors I have indicated qualify that assessment. On balance, I have fixed on two months as an appreciable period.

Signed on original on 21 February 2007

Edward Jacobs Commissioner