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Resuming Habitual Residence for UK national fleeing domestic violence from Pakistan
Hi all,
DWP made the decision that my client failed the HR test as she has not been back in the UK for an appreciable period of time.
My client and her 2 children returned from Pakistan on the 11th July after fleeing domestic violence from her husband and mother in law. She is a UK national who up until 2 years ago lived solely in the UK. I appreciate that she will have lost her HR when she moved to Pakistan as the intention was to remain there with her husband and children however, I need to challenge the decision mentioned above that she has not been back in the UK for an appreciable amount of time to have established HR.
I have looked for relevant caselaw and have read the commissioners decision on CIS/1304/1997 and CJSA/5394/1999 however they aren’t similar enough I don’t think. They both seem to focus on the fact that both claimants were outside of the UK on a temporary basis whereas her intention was for it to be permanent.
Does anyone know of any other similar case law or have any suggestions for the MR?
I will of course be advising her to put in a fresh claim for UC asap as she has since taken more steps to establish HR such as getting an interview for a job and enrolling the children into school.
Thanks, Alice
Wow 253 views but no comments. Come on people, surely someone has something similar?
Daphne can we push this case?
Think the problem is exactly what you’ve identified in your o/p though Alice - by her own account, the client lost her HR when she moved to Pakistan as intention was to leave UK permanently, therefore it’s going to be difficult to argue that an appreciable period of time has passed if she’s applied for benefit immediately on her return. As you note, repeat applicaitions and challenges is probably the best bet.
Further, R(IS)7/06 might offer some assistance perhaps, particularly point 3 which might allow FtT to award advance payment of UC?
Held by the Commissioner, allowing all three appeals, that:
1. in the light of Nessa v Chief Adjudication Officer [1999] 1 WLR 1937 (also reported as R(IS) 2/00) and R(IS) 6/96, a likelihood of remaining habitually resident is a requirement for the establishment of habitual residence in addition to a completed period of residence, but the strength of the likelihood of remaining is itself relevant when considering the length of the required period of residence and the strength of that likelihood may be demonstrated by, among other considerations, the reasons for choosing to come to the UK rather than to stay in, or go to, any other country (paragraph 15);
2.where a claimant is likely to remain in the UK permanently or for a substantial period of time, the conventional period that must have elapsed between his arrival and his establishing habitual residence is between one month and three months, but those are not rigid limits and a shorter or longer period may be required in some cases (paragraph 16);
3.where a claimant shows an intention to take up prolonged residence in the UK and the only reason for not awarding income support is that the claimant has not yet resided in the UK for a long enough period, the Secretary of State is entitled to make an advance award from the date on which habitual residence is likely to be established and, if he does not do so, a tribunal may make an award from that date (paragraph 25);
This strikes me as being one of the types of case where it might be possible to establish habitual residence on the date they returned to the UK. Looking at page 1557 of the CPAG Welfare Benefits and Tax Credits handbook it would appear that you probably should be looking at the extent to which they severed their links with the UK when they left - for example, did they continue to have a bank account here?
I would also have thought it could be relevant to consider the degree to which it would have been reasonable for them to remain in Pakistan rather than return here.
In my view it is case of a MR or a repeat application. The HR decision should be holistic based on the circumstances in which the person both left…... and returned to the UK…..(this is key?) their intentions concerning the absence (was it intended to be temporary or in this case permanent) will be considered but the decision maker in my opinion, needs to look at the change of circumstances ie the DV that necessitated the return.
If she contacted any agency they would have advised her to flee, to secure her and her childrens safety, and as she was a British National I cant see much option, other than a return, and restart permanent residence in UK.
In the short term you can refer to social care under the Children’s act for assistance with food and housing,
Its a case of arguing habitual residence is dependent on the individual circumstances in which the person left and returned to the UK; their intentions concerning the absence (was it intended to be temporary)are secondary and showing that the links to help her overcome her DV are all in the UK.
Just a personal view.
Good Luck.
Hi all, thank you so much for the replies. And apologies for the delay in responding as I did not receive the email alerts that there had been comments.
We have submitted an MR re the HR decision and are just awaiting an outcome. I went on the basis that whilst we accepted that she had lost HR when she moved to Pakistan, she should have been treated as resident in fact on the day she returned as her intentions were to remain in the UK again permanently and the DV gave her no option but to leave the marital home.
She has also submitted a new application for UC in case we need to challenge things further.
Hopefully we get a positive response but if not, I will certainly use your helpful comments in an appeal.
Fortunately she is currently being supported by SS under Children’s Act and is in temporary accommodation. She is also in receipt of Child Benefit.
Jeremy, thanks for that. Looking at the last bullet point on page 1557 above right to reside, it states that they must consider the whole period up to the date the decision is made as well, so I will advise her to put a follow up note on her journal for the MR concerning this. And yes, all links to support for DV are in the UK so Martin (and Jeremy) I’ll get her to add this in as well.