FINAL RESEARCH REPORT
I had started off considering the domicile of refugees. It seemed to me that an enormous part of each decision would turn on the reasons why the person had fled, and the objective likelihood of his making a voluntary return to his country. Over time I developed a number of indicators to help decide whether a person had abandoned his domicile of origin. I was surprised to find that these indicators were all essentially negative failures to act rather than positive actions. The courts generally require positive actions, but can be influenced by the failure to do something. A striking example of this is Winans[1] where the failure of Mr Winans to purchase a property in England consistent with his wealth was held to be an indication of lack of intent to live permanently in England.
I had had great hopes of a Home Office report into the thinking of asylum seekers[2]. When I read it I found that it dealt with the thought processes and objective factors by which asylum seekers chose to come to Britain rather than another country. It had nothing at all about their long term plans or any useful information relating to domicile.
A visit to the library of the School of Oriental and African Studies produced a number of journals dealing with refugee issues. Alas they were all about current refugee issues rather than the thinking of recognised refugees. It gradually dawned on me that no-one has published a survey of the domicile thinking of recognised refugees. The practical problems surrounding such a survey probably mean that no meaningful survey has ever been attempted.
As I worked on the dissertation the position of illegal immigrants came to the fore. While virtually all recognised refugees entered Britain by unlawful means, their recognition as refugees retrospectively made their entries lawful. However, the Home Office frequently refuses political asylum to people who are genuine political refugees. In my experience the appeals system is inadequate and untrustworthy.
They often cling on as illegal immigrants. It was hard to justify a meaningful distinction between the domicile of recognised refugees and the domicile of illegal immigrants when to my knowledge as an immigration practitioner the Home Office often puts people into the wrong category.
The category illegal immigrants and refugees made more sense. In re Martin[3] was in large part about a fugitive from justice. This case is fascinating to read and intellectually challenging. I think it was wrongly decided on its facts, but the law is sound. Solomon[4] was understandable in the context of its time. It has echoes today whereby people who marry illegal immigrants get little sympathy from the immigration courts. Cruh[5] had at least entered Britain lawfully, and Mrs Cruh had married him when he was here lawfully.
In Chapter 1, I had difficulty with the long judgement in Bullock, which I felt was too long a quotation. There was a temptation to paraphrase it, but I thought it flowed better and carried more authority as a quotation. By contrast I did feel the need to improve upon MacDonald and Webber. Along the way I came across examples of what evidence had been accepted by courts, and thought it helpful to collect them. There is a dividing line between a collection of information and a laundry list, and I think I stopped just on the right side.
In Chapter 2 I was helped by my supervisor’s suggestion that I introduce some statistics. My practical experiences as an immigration solicitor helped with the compilation of the milestones of abandoning domicile. Despite this experience, I was astounded by the range of problems illegal immigrants attract.
I found the early part of Chapter 3 difficult, because European and American thinking is different to our own. Running through the case law in chronological order was helpful and threw up some surprises. The failure in Udny[6] to mention Bell v. Kennedy[7] was a great surprise to me. H. v. H. was a case that caused me to laugh out loud, and also had academic value. The Court of Appeal judgement in Mark v. Mark[8] was very amusing as the judges tried so hard not to express any views about the parties or their lawyers, but what they think leaks out round the edges. The sheer professionalism of the House of Lords judgement in Mark[9] is astounding. Lord Hope of Craighead is, or has been briefed by, a Classics scholar, and explains that Solomon was wrongly decided because the trial judge misunderstood the Latin of Marcellus. This paves the way for Baroness Hale of Richmond to review the authorities and effectively to make the law of domicile for the current century.
Chapter 4 is arguably too short. I have done thorough work in the other 3 chapters, and Chapter 4 is really a simple Conclusion.
My relations with my supervisor were satisfactory. I am grateful that he used a light touch in his comments. Like me he is bound up in teaching marking and meetings. When they came his comments were encouraging and helpful, but there were gaps of time when I was at a standstill waiting for his response. We began negotiating submission and response times which largely alleviated the problem. I am cross with myself for not divining that there must be Dissertation Guidelines and asking for them earlier. I think what happened is that the guidelines should have been given to me at our first meeting but we never met! There was some delay at the end whilst I reflected.
I gladly acknowledge and thank my tutor for his input.
Charles James
[1] Winans v AG [1904] AC 287
[2] Home Office Research Study 243 : Understanding the decision-making of asylum seekers
[3] In re Martin, Loustalan v. Loustalan [1900] P 211
[4] Solomon v. Solomon (1912) 29 WB (NSW) 68
[5] Cruh v. Cruh [1945] 2 All ER 545
[6] Udny v. Udny [1869] {L.R.} 1 Sc & Div 441
[7] Bell v. Kennedy [1868] {L.R.} 1 Sc & Div 307
[8] Mark v. Mark [2005] EWCA Civ 1164
[9] Mark v. Mark [2006] UKHL 42
TABLE OF CONTENTS
LIST OF STATUTES
LIST OF INTERNATIONAL INSTRUMENTS
LIST OF CASES
INTRODUCTION Why this topic was chosen and how it is approached
CHAPTER 1 What domicile is, why domicile is important, and how the English courts approach making decisions on domicile.
CHAPTER 2 Illegal immigrants and refugees distinguished. The special problems refugees asylum seekers and illegal immigrants present around domicile. Evidence that might indicate abandonment of the domicile of origin.
CHAPTER 3 Discusses important reported cases in detail and the important treaties and differences in approach to domicile by European countries.
CHAPTER 4 Discusses how the courts should approach the domicile of illegal immigrants and refugees.
LIST OF STATUTES
Asylum and Immigration (Treatment of Claimants) Act 2004
Civil Jurisdiction and Judgements Act 1982
Domicile and Matrimonial Proceedings Act 1973
Family Law Act 1986
Immigration Act 1971
France Statutes
Code Civil
Pakistan Statutes
Muslim Family Laws Ordinance 1963
USA Statutes
26 USC 911 Internal Revenue Code Part III
LIST OF INTERNATIONAL INSTRUMENTS
1950 European Convention on Human Rights and Fundamental Freedoms
1951 Convention Relating to the Status of Refugees (as amended by 1967 Protocol)
1955 Hague Convention Private International Law relating to the settlement of the conflicts between the law of nationality and the law of domicile.
1968 Brussels Convention on jurisdiction and the enforcement of judgements in civil and commercial matters
1988 The Lugano Convention: Convention on jurisdiction and the enforcement of judgements in civil and commercial matters 16 September 1988
1989 Hague Convention on the law applicable to succession ton the estates of deceased persons
Council Regulations EC No 1347/2000 concerning jurisdiction and the recognition and enforcement of judgements in matrimonial matters and the matters of parental responsibility
Council Regulation (EC) 44/2001 on jurisdiction and the enforcement of judgements in civil and commercial matters
Council Regulations EC No 2201/2003 concerning jurisdiction and the recognition and enforcement of judgements in matrimonial matters and the matters of parental responsibility
LIST OF CASES
Yusuf Abbas v. Ismat Mustafa [1968] PLD Karachi 480
A-G v. Yule and Mercantile Bank of India (1931) 145 LT 9
Aikman v. Aikman (1861) 4 L.T. 374
Begum (Rokeya) [1983] Imm AR 163
Bell v. Kennedy [1868] {LR} 1 Sc & Div 307
Khanchan Bibi and Anwar Khatun v. Entry Clearance Officer Dhaks (12488)[1995]
Tohura Bibi v. Entry Clearance Officer Dhaka [2007] EWCA Civ 740
Boldrini v. Boldrini and Martini [1932] P 9
Buswell v. IRC [1974] 1 WLR 1632
Collier v. Rivaz (1841) 2 Curt 855
Commissioners of Charitable Donations in Ireland v. Devereux (1842) 13 Sim. 14
Cruh v. Cruh [1945] 2 All ER 545
Cyganik v. Agulian [2006] EWCA Civ 129
De Bonneval v. de Bonneval (1838) 1 Curt. 856
Christine de Nichols v. Curlier and Others [1900] AC 21
Ex p. Donnelly 1915 WLD 29
Doucet v. Geoghan [1878] 9 Ch D 441
R. v. SSHD ex p. Naheed Ejaz [1994] QB 496
In re Flynn, Flynn v. Flynn [1968] 1 W.L.R. 103
Re Fuld (No 3); Hartley and Another v. Fuld and Others (Attorney General Intervening) [1966] 2 W.L.R. 717
H. v. H. (Queen’s Proctor Intervening) (Validity of Japanese Divorce) 14 September 2006 reported in Family Law Week
Haque v. Haque (1962) 108 C.L.R.
