Fri 03-Oct-08 11:17 AM by shawn

Hi

Wonder if someone can advise on query below.
Client, 70 years old, returned from Pakistan in Feb 08 after 11 year absence. Claimed PC but turned down on Habitual residence. Reclaimed after 3 months but again turned down and advised in writing to re apply in February 09.
Client is British, is trying to establish himself here but finding it difficult to get accommodation due to benefit situation so has no permanent accommodation at moment and is staying with family and friends,.
I need to know whether there has been some change that means that he has to wait until he has been here for 12 months before he passes HRT?
If so I am unaware of this!
Any help gratefully received.

The three most useful decisions I find on the HRT are Nessa v CAO (HL), CIS/3280/2003 and CIS 4474/2003.

The reference to 12 months can be found in R(IS) 6/96 (quoted in CIS/3280/2003) where the commissioner said "for a citizen of the United Kingdom, of whichever ethnic origin, entering this country after a period of living abroad and intending to take up or resume residence here on an indefinite basis without any particular close continuing ties overseas, the acquisition of habitual residence might easily be demonstrated after three to six months settled residence here. Similarly with a person who comes here to work or for education purposes for a fixed period of years under a defined and viable work contract or education programme. (Less than three months would I think be more difficult, as even a returning expatriate may find the reality of life here less to his liking than he had imagined, and change his plans again). On the other hand for a person, of whatever nationality, whose main roots and family ties are overseas, and who just happens to have come to this country, staying with friends and enjoying the London scene, with the general hope of improving language skills or obtaining work but without much evidence of actually setting about it, twelve or more months of actual residence here of a settled and viable nature would in my judgment be required before it could be said in normal parlance that they had become an habitual resident in this country.”

However that must now be read in conjunction with the case law cited.