Dear All,
Hope this does not sound to simple and obvious.

Client, British, lived UK 14 years. Mentally ill and was receiving Income Support etc and had council flat. Left 2004 for Guyana (permanent move). Unwell to varying degrees in Guyana. Returned UK 29/9/07 as illness deteriorated and better suited to be in UK. Admitted straight to hospital under Mental health Act. Remains there. Is claim made 14/11/07 with decision 8/1/08. Decision not habitually resident as 'appreciable period of time should be extended due to fact undergoing psychaitric treatment since arrival and not in postion to demonstrate that UK centre of interest'.

Q should habtital residence be considered as at the date of decision rather than date of claim.
I will do a new claim but client is quite unwell at the moment

Any thoughts appreciated

CIS 1304/97 and CJSA 5394/98

Why is an appreciable period of residence required?
29. Objectivity certainty One possibility that I suggested at the oral hearing was that residence for an appreciable period gave objective certainty to a claimant's evidence of intention. It would overcome any doubts about the genuineness of a claimant's stated intentions. It would be in line with the general approach taken by the law in establishing a person's intentions by inference from their actions. However, this is not the reason why the law generally requires residence for an appreciable period. At least, it is not the sole reason. As Lord Slynn made clear (at page 682, quoted in paragraph 24), even if a person's stated intentions are believed, that is not sufficient to establish habitual residence.

30. Informed decision. A different, but similar, suggestion was made by Miss Powick. She suggested that residence for an appreciable period would show that a person's intentions were based on knowledge of what it was like to live in the United Kingdom. Unlike my objective certainty suggestion, this concentrates not on the genuineness of the claimant's statements of intention, but on their reliability as predictions of future residence. Although this suggestion is not covered by the terms of Lord Slynn's comments at page 682, it is within their spirit.

31. Neither of these suggestions fully captures the role played by residence for an appreciable period in establishing habitual residence. Residence for an appreciable period is necessary, because it is inherent in the concept of habitual residence. It is what converts residence into habitual residence. It is also 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. The elements of habitual residence are not entirely separate from each other. They are interrelated and interact. They cannot be understood without reference to the each other.

It seems that if we read the above extract with:

CIS 4474/2003

“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.”

And the fact the your client returned to UK knowing that this is a better place for his health, then 1 or 2 months residence should do it?

Also make the second claim as soon possible.