IRC v. Bullock [1976] 1 W.L.R. 1178
I.R.C. V. Duchess of Portland 1982 STC 149
Jablonowski v. Jablonowski (1973) 28 DLR (3d) 440
Jopp v. Wood (1865) 4 De G.J. & Sm 616
Re Lloyd Evans, National Provincial Bank v. Evans [1947] Ch 695
Lord v. Colvin (1859) 4 Drew 366 (later Moorhouse v. Lord, below)
Abdul Mannan [1971] 1 W.L.R. 859
Mark v. Mark [2005] UKHL 42
In re Martin, Loustalan v. Loustalan [1900] P 211
In the matter of the estate of FANNIE MAY, Deceased. Court of Appeals of New York 305 N.Y. 486; 114 N.E. 2d 4; 1953 N.Y. LEXIS 791
May v. May [1943] 2 All ER 146
Morgan v. Cilento [2004] EWHC 188 (Ch)
Robert Moore SC 3044/00
Moorhouse v. Lord (1863) 10 H.L. Cas 272
Puttick v. Attorney General [1980] Fam 1
R. v. Entry Clearance Officer Islamabad, ex p. Ali (CO/3585/97) 20 January 1999 QBD
R. v. SSHD ex p. Naheed Ejaz [1994] QB 496
R. v. SSHD ex p. Parvaz Akhtar [1981] QB 46
R. v. SSHD ex p. Sultan Mahmood [1981] QB 59
Scappaticci v. A-G [1955] 1 All ER 193
Solomon v. Solomon (1912) 29 WB (NSW) 68
Re Steer [1858] 3 H & N 594
Suglove v. Oklahoma Tax Commissioner 1979 OK 168, 605 P 2d 1315
Szechter (orse Karsov) v. Szechter [1971] P 286
Udny v. Udny [1869] {L.R.} 1 Sc & Div 441
Wahl v. A-G [1932] 147 L.T. 382
Whicker v. Hume (1858) 7 H.L. Cas 124
Winans v. AG [1904] AC 287
In the matter of Wu (1994) F.L.C. 92-477
S. Yemen [2003] UKIAT 4 June 2003, unreported
INTRODUCTION
I came to domicile as an Immigration practitioner in the early 1980s. Many of my clients were Muslim immigrants originally from Pakistan and Bangladesh. They had entered into polygamous marriages “back home”, and the Home Office or Entry Clearance officers were arguing that the clients had acquired a domicile of choice in England and Wales before the polygamous marriages were celebrated. In consequence the marriages were not valid and my clients could not bring their wives and children to England.
My clients needed to establish that at the date of the marriage(s) they had not changed from their domiciles of origin. This began my interest in domicile.
I knew socially earlier generations of refugees from the old Soviet bloc who were shaken by the collapse of Communism because it meant they could go “home” -but they now realised they didn’t want to!
Although it was not expressed in these terms, they were shocked that they had changed from their domicile of origin in Eastern Europe to a domicile of choice in the United Kingdom without realising it.
In the 1990s and the early years of this century I had large numbers of asylum seeker clients. (Once their case was won they generally ceased to be clients unless or until they required family reunion or qualified for British Citizenship.) Many saw their stay in the UK as temporary until the government of their home country changed. Others saw no realistic likelihood that they would ever be able to go home. Some, particularly from Kosovo and the Democratic Republic of Congo had had such awful experiences that they never wanted to see that country again.
In the 1990s and in the current decade there has been very considerable immigration, both legal and illegal.
How the Courts should determine the domicile of illegal immigrants and refugees is going to become an important issue as growing numbers of recognised refugees, asylum seekers, and illegal immigrants die intestate in England and Wales. The determination of domicile of a legal immigrant is often difficult, but the determination of domicile of a refugee or of an illegal immigrant is often even more difficult.
My background is as a practitioner, so as well as assisting the development of the law. I am disposed to look for evidence that may be available in respect of an individual.
“Domicile” and “domicil” are two spellings for the same word. I have not been able to find that there is any difference between the two words, save that “domicil” is also the French spelling. When quoting I use the original spelling, and for myself use “domicile”. A “propsitus” is the person about whom the domicile decision is to be made. I do not deal with “expatriates” as they are usually neither illegal immigrants nor recognised refugees.
This thesis explores the problems.
Chapter 1 discusses what domicile is, why domicile is important, and how the English courts approach making decisions on domicile.
Chapter 2 distinguishes between the different positions of illegal immigrants and recognised refugees. The special problems illegal immigrants, asylum seekers and especially refugees present around domicile are discussed. Evidence that might indicate abandonment of the domicile of origin is suggested.
Chapter 3 discusses differences in approach to domicile by European countries, the important treaties and the major English and Scottish reported cases in detail.
Chapter 4 discusses how the courts should approach the domicile of illegal immigrants and refugees.
Chapter 1
explains what domicile is, why domicile is important, and how the courts approach making decisions on domicile.
What is domicile?
Domicile is entirely a legal concept. Domicile is a deemed connection to a particular legal system. My domicile determines which personal law applies to me. A married Muslim with England and Wales domicile may go through a ceremony of marriage in a Muslim country. By the local law the marriage is valid but our courts will not recognise his second marriage because the man has England and Wales domicile which does not permit polygamous marriages.
In the case of a child born of refugees or immigrants or expatriates the child’s domicile may, by operation of law, be that of a country he has never seen and of which he is not a national. In certain circumstances a person’s domicile may be that of a country in which he is an illegal immigrant[1] or even where he is detained and a deportation order against him has been signed[2].
There is no “American domicile” or “British domicile”. Each state and territory of the United States of America has its individual legal system and hence its individual domicile but there is no generic American domicile. The United Kingdom has domiciles of Scotland, Northern Ireland, and England and Wales. Close to us are the Isle of Man and numerous Channel Islands, each of which has its distinct legal system and hence its distinct domicile.
There is a theoretical question of whether after Devolution Wales really has the same legal system as England, but as that is not relevant to this thesis I shall assume that there is no significant difference. The domicile of “England and Wales” is described throughout as “England” or “English”, but Wales is always meant to be included.
If I have domicile of England and Wales I have domicile of the whole of England and Wales, from Northumberland to Cornwall and Pembroke, even if I have never left Yorkshire. Should Yorkshire leave England and Wales my Yorkshire domicile will retrospectively always have been Yorkshire.
There is often linguistic confusion between domicile and “habitual residence”, and confusion between nationality and domicile. They are discussed in this chapter and particularly in Chapter 3.
There is a long history to the law of domicile. The Greeks and the Romans frequently found they had communities of aliens in their cities, or within their empires, which followed their native laws and customs in their own communities. They asked the Greek or Roman municipal courts to resolve disputes arising from agreements made amongst them. These agreements implicitly and sometimes explicitly imported the law and thinking of their home communities.
Justinian distinguished between the “universal law” and the “civil law”.
“Every people which is governed by laws and customs uses partly a law peculiar to itself, partly a law common to all mankind. For the law which each people makes for itself is peculiar to itself and is called the civil law, as being the law peculiar to the community in question. But the law which natural reason has prescribed for all mankind is held in equal observance amongst all peoples, and is called universal law, as being the law which all peoples use. Thus the Roman People uses a law partly peculiar to itself, partly common to all mankind.”[3]
Every conqueror has had to decide whether to attempt to enforce its law and customs or whether to allow subject peoples to continue to operate under their traditional laws and customs.
Machiavelli recommends
“If the ruler wants to keep hold of his new possessions, he must bear two things in mind: first that the family of the old prince must be destroyed; next, that he must change neither their laws nor their taxes.”[4]
What happens when you have not conquered the aliens but they have voluntarily chosen to live in your country? If there is economic benefit from having them live with you, there is an incentive to recognise their customs and laws.
The law of domicile which grew up in England (and Wales) has integral to it the concept that each individual has a permanent home.
“A person may be said to have his home in a country if he resides in it without any intention of at present removing from it permanently or for an indefinite period. But a person does not cease to have his home in a country merely because he is temporarily resident elsewhere; and a person who has formed the intention of leaving a country does not cease to have his home in it until he acts according to that intention.”[5]
A person notionally always has a domicile, and only ever has one domicile at a time.
“It is a settled principle that no man shall be without a domicil; and to secure this end the law attributes to every individual as soon as he is born the domicil of his father if the child be legitimate, and the domicil of his mother if the child be illegitimate. This is called the domicil of origin, and is involuntary. It is the creation of law – not of the party. ..
…It may be extinguished by act of law, as, for example, by sentence of death or exile for life, which put an end to the statis civilis of the criminal; but it cannot be destroyed by the act or will of the party.” (Lord Westbury in Udny v Udny[6])
The working assumption is that every person starts with a domicile of origin .This is usually the country in which he was born. In rare circumstances he may start with a domicile of dependency. If both parents are French citizens domiciled in France, and a child is born unexpectedly early whilst the parents are on holiday in London, it would be nonsense for the child to have English domicile. It clearly has a domicile of dependency in France and so the child has French domicile of origin. The child’s nationality may be affected by its place of birth, particularly in countries which operate jus soli. In the case quoted above, Udny v. Udny[7], Colonel Udny had a Scottish domicile of origin despite being born in Leghorn, Italy because his father’s domicile was Scotland.
Domicile and citizenship are not connected in that one can quite easily have domicile in a country of which one is not a national, and vice versa. One may have more than one nationality simultaneously, but only one domicile at a time. A person may be stateless, but a person is never without a domicile.
It seems that for children born in wedlock, father’s domicile prevails[8], but for children born out of wedlock or after the death of the father the mother’s domicile prevails[9]. Although legitimation by the marriage of the parents does not retrospectively change the domicile of origin, adoption does!
It used to be that when a woman married she was deemed to have a domicile of dependency upon her husband, but that has been abolished in most jurisdictions including England. It was only abolished in England in 1974 and a woman who married prior to that date and was therefore deemed to take her husband’s domicile still has that domicile unless she has actively changed it.[10]
One loses a domicile of origin by acquiring a domicile of choice and hence abandoning one’s domicile of origin. Most domicile cases turn on whether the person has changed domicile by acquiring a domicile of choice. In the vast majority of cases there is no issue as to the person’s domicile of origin. Where there is an argument it is almost always
whether he has acquired a domicile of choice hence abandoning his domicile of origin, or
whether that domicile of choice has been abandoned so that the domicile of origin revives, or
whether a further domicile of choice was acquired.
New Zealand and Australia and most American states have abolished the revival doctrine[11]. One retains the domicile of choice until such time as one acquires a new domicile. Given those countries were founded on immigration, the idea of “the huddled masses yearning to breathe free[12]” retaining their domiciles of origin is ridiculous and impractical.
“Acquired” is an interesting word used in respect of domicile. It does not mean “purchase”, but it is necessary to do some positive action or demonstrate some positive intent to attain a new domicile. A new domicile does not arise by mere effluxion of time, as exemplified by the case of Bullock[13] (see below) where 40 years residence in England was not conclusive. In Khanchan Bibi and Anwar Khatun (12488) [1995] a Bangladesh sponsor was held to have retained domicile of origin in Bangladesh despite being resident in the UK since 1946 and registration as a British Citizen in 1951.
“A domicile of choice is acquired when a man fixes voluntarily his sole or chief residence in a particular place with an intention of continuing to reside there for an unlimited time” Lord Scarman in Buswell v. IRC[14]
This was expressed by Lord McNaghten in Winans v. AG[15]
“whether the person whose domicile was in question had “determined” to make, and had in fact made, the alleged domicile of choice “his home with the intention of establishing himself and his family there and ending his days in that country”
“A natural-born Englishman may domicile himself in Holland; but if he breaks up his establishment there and quits Holland, declaring that he will never return, it is absurd to suppose that his Dutch domicil clings to him until he has set up his tabernacle in another country” (Lord Westbury in Udny v. Udny[16])
In Flynn[17] (the actor Errol Flynn) the question arose as to whether a domicile of choice had been abandoned.
Megarry J. after discussing the authorities concluded
“The standard of proof is, I think, the civil standard of a balance of probabilities, subject to the overriding consideration (which I borrow from his[18] judgement) that so serious a matter as the acquisition of a domicile of choice (or for that matter, I think, the abandonment of a domicile) is “not to be lightly inferred from slight indications or casual words”
“If the mere absence of any animus revertendi suffices, as I think it does, I hold that the change occurred when he left Warner Brothers and went to Italy, and this seems to have been in October 1952.”
“The totality of the evidence satisfies me that probably by August, 1958, and certainly by the time of his last arrival in May or June, 1959, Jamaica had become Errol’s home and that he was domiciled there. His Jamaican domicile thereupon ousted his domicile of origin. His work might continue to take him to many parts of the world for long periods; but Jamaica had become his centre of gravity…..What at first, while he was still domiciled in California, may merely have been an investment, a dearly loved holiday resort and possibly a place of future retirement, had, in addition, when he abandoned his California domicile, become his permanent home. Indeed it would have been strange if, loving the place as he did, Errol had not regarded it as his home when he had no other, and was making and putting into effect such expensive plans for erecting a house there to his exact specifications…”
[The plans included a refrigerated room for keeping his film archive – a necessity in the climate of Jamaica.]
There[19] is a very strong presumption in favour of the continuance of the domicile of origin. In contrast to domicile of origin
“its character is more enduring, its hold stronger and less easily shaken off.”[20]
The intention to settle permanently (i.e. to abandon an earlier domicile) must be ascertained by objective criteria. Statements about domicile in a will[21] or a statement of intent to live in the UK on an application for citizenship[22], or even statements on a domicile questionnaire[23] are not conclusive.
The evidential burden of proving that a change of domicile has taken place is upon he who alleges it.[24]. If the burden is not discharged the domicile of origin or the previous domicile will remain.[25]
The abandonment of a domicile of origin is easier than its acquisition, although there must be unequivocal evidence of abandonment.[26] It is not necessary to prove acquisition of a new domicile because the domicile of origin simply revives.
Domicile is sometimes confused with “ordinary residence” or “habitual residence”. Domicile is derived from the Latin “domus” or “home”. Many UK students live at least part of each year away from home, and have no difficulty between “living” or being “resident” in their University town but having a “home” elsewhere. If Lahore University offers me a one year visiting professorship I can enjoy Pakistan but my “home” is in England. I might take up permanent employment in Bahrain, but this does not mean my “home” is Bahrain. After 5 or 10 or 20 years there I might think of Bahrain as my home, and now I have Bahrain domicile. Alternatively I might always just be there for the job and have no intention of ending my days there. My domicile remains England.
Linguistic confusion is common for two reasons. The Europeans have a different view of domicile than does England, and their view of domicile is more closely allied to residence. This finds favour in some International Conventions such as Article 5 of the 1955 Hague Convention[27] where habitual residence is equated with domicile. (See Chapter 3). In the 1989 Hague Convention[28] the word domicile is not used in the French original although it is implied by the use of the phrase (in translation) “most closely connected”[29]. The second reason is the approach of Australia New Zealand and most American states described above (see Footnote 11).
Why is domicile important?
Domicile is an important starting point for questions of tax and for validity of marriage, validity of divorce or divorce “obtained by means of proceedings”[30], jurisdiction of the court to entertain divorce proceedings[31], and wills[32] and other issues of personal law such as legitimacy, applications under the Inheritance (Provision for Family and Dependents) Act 1975[33], the making of an adoption order under the Adoption Act 1976 s14, or a parental order under the Human Fertilisation and Embryology Act 1990 s30.
In the case of intestacy, logical arguments could be made for assets to pass
- According to the law governing the place of the person’s death
- According to the law where each asset lies at the date of death
- According to the law of the person’s nationality (but what if he has more than one nationality?)
By long custom and recent International treaty[34] a decision is made on domicile, and the assets pass upon the law of that domicile. This has been eroded by the national laws of some countries,
In some circumstances, countries other than the country in which I am domiciled at the time of my death may claim tax or other rights over my estate. For example s1(2) of the Muslim Family Laws Ordinance 1963 of Pakistan says that the estate in Pakistan of all Muslim Pakistan citizens shall be administered in accordance with Islamic Law regardless of domicile. See Yusuf Abbas v. Ismat Mustafa 1968 PLD Karachi 480 at 502, quoted in Pearl.
The United States government claims to tax the world wide income and estates of all citizens and residents of the United States, regardless of domicile[35]. There is currently political controversy in the United States about tax rebates being paid to illegal immigrants.
In an Australian case Haque v. Haque[36] the deceased had children by a second Islamic marriage in Australia. Australia did not recognise the second Islamic marriage, and under Australian law the children of that purported marriage had no right to inherit. An Australian court decided it had to apply Indian law to the estate of the deceased because his domicile was India. Under the law of India the marriage was recognised and the children could inherit.
A Canadian man called Bullock came to England in 1932, to join the RAF. He was still living here in 1976. The domicile[37] question was important, because virtually all his assets were in Canada and the Inland Revenue wanted to tax his Canadian income, saying that after 40 years of residence here he had acquired English domicile.
An American man called Robert Moore died in England in 1997. At the time of his death he was technically an illegal immigrant. If he had British domicile his entire estate was subject to UK tax. If not his estate only had to pay UK tax on his UK assets[38].
Two recent cases are Morgan v. Cilento[39] and Agulian v. Cyganik[40]. In the first case the lover of the deceased at the time of his death wished to make a claim under the Inheritance (Provision for Family and Dependants) Act 1975. She needed to show that his domicile at the date of death was England as no similar legislative provision existed in Queensland Australia. She needed to show the deceased had never lost his English domicile of origin or alternatively had abandoned his Queensland domicile of choice and his English domicile of origin had revived. In the second case for similar reasons the fiancee needed to show that the deceased had abandoned his Cyprus domicile of origin and had acquired domicile of choice in England.
An enormously important case for thousands of illegal immigrants of all descriptions is Mark v. Mark[41] where an illegal immigrant was held to be domiciled in the UK for the purposes of instituting divorce proceedings. Had she failed, she would have had to go to Nigeria and divorce her husband in the Nigerian traditional courts. Her financial prospects in those courts were less attractive than through the UK courts. Given the very important position her husband held, she might have had great difficulty obtaining a judgement and enforcing it. If one had negative perceptions about barristers, lawyers, or third world Army generals this case would confirm them. This case is discussed more fully in Chapter 3 but is so important it appears throughout.
A challenging and educative case around domicile is “In re Martin, Loustalan v. Loustalan[42]”. A will was written in French by Miss Loustalan an unmarried French citizen living in London, executed in the French form rather than the English form and registered with a notary in France according to the French system. If at the time of executing the will she had English domicile the will was void because not properly executed. If her domicile was France, it was valid under French law and would be recognised by the English courts. The first complication in the case is that under French law she had English domicile because under French law as it then stood a servant had a domicile of dependency upon her employer, but under English law she almost certainly had French domicile.
Her only significant asset at the time of making the will was an entitlement to a share in the estate of her father who had died in France not long before. A question before the court was whether the will was valid when made, and under which system of law, which turned on her domicile at the time of making the will.
Eventually she left her job in domestic service and set up a successful laundry business. Later she married a Mr Guillard, who in England called himself Mr Martin. He used a false name because he was wanted in France to serve a sentence of 10 years imprisonment for dishonesty. The court decided that although his domicile of origin was France, the fact that he could not go back to France at the time of the marriage, that he married in England but did not register the marriage in France, coupled with the later purchase of property in the UK and that he did not go back to France as soon as it was safe to do so meant that by the date of his marriage he had abandoned his domicile of origin and had acquired a domicile of choice in England. Hence when Miss Loustalan married Mr Martin she acquired a domicile of dependency of England. Under English law a marriage cancels any will, but under French law it does not, so did the marriage cancel the will? Thinking about the timing is interesting because at the time the marriage started she probably had French domicile and when it finished she had English domicile. Under English law a will is cancelled on marriage but in French law it is not. So could a marriage conducted when she had French domicile but which gave her English domicile cancel the will?
The marriage was celebrated by a French Roman Catholic priest in a Roman Catholic Church in the presence of a Registrar. Another question was whether the marriage was celebrated under English matrimonial law or French matrimonial law (even though not contemporaneously registered)? The significance of that question is that French law dictates certain assumptions about matrimonial assets in the absence of a written contrary agreement. (See De Nichols v. Curlier[43] below). Before her death her husband had returned to France, and resumed French domicile. What therefore was her domicile at the time of her death? Given that the husband had returned to France and resumed French domicile, did this mean that his wife also had French domicile under the doctrine of dependency, even though they had in effect separated and she clearly had the intention of living in England and not in France? The court said “yes”.
The case is even more complicated, because her brother in England did not know about the will and obtained Letters of Administration on the basis that there was no will. The sister in France obtained recognition of the will by a French court ex parte. Which prevailed?
There were other potential complications to the case!
“Early in the case I decided that, in my judgement, the domicil of the husband at the time of the wife’s death (which is a material point, inasmuch as the domicil of the wife is the domicil of the husband) was French, because that was his domicil of origin, and I do not think anything took place to disturb that domicil.
Then comes a further question: supposing that had been the only question, and supposing I had held that the domicil of the husband was French altogether, I think no further question would arise, at any rate as to the main points raised; but supposing it were possible to say that the domicil of the husband, although French according to English law was English according to French law, then I think some very difficult questions would arise…..”
The President (Sir F.H. Jeune) in In re Martin, Loustalan v. Loustalan[44]
Sir F. H. Jeune was President of the court from which Loustalan was appealed to the Court of Appeal. In his view Martin never acquired English domicile, which would mean the wife’s will was not cancelled unless she already had English domicile at the time of marriage. There is much to commend Jeune’s judgement but it was overturned at the Court of Appeal.
Another really interesting case is De Nicols v. Curlier[45]. This was going through the House of Lords at the same time as In re Martin, Loustalan v. Loustalan was going through the Court of Appeal. Mr De Nicols founded the famous Café Royal in London and had become very wealthy. Under French law[46] as it stood at the date of marriage in France in 1854 and still stood at the date of judgement in 1899, when a couple married their property rights were determined by law[47] unless they agreed differently in writing at the time of marriage. Could this contractual or semi-contractual arrangement change simply because the parties changed their domicile? At that time under English law a wife was held to have a domicile of dependency on her husband, and could not have a different domicile. Mr De Nicols became British and made a will in English in London leaving his assets as he wished rather than according to French law. He (and she) had clearly acquired British domicile. As the English law stood at that time Mrs. De Nichols could not claim the immoveable property but claimed such share of the moveable property as she was entitled to under French law. The court held that the change of domicile did not affect the semi-contractual rights in moveable property from the French marriage.
In Collier v.Rivaz[48] the deceased had lived in Belgium a long time, and in the English sense had acquired Belgian domicile. However he had not acquired Belgian domicile under Belgian law, because he had not formally applied for it, a requirement under Belgian law. His will and two codicils to his will were executed in the Belgian format and were accepted to probate in England. Four codicils executed in Belgium but in the English manner should have been refused as not having been executed according to the local law. On hearing evidence that had the deceased been domiciled in Belgium the Belgian courts would have accepted them, the British court decided to accept them. This principle of doing what the court of domicile would do is called renvoi .
Haque v. Haque above is an example of renvoi.
Double renvoi is what happens when you decide to apply the law of the other country, only to find that the other country would decide to follow your law.
How the English courts decide questions of domicile
In the vast majority of cases domicile is simply not relevant. Where domicile is relevant it is frequently not in dispute. The decided cases therefore arise from where the answer was not clear.
The courts do not ask or declare the date upon which domicile changed, because this is extremely difficult to determine, and more exact than is necessary. The important question, and hence the usual question is
“What was this person’s domicile on the relevant date” (death, second marriage etc).
An obvious thing to do is to ask the person if living what his domicile was on the relevant date. Asking a live person is often not helpful because the individual or someone close to him will have a financial or other interest in the case. Even someone
who is honest may remember “with advantages”[49]. There is also the strong likelihood that the person may not at the time have had any clear thoughts about domicile, or may not have been aware of the distinctions between domicile and say “ordinary residence” or “habitual residence”. Now that he is aware his recollection may be tailored by that knowledge[50].
Where the person is deceased this avenue is not open. Even if he made a domicile declaration in his will this will probably be for tax avoidance purposes and hence is of dubious value. Also his mind might change between making the will and his eventual death.
What he said to others may simply have been to “keep them sweet” or be misremembered or distorted[51].
Buckley, J. made a good statement of the law in the Court of Appeal in Inland Revenue Commissioners v. Bullock[52]
“As long ago as 1865 Turner said in Jopp v. Wood (1865) 4 De G.J. & Sm 616, 621 that nothing was better settled with reference to the law of domicile than that the domicile can be changed only animo et facto; that is to say by intention as well as action. The necessary act is that of taking up residence in some country other than the country of the domicile of origin. There was no dispute in the present case about the taxpayer having taken up residence in England. What his intention was in so doing is a matter of fact. What we have to determine is whether that intention was such as to clothe his residence in England with the necessary quality to result in his having adopted a domicile of choice in England…….
….The intention which must be sought is an intention on the part of the person concerned to make the new country his permanent home.
In Whicker v. Hume (1858) 7 H.L. Cas 124, 160 Lord Cranworth said
“By domicile we mean home, the permanent home; and if you do not understand your permanent home, I am afraid that no illustration drawn from foreign writers or foreign languages will very much help you to it.”
In Lord v. Colvin (1859) 4 Drew. 366, 376 Kindersley V.-C. said
“ I would venture to suggest that the definition of an acquired domicile might stand thus: that place is properly the domicile of a person in which he has voluntarily fixed the habitation of himself and his family, not for a mere special and temporary purpose, but with the present intention of making it his permanent home, unless and until something (which is unexpected or the happening of which is uncertain) shall occur to induce him to adopt some other permanent home.”
When that case reached the House of Lords under the name of Moorhouse v. Lord (1863) 10 H.L. Cas 272, Lord Chelmsford, at pp 285-286 criticised this passage in the Vice Chancellor’s judgement as follows:
“Now this definition,….”
he was referring to a definition propounded by counsel,
“….and that of the Vice-Chancellor appear to me to be liable to exception, in omitting one important element, namely, a fixed intention of abandoning one domicile and permanently adopting another. The present intention of making a place a permanent home can exist only where he has no other idea than to continue there, without looking forward to any event, certain or uncertain, which might induce him to change his residence. If he has in his contemplation some event upon the happening of which his residence will cease, it is not correct to call this even a temporary intention of making a permanent home. It is rather a present intention of making a temporary home, though for a period indefinite and contingent. And even if such residence should continue for years, the same intention to terminate it being continually present to the mind, there is no moment of time at which it can be predicated that there has been the deliberate choice of a permanent home.”
At p 286 Lord Chelmsford referred to what had been said by Lord Wensleydale in Aikman v. Aikman (1861) 4 L.T. 374 as laying down the rule upon this subject very clearly:
“Every man’s domicile of origin must be presumed to continue until he has acquired another sole domicile by actual residence, with the intention of abandoning his domicile of origin. This change must be animo et facto and the burden of proof unquestionably lies on the party who asserts that change.”
….In truth the insistence of Lord Chelmsford upon the importance of finding a fixed intention of abandoning one domicile and permanently adopting another is but a method of emphasising the importance of finding that the person in question intends to make his new country his permanent home. The abandonment of the previous home is implicit in the adoption of the new home”
A person who is a prisoner, in a mental hospital, or in the armed forces has no choice about where he is. His residence during this time is not indicative of anything to do with domicile because quite literally he has no power to choose. This is probably also true for a child, because the child[53] has no legal entitlement to choose where he lives.
So how do the courts establish what was in a man’s mind at the relevant date? Asking him what was his state of mind at the relevant date, when his answer carries important financial or other consequences to him, is risking an incorrect answer. The court will obviously weigh his answer within the evidence. Given that domicile is not a concept that naturally springs to a person’s mind the court looks for other forms of evidence that taken together help to establish the man’s state of mind at the relevant date.
This is covered more fully in Chapter 3 but examples of evidence that have been considered are:
Evidence given to the court by the person in question[54]
Any purchases of land[55] or failure to purchase freehold land[56]
The character of properties bought (investment or residential)[57]
Any sales of land[58] or refusal to sell land[59]
Expressions of interest in respect of property[60]
What properties were well maintained and not maintained or minimally maintained[61]
Where his collection(s) personal possessions, and art were kept[62]
What wills he made, where they were made, and what was in them[63]
Where he had his children educated[64]
Continuing to have children by a wife in his home country[65]
Contemporaneous letters to friends, relations, and professional advisors in which he states his thinking[66]
Other writings[67]
Contemporaneous statements made to friends, colleagues, professionals[68]
Contemporaneous statements made to officialdom, friends and family[69]
Where did he call “home”[70]
Dire predictions as to the future in the current country[71]
The activity of bank accounts[72]
Voting or refusal to vote[73]
Exercising or not exercising postal vote from abroad[74]
Refusal to stand for public office[75] or holding public office[76]
Domicile questionnaires[77]
Where the person’s principal bank lawyer accountant or financial agent is[78]
Where his assets are[79], particularly when they have been moved
Length of stay in a country[80]
Patterns of travel[81]
Storing goods in a country[82]
Maintaining a residential property as a base[83]
What newspapers he reads[84]
Whether he behaved like an Englishman or an American or Canadian when “abroad”[85]
Whether he dressed like a native or like his original nationality[86]
What food he ate from choice[87]
Whether he was lawfully in a country[88]
Purchase of a grave for future use[89]
Which churches or charities he financially assisted[90]
Declaration made on application for citizenship[91]
Refusal to apply for citizenship[92]
Application for citizenship or residence[93]
Whether entry or remaining in the country is legal or illegal[94]
Where he was financially active[95]
A failure to return home as soon as it was safe to do so, but going back two years later, citing ill health.[96]
All of these things taken together may help the court to decide a man’s mind at a date when he was not himself thinking about domicile. See however comments made in Chapter 2 about dishonesty and documents and numerous expressions of concern by judges about confused and dishonest witnesses and enigmatic or lying deceased persons.
“In one sense there is no end to the evidence that may be adduced; for the whole of a man’s life and all that he has said and done, however trivial, may be prayed in aid in determining what his intention was at any given moment of time. The state of a man’s mind may be as much a fact as the state of his digestion, but, as Harman L.J. is reputed to have observed “the doctors know precious little about the one and the judges know nothing about the other”” (Megarry J. in Flynn[97])
Chapter 2
discusses what a refugee is and the special problems refugees asylum seekers and illegal immigrants present around domicile.
The definition of a refugee is normally taken to be that of the Refugee Convention[98]
“owing to well founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside his country of nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the territory of his former habitual residence….is unable or, owing to such fear, is unwilling to return to it.”
This is “the Refugee definition”.
In 2003 11% of applicants for political asylum (10,990 applicants) were recognised as refugees, and 22% (22,470 applicants) were granted exceptional leave to remain. In 2007 the percentages were 20% (3,592) applicants) and 9% (1616 applicants). Those refused asylum had rights of appeal so the final figures will be higher. The family members of the applicants are not counted. It is important to understand that those not formally recognised as refugees but allowed to stay will frequently have much the same thought processes as recognised refugees.
At one time recognised refugees were given settlement once recognised. Recognised refugees are now given time limited Refugee Leave. Provided there has been no significant change in their country, and they have not reavailed themselves of the protection of their country, they can progress to settlement. Time limited Humanitarian Protection is given to some people refused political asylum who are “temporarily” allowed to remain for various reasons usually related to the 1950 European Convention on Human Rights and Fundamental Freedoms. Most people awarded Humanitarian Protection will graduate to settlement in due course. There is also Discretionary Leave, which is time limited and is designed for those whom the Government intends will be removed at a later date. Whether that actually will happen or not is not clear until it has actually happened.
On top of these retrospectively (see below) lawful entrants, according to Migration Watch[99] there are between 670,000 and 870,000 illegal immigrants in the United Kingdom. This includes people who have simply come as unlawful economic migrants, overstayers, asylum seekers and failed asylum seekers.
In many cases no decision has been made, or the judicial processes of appeal are not yet exhausted. There are also large numbers of people who have exhausted the judicial process but are still here, and others here illegally who never claimed political asylum and have never come to the attention of the authorities. Some of these are unrecognised refugees, and some are perfectly safe in their home country but prefer to live and work here. There are also some people who transit the United Kingdom on their way to somewhere else who are caught using false or inadequate documentation. The documentation is removed from them but they are often not detained. There are also foreign criminals here fleeing justice, and people lawfully here who commit crimes and are at risk of or are ordered for deportation or removal. There are people who have angry fathers of young ladies wanting to kill them[100]. This great amorphous group I together call “illegal immigrants”. It reflects that their current immigration status is unlawful. When they have been here unlawfully for 14 years they can apply for settlement, but it may not be granted.
All of the people mentioned above entered the United Kingdom illegally and / or now remain in the United Kingdom unlawfully. The vast majority of asylum seekers entered illegally. If they are recognised as refugees their apparently illegal entry is retrospectively made lawful and their time spent here illegally is retrospectively made lawful. Their entry to claim asylum is not lawful unless and until their application is successful, so they are illegal entrants. Apart from very small numbers of people resettled here through the UNHCR (United Nations High Commissioner for Refugees) or the occasional exception such as was exercised for the Kosovans, there is no legal mechanism for obtaining a visa to enter the United Kingdom to apply for political asylum.
There are also economic migrants who come lawfully to work in the UK and with immigrants who come usually for family reasons. Recognised “refugees” under the Refugee definition are a matter of International Treaty. The illegal immigrants (except those who are eventually recognised as refugees), economic migration, and immigration generally are matters of national policy for government.
So what has this to do with domicile? The leading book is Dicey Morris and Collins “The Conflict of Laws” who say (14th Edition):
“Refugees and fugitives A person who leaves a country as a political refugee, as a fugitive from criminal justice, or in order to evade his creditors, has a special reason for leaving it, but he has no special motive for entering any other particular country, nor is his residence in any other country in any sense enforced. The question which causes more difficulty in cases of this kind is whether the fugitive intends to abandon his domicile in the first country: if he does, the acquisition of a new domicile in the second country will be readily assumed. The question is one of fact in each case. If a political refugee intends to return to the country from which he fled as soon as the political situation changes, he retains his domicile there unless the desired political change is so improbable that his intention is discounted and treated merely as an exile’s longing for his native land; but if his intention is not to return to that country even when the political situation has changed, he can acquire a domicile of choice in the country to which he has fled. In the case of a fugitive from criminal justice, the intention to abandon his domicile in the country from which he has fled will readily be assumed, unless perhaps the punishment which he seeks to escape is trivial, or by the laws of that country a relatively short period of prescription bars liability to punishment. Similarly, a person who leaves a country to evade his creditors may lose his domicile there; but if he intends to return as soon as he has paid or otherwise got rid of his debts, there is no change of domicile.”[101][102]
There is a tiny number of “refugees sur place” who happen to be in the United Kingdom at the time when there is a revolution or change of Government in their home country such that they cannot go back. An example of this is the Iranian playboys and remittance men who were stranded here when the Shah fell. Having mentioned them, I shall henceforth ignore them as statistically irrelevant.
Almost all refugees enter the United Kingdom illegally. If they are recognised their entry becomes retrospectively legal. This does not create a defence for “facilitating illegal entry[103] However, in terms of domicile the manner of their entry is realistically irrelevant. Whether they are granted legal stay or not will be one piece of evidence bearing on their domicile. Far more important is the reason they left their country of origin.
Some have left with the intention never to return. People who are persecuted for their race, ethnicity, religion or sexual orientation may particularly know when they leave that they are abandoning their homeland. Those who leave because of political reasons may hope to return when the revolution happens, or even “after we win the election”. Some believe fervently that a return in triumph is just around the corner. For others, the entrenched nature of their government or society makes it unrealistic to have hope of return. Sometimes their experiences have been so awful that they would never return to that country whatever happens. The court has to decide post facto whether the propsitus’s expectations of return or non return at the relevant date were realistic. This is more difficult because the fact that the world subsequently changed rapidly or did not change as hoped is arguably not relevant, and it is important to look at the situation faced by the person at the relevant date. It is unfair to assign predictive powers retrospectively. Who would have thought in 1915 that Lenin would be leader of Russia within two years? On the same theme,
“Who would have imagined a year ago that the Communist Party would be legal in South Africa –and illegal in Russia!”[104]
Given that the United Kingdom is a relatively wealthy country, a person from a poor country who is frugal and fortunate and works hard can often find himself in a favourable economic and social position he never dreamed of. Over time, the lure of “home” recedes as he builds a new home, family, and social life around himself. The process is imperceptible but may be marked by milestones.
These milestones could be
- That he has not been to an exiles meeting for over a year, over 5 years, over 10 years.
- That he no longer reads news about his home country first when he opens a newspaper.
- That he does not rush to meet his party leader when the party leader comes to Yorkshire.
- That he no longer knows who is the national assembly member for his home town
- That he has stopped giving money to his previous political party
- That entire days and then entire weeks go by when he does not talk about the political situation in his home country
- That he has stopped his subscription to a burial club
- That he does not write or telephone his home country when it would be perfectly safe to do so, except to talk to family members about family affairs.
- That he does not exercise rights to a postal vote in his home country’s elections
Note that these milestones are all essentially negative. They begin to signify an abandonment of his previous domicile, an essential element in acquiring a new domicile. To acquire a new domicile there must be active and positive indicators of a new domicile, but where that evidence is not conclusive these negative indicators may help to sway the court. The courts generally require positive actions but can be influenced by the failure to do something. A striking example of this is Winans v AG [1904] AC 287 where the failure of Mr Winans to purchase a property in England consistent with his wealth was held to be an indication of lack of intent to live permanently in England.
Economic migrants have frequently “burnt their boats” in emigrating, perhaps by selling family land. They simply will not return to the low wages and low living standards of their home country.
Another problem is that in their early days many immigrants purchase land or build impressive homes “back home”. Mirpur has many “marble palaces” built on money from England in the days when their owners intended returning to Mirpur like reverse nabobs. Many of these are now mausoleums to past intention as the original owner has realised he does not want to return permanently to Pakistan but has his centre of gravity in Bradford or Birmingham. The original builder or his adult children may maintain these white elephants out of sentiment, or as a holiday home, or as a form of charity to indigent relatives and retainers –and bluntly because they are close to unsaleable because of family politics and family reputation. The fact that these properties are maintained is not evidence of domicile but that the decision maker cannot sell the property without negative consequences to his reputation and the reputation of his family.
It is also possible that the children of a refugee may have little or no attachment to their father’s country and would not move back there even if they could.
There are problems that are common to many migrants, but arise particularly sharply for some refugees.
Travel
They dare not travel to their home country. The fact that their travel patterns show a failure to visit their home country is therefore not indicative of a lack of interest in their home country or of abandonment of a domicile. Additionally, or alternatively, they may have no passport.
Their country of origin may have disappeared! This can happen by the break up of a mighty country like the Union of Soviet Socialist Republics (“USSR”). Vast numbers of people were forcibly moved around the USSR, and considerable numbers were posted or voluntarily moved to areas where skilled workers were needed. Ethnic Russians were moved to every area of the USSR, now forming minorities everywhere.
There were of course marriages across ethnic religious and cultural differences, creating situations where couples cannot live together anywhere and the children of such marriages are pariahs. People born in various countries may regard themselves as there temporarily, but to be say “Russians”. Often Russia won’t let them in.
People from Eastern Poland or Ruthenia found that their territory had become part of the USSR in 1945. Emotionally Poles or Czechoslovakians, they could not have domicile in their home town or village but in the remnant Poland or Czechoslovakia where perhaps they had never lived.
Boundary adjustments happen all over the world. In Bradford there are considerable numbers of people who may have British or Pakistan or Indian passports but who are Kashmiri. Their domicile may well not be Kashmir –but perhaps it is. Do they intend to live there? Why are they here? Given that Azad Kashmir has a separate legal system there is an Azad Kashmir domicile distinct from the Pakistan domicile.
With global warming there are countries like Vanuatu which will shortly cease to exist. What is the domicile of origin of a Vanatuaan then?
Someone from Northern Cyprus might have domicile of a country that is not legally recognised. What finding should the court make about domicile? A person from a territory in revolt or in a failed state where perhaps there is no law might have an interesting domicile question.
With boundary adjustments, people may find that the territory in which they live has moved from one country to another. A resident of Istria may have been born in 1917 as part of the Austro-Hungarian Empire, then Italy, then Yugoslavia, then Independent Trieste, again Yugoslavia, and now Croatia. Does his domicile of origin retrospectively fluctuate with the winds of history, or does it remain fixed no matter what happens to the town where he lives?
The law seems to be that although if my permanent home is in Bradford I have domicile in and throughout England and Wales, should Yorkshire become independent or be annexed by Scotland my domicile of origin fluctuates to Yorkshire or Scotland. My actions are always judged by my domicile at the date of my actions. On the other hand, Poles Ruthenians and Palestinians might disagree.
Many current Palestinians were born outside Palestine. It is an accident of history whether their parents fled (or were expelled) to Lebanon, Syria, Egypt or Jordan. They may have been internally displaced to Gaza or the West Bank without leaving Palestine. Given that their “host” country never wanted them or their parents, and they have grown up in UN Refugee camps, what is their domicile? There seems to be common accord that where they happened to be born is not relevant, they are Palestinians. We would say they had a domicile of dependency on their parents or grandparents, who had a domicile of origin of Palestine. They have not formed a domicile of choice. Given that there was a long period where Palestine was a concept without a territory, should Palestine have ceased to exist as a domicile? Would Palestine domicile continue to exist while there was a single person who still believed in it? Is a person of Palestinian heritage living in Israeli occupied Palestine of Palestine domicile or Israel domicile? If a Palestine state is formed, what is the domicile of those Palestinians who originate in land which does not become part of the new State of Palestine?
This leads to an interesting problem in relation to Jews. The traditional Passover toast “Next year in Jerusalem” referring to the Jewish Diaspora and its hope of reunification in a better place (an idealised Jerusalem) is in one sense a declaration of a wish to live in a Jewish state around Jerusalem. When there was not a Jewish state this could not be taken as a statement of domicile. The State of Israel welcomes all Jews and each Jew recognises there is a State of Israel and has views about it in contrast to the way that he normally has no views about Moldavia or Mauretania.
The vast majority of the world’s Jewry has made a domicile decision in that they have no intention of living in Israel.
A group of interest are the Russian Jews who are Jewish by operation of Soviet and Russian law, who inherited Jewish national status through their fathers. They were entitled to go to Israel if they could leave Russia (and Ukraine etc.). When they got to Israel as “Jews” they were expected to behave as Jews including circumcision and religious practice. Jewish religion is inherited through the mother, and so many of these individuals found they had gone from being discriminated against and arguably persecuted as Jews in Russia or Ukraine to being discriminated against and arguably persecuted as non-Jews in Israel. Their domicile is problematic. They may well have lost their domicile of origin on the first day of arriving in Israel, and abandoned that domicile of choice within the week.
In Taiwan there is a population of ethnic British who have lived there for so many generations that they have no claim to British citizenship. As they are not ethnic Chinese they are often not recognised as Taiwan citizens. Their domicile is Taiwan.
Nomads
There are nomadic groups who if asked would say “I live in the desert” or “I live on the Savannah” or “I live in the Arctic”. The lines that cartographers drew on maps were of no importance to the nomads. In most cases the Governments of the countries through which they roam simply ignore their legal status. Whether a nomad is domiciled in Saskatchewan or Manitoba or the Northern Territories is usually irrelevant because he has no money to tax. He is a Canadian. Where the boundaries are national boundaries, such as Saudi Arabia Kuwait or Iraq the governments usually ignore them. The nomads have no money, and their knowledge of the area is such that they could easily evade frontier guards or patrols. What is their domicile? In legal theory each of them has a domicile. At the time of their birth they had a domicile of dependency on their father. So what was father’s domicile? Well, he was born in the desert….
Even if we can find consecutive generations born in the same country, that does not mean that granddad as a nomad consciously adopted a new domicile of choice and unless he did we are all saddled with granddad’s domicile of origin if we only knew what it was.
Refugee camps
A person may have fled their country for some reason, ending up in a refugee camp in say Sudan. Have they a domicile of choice in Sudan? The first important question is whether they have abandoned their domicile of origin. If they have, then have they adopted this new domicile of choice? If they have not their domicile of origin was never lost. There are various collections of people who have recognised by the United Nations as refugees and live in camps for many years waiting for some country to take them in. Where people have fled their country and ended up in a camp, do they at some point acquire a domicile of the state in which the camp is situate? The case of Bell v. Kennedy[105] (below) gives some guidance.
Refugee boats
A boat may contain people fleeing oppression, be it Afghanistan or Russia or a mixture of countries. The people on the boat have made a conscious decision to abandon their homelands. Alas, no country will take them in. Under the doctrine in Jopp v. Wood[106] quoted above
“The necessary act is that of taking up residence in some country other than the country of the domicile of origin.”
Given that they have not taken up residence in some country, have they after some period of months or years taken up residence on the boat and acquired a domicile of choice according the flag under which their boat sails? What about the harbour in which the ship is moored? The Vietnamese boat refugees fervently wished to leave Vietnam and may fervently have wished to live in Hong Kong, but their domicile probably remained Vietnam.
Difficulties of legal status
All asylum seekers are by definition currently here unlawfully. At the lowest end of the spectrum is the pure asylum seeker who has made an application for political asylum and has as yet no answer. In late 2007 there were people claiming to have been waiting for a decision for 12 years. At the other end of the scale there were gentlemen like Mr Salomon and Mr Cruh. In Salomon v. Salomon[107] Mr Salomon was a South Seas Islander unlawfully in New South Wales. While on his way to be deported he had committed rape, for which he was in prison. His Australian wife wanted to divorce him, but because of her implied domicile of dependency on her husband could only divorce in New South Wales if her husband was domiciled in New South Wales.
“It is a curious proposition that a Court of Justice in New South Wales should hold that a man has acquired a domicile in New South Wales when the laws of the land forbid that man to be here.” (Gordon J in Salomon v. Salomon)
This harks back to the Roman Marcellus in The Digest 50, 1, 31
“Nihil est impedimento, quo minus quis ubi velit habeat domicilium, quod ei interdictum non sit” [There is no restriction on the place where a person may have his domicilium, so long as it is not prohibited for him]
The result of the case was that as Mr Solomon never had domicile in New South Wales his wife was lumbered with his South Sea Islands domicile and could not have a divorce in New South Wales. This was followed by ex parte Donnelly[108] where it was held that having been deported and being liable to further imprisonment were he to return to South Africa, Mr Donnelly had lost his domicile of choice in South Africa. The case also confirmed that had Mr Donnelly been an illegal entrant he could not have acquired a domicile of choice in South Africa.
Cruh v Cruh[109] involved an Austrian man who served in HM Forces, was gaoled for conspiracy to commit fraud, and who was to be deported to Austria as soon as possible. This was in the early part of 1945, and there was a technical difficulty in deporting him because the German Army still occupied Austria and would not readily accept Mr Cruh. The Government was expecting victory against Germany fairly soon and would then deport Mr Cruh. The court decided that it was in the interest of Mrs Cruh, an Englishwoman, that the divorce should take place. The court found that Mr. Cruh had adopted English domicile upon coming here, and that he had not changed his domicile as his military service and imprisonment made it impossible to change his domicile. Solomon could be distinguished because Solomon had not ever changed his domicile.
One could consider the second part of the Udny quotation above which referred to domicile of origin
“…It may be extinguished by act of law, as, for example, by sentence of death or exile for life, which put an end to the statis civilis of the criminal; but it cannot be destroyed by the act or will of the party.” (Lord Westbury in Udny v Udny[110])
If a domicile of origin can be extinguished by exile for life, then logically a domicile of choice can be ended by a decision to deport. However the court were minded to help Mrs. Cruh, and the domicile of choice would of course end when the deportation actually happened.
It is arguable that the quotation in Udny is wrong – that domicile of origin is so strong that a mere death sentence or sentence of exile for life is not conclusive of abandonment. This is particularly so for refugees, because a death sentence or sentence of exile for life indicates the views of the current government, but is not at all conclusive as to the refugee’s long term intentions. Many exiled monarchs and political leaders believe they will make a triumphant return, overturning banishment, death sentences etc. Napoleon Bonaparte was exiled to Elba and made a triumphant return to France. In Lord Westbury’s lifetime was the example of the Tolpuddle Martyrs who made a triumphant return in 1836. Lenin has already been mentioned. Trotsky was in exile but was of sufficient threat to Stalin as to require being killed. Sun Yat Sen went from exile to become President of China. In modern times is the Spanish poet Marcos Ana who was sentenced to death twice under Franco and was released after 23 years imprisonment, but never left Spain.
Illegal Status
It often happens that a person is here illegally. Does that mean they cannot have English domicile? The quotation from Salomon above suggests one answer. However there are cases that suggest that a person’s immigration status is only one factor to be taken into account. The cases of Robert Moore and Mark v. Mark, both discussed in Chapter 3 are modern examples.
Use of a false identity
The refugee may (1) have used a fictional name, or (2) may have stolen an identity. Where he has used a fictional name there may be a doubt whether any findings in his favour in respect of refugee status, or a grant of settlement or of citizenship can stand. What if he has used the identity of a real person? Tohura Bibi[111]was the widow of a Mr Jabbar who entered England illegally on a stolen voucher (what would today be called a work permit). In the fullness of time he obtained settlement and British Citizenship in the false identity. The question before the court was whether a grant of Citizenship in a false identity was void ab initio or whether it was merely voidable by the Secretary of State[112][113].
Naheed Ejaz[114] obtained British Citizenship as the wife of a British citizen. Naheed was not dishonest but her husband had obtained citizenship in a false identity. Did his citizenship void ab initio mean that her citizenship was also void?[115]
Other dishonesty
Once people are using illegality in a new country, it becomes necessary for all the paperwork for the family to mirror the new lie. If the lies are not detected there is no immediate problem, but if they are detected what are the consequences? One simple example is the “Sylheti Tax Pattern” where in the 1950s and 1960s immigrants invented wives and children to reduce income tax to tolerable levels. There was a space for a wife and 4 children on the Income Tax form, and the “pattern” was “Wife + 4 children”. When a decade later the immigrants wanted to bring their real spouses and children women of 18 had to pretend to be 30, marriage certificates and land deeds had to be backdated, and the invented children had to apply for entry clearance or die suddenly. In Pakistan and Bangladesh even honest people lied because of a belief that the Entry Clearance Officers were so clever that they would run rings around simple village women. Applicants were encouraged to trim their family trees.
Even today, a frequent complaint of asylum seekers in that Home Office or solicitors’ interpreters told them to shorten their stories or even sometimes not to tell particular stories because they will not be believed. Dishonesty then is not always symptomatic of guilt.
Confusion can also be caused by “call names” or nicknames or shortened or misspelt or anglicised versions of names. People of Asian origin born in this country or who came to this country may have several name variants running concurrently. Among the settled English community there are people who have names assigned to them by family or schoolmates who bear those names for the rest of their lives. An amusing example is that Elton John had to accept his knighthood in his true identity as Sir Reginald Dwight.
Official documents from the home country may be forged, irregular, or contain errors. Official documents from this country are only as good as the documents upon which they are based. The doctor’s receptionist who assumes that Mr Shah’s wife and children all have or should have the surname Shah is an innocent example.
In many countries births were not registered, and so 1st January has become enormously common as a date of birth. In some countries it is seen as a sign of loyalty to declare your birthday to be the same as the President so you can celebrate together.
Documentation problems
My generation grew up with people of our own age risking their lives and sometimes being killed fleeing East Germany Poland and Czechoslovakia. When I was a schoolboy and student people like me crawled through barbed wire and ran through minefields while being shot at with machine guns. When they got to safety the officials did not say
“You do not have an identity card or passport – you will have to go back for it.”
The Refugee Convention (Article 27) says
“Identity papers
The Contracting States shall issue identity papers to any refugee in their territory who does not possess a valid travel document.”
By contrast the British Government has passed legislation saying that the absence of adequate identification is to be taken as evidence of the claim being false[116].
In countries where there is no culture of registering births or deaths, registration is often delayed. It is not unusual that births are only registered when necessary for official purposes such as obtaining passports. A refugee may therefore provide a clutch of birth certificates for his 4 teenage children where all the births were registered only this year. How valuable are these as documents? How valuable are the passports based upon the birth certificates for the purpose of establishing age? By contrast family record books as used in Japan[117] nendra books as used in Pakistan to record the gifts given at family weddings or contemporaneous school and Army[118] records may be hugely useful.
Appalling facts
The legal problems were sharply considered in Szechter (Orse, Karsov) v. Szechter[119] by Sir Jocelyn Simon of the Divisional Court
“It would be affectation to pretend that any judge could listen to the evidence given in this case unmoved by the courage and generosity of the persons principally concerned or by the horror of the circumstances (though I appreciate that I have heard only one side and that few, if any, peoples can claim to have been entirely and at all times innocent of inhumanity or tyranny). But part of the comparative felicity which we have enjoyed in this country has been because we have lived under the rule of law. And not only does law. As Burke said, stand in dreadful enmity to arbitrary power, the rule of law, as Dicey pointed out, stands in contradistinction to (among other things) wide discretionary authority.
There is obviously a temptation for a court, faced with a situation of hardship brought about by heroism in the teeth of cruelty and oppression, to try if necessary to stretch the law a little here or a little there……… But it is not open to a court of law to deal out what is sometimes called “palm tree justice”.
The story which has been unfolded in this court is so extraordinary as to be liable to strain credence, were it not that Nina and the respondent, who were its main narrators, were in their different ways as impressive witnesses as I have ever had before me.”
The domicile aspect of the case was that the couple were in the UK on time limited leave. Further stay was dependant upon the Home Office allowing them to stay. The case was decided in their favour as they had the clear intention to remain in the United Kingdom and there was no sign that the British Government would not let them.
Torturers People who have committed torture may seek asylum, and in some cases may be granted political asylum. There may then be requests for extradition or even civil actions for damages or attempts to enforce such judgements. What is the domicile of a person whilst extradition proceedings are running?
Perpetuities and anomalies
If in English law we recognise a will prepared in the person’s “home” country, but the will contains elements we do not recognise such as creating perpetuities or passing on of perpetuities, how do we deal with the problem?
If domiciled in a country where you are an “enemy of the state” or your property has been sequestrated, and the law of that country requires you to register a will or a marriage or a divorce in person, it is possible that the current country of residence will not allow you to have a lawful ceremony in its country because you are not domiciled there, but if you do the action where you are resident you cannot register it in your home country. Is your action invalid for want of registration? How can you validly do what you want to do?
Similar problems arise if your country is at war and you are a refugee.
Chapter 3
Differences in approach to domicile by European countries, the important treaties, and the major English and Scottish reported cases in detail.
In a New York case[120] the court decided it had to recognise a marriage between uncle and niece that was valid where it was performed although such an incestuous marriage would not be lawful if performed in New York. This was despite the parties being domiciled in New York at the time of marriage! The reasoning was that it was open to the State of New York to legislate that it would not recognise marriages between persons domiciled in New York conducted outside New York which would not be permitted within New York. As New York had not so legislated, New York was bound by the general laws of recognising marriages conducted in other states, in the current case Rhode Island.
The above situation demonstrates that the interrelation between domicile and International Treaty is not always straightforward. It is also not helpful that the international meaning of the word “domicile” is not agreed. The European concept of domicile is more firmly tied to actual residence. In their view, our “domicile” is too loosely related to the actions and mental processes of the person. and not enough on actual residence[121]. Having said that, the case of Collier v. Rivaz[122] illustrates another peculiarity of the Continentals, a concentration on legalism. The deceased had not applied for Belgian domicile, so under Belgian law he did not have Belgian domicile. The differences between British and European concepts of domicile have made the drafting of treaties about domicile difficult.
It is obviously desirable that proposed Defendants who are domiciled in an EU country should be sued in the courts of the country where they are domiciled, which in most cases is also the country in which they live. This of course hits the fault line between the European view of domicile being closely related to where the person lives and the English view of the importance of the mental element of domicile.
The Brussels Convention of 1968[123] and Council Regulation 44/2001[124], 33 years later, deal with the problem with identical wording, save that the first uses “Contracting State” and the second uses “Member State”.
“Article 59[125]
- In order to determine whether a party is domiciled in the Member State whose courts are seised of the matter, the court shall apply its internal law.
- If a party is not domiciled in the Member State whose courts are seised of the matter, then, in order to determine whether the party is domiciled in another Member State, the court shall apply the law of that Member State”
It was too difficult to agree the meaning of the word “domicile” so each court applies its national law. The “bite” is in Article 59(2) because if a person can have only one domicile but must have a domicile the court is under huge pressure to declare a domicile for the person.
The Lugano Convention[126] of 1988 which was simply the EEC and EFTA countries says (Article 5)
“A person domiciled in a Contracting State may, in another Contracting State, be sued ……”
(generally speaking in the state where the grievance arose) but is silent on the meaning of “domicile” or how that domicile shall be defined. It does say (Article 28)
“…the jurisdiction of the court of the State of origin may not be reviewed”
so the decision on domicile of the Defendant is made in the Contracting State where the grievance arose and the proceedings are issued
The Lugano Convention was given effect by the Civil Jurisdiction and Judgments Act 1991 which inter alias amends the Civil Jurisdiction and Judgments Act 1982 to say
“3B Interpretation of the Lugano Convention
(1) In determining any question …a court in the United Kingdom shall…. take account of any principles laid down in any relevant decision delivered by a court of any Lugano Convention State concerning provisions of the Convention.”
Upon what evidence then will a court decide? In the decided cases there is usually a range of evidence offered, and it is instructive to see how courts have examined the evidence and chosen which evidence to prefer. The order of cases is strictly chronological, to show the development in thinking between 1868 and 2008.
Bell v. Kennedy[127] was heard in 1868. Mrs Bell the wife of Mr Bell and mother of Mrs Kennedy had died in childbirth in Scotland in 1838. Under the law of Jamaica Mrs Bell’s goods passed on intestacy to her husband, but under the law of Scotland Mrs Kennedy was entitled to a share of the estate. It was common ground that because of the domicile of dependency Mrs Bell’s domicile was that of her husband, but what was Mr Bell’s domicile at the date of Mrs Bell’s death? It had originally been Jamaica, but in1837 he sold his estates in Jamaica and left Jamaica, in his own words “for good”. He spent a few days in London and then went to live with his wife’s family in Scotland. He spent a lot of time in Scotland looking for properties to buy. He made enquiries about property in England and in letters to friends and relations discussed Canada, Jamaica and Australia. He complained about the high price of land in Scotland and the political uncertainty. He writes to one friend
“I have not purchased an estate, and am not likely to do so.”
A letter from Mrs Bell on 20 March 1838 says
“This country is so gloomy, it is sadly depressing to the spirits, so unlike what one has been used to in dear, lovely Jamaica. The vile pride and reserve of the people is here too great a source of annoyance. A man is not so much valued on the manners and education of a gentleman as on the rank of his great grandfather….Bell has several properties in view, but is as undetermined about where we may settle as when he left Jamaica.”
Mrs Bell died in confinement on 28 September 1838.
Lord Colonsay[128]
“The principle of domicile is one which occupies a very prominent place in our law. And in the law of all civilised countries…. Yet there is perhaps no chapter in law from such extensive discussion received less of satisfactory settlement. That is no doubt attributable, in no small degree, to the nature of the subject, involving as it does, inquiry into the animus of persons who have either died without leaving any clear record of their intentions, but allowed them to be collected by inference, from acts often equivocal; or who, being alive and interested, have a natural, though, it may be, an unconscious, tendency to give to their bygone feelings a tone and colour suggested by their present inclinations.
I am not disposed to take the evidence of Mr Bell as the corner stone of my judgement. I agree with the Respondents in thinking that what Mr Bell wrote at the time, and what he did at the time, are better materials and safer grounds for judgement than what he says now. And I should have been of that opinion even if his evidence had been less open to criticism, and less vulnerable than it is.”
“[129]I think the circumstance that Jamaica was the domicile of origin is not unimportant in this case, and especially on the question as to the extinction of that domicile.
Then I think it is very clear that Mr Bell left Jamaica with the intention of never returning, or, as it is expressed in some of the letters, he left it “for good”. I further think that his leading desire at that time, and for some time previously, was to acquire a land estate in Scotland, which would give him a desirable residence, and be at the same time a good investment for his money. This last was, I think, a desideratum….But I do not think that his having sailed from Jamaica with that intent extinguished his Jamaica domicile. I know of no authority for that proposition. There are dicta to the effect that if Scotland had been the domicile of origin, and he had bid a final adieu to Jamaica and sailed for Scotland, and had died in itinere, the domicile of origin would be held to have revived; but there is no authority for saying that a person dieing in transitu from the domicile of origin to a foreign land, had lost the domicile of origin. He could not so displace the effect which the law gives to the domicile of origin, and which continues to attach until a new domicile is acquired animo et facto. He cannot have acquired a domicile in a new country which he has never reached.
“I think that while he had a strong desire to invest in landing Scotland with a suitable mansion on it, the fulfilment of that desire was contingent on his finding an estate that would give him not only a suitable residence, but an adequate return for his money. Such an investment is not always, or easily, to be got, and it is by no means clear that if he had not been able within a short time to obtain such an investment he would have remained in Scotland.
…. I do not see sufficient ground for holding that he had resolved to make Scotland the country of his residence, except in the event of his being able to make such an investment as he desired. In the meantime his mind was unsettled as to where he should finally cast anchor.
Bell v. Kennedy[130] was heard in 1868, only 13 months before Udny v. Udny, before 4 of the same judges and with some of the same barristers. It is surprising, given that they were both cases about Scottish domicile, that there is no reference in Udny to Bell v. Kennedy.
All the modern (21st century) cases take as their starting point the 1869 case Udny v. Udny[131]. This is a case where a son John Udny was born illegitimate. His parents then married. If his father Colonel John Udny had Scottish domicile at the date of the child’s birth and the subsequent marriage the child became legitimate and was entitled to a share of a large inheritance. If his domicile was England or France a relative George Udny inherited.
Colonel Udny was born in Leghorn in 1779, the son of a British (Scottish) diplomat and had therefore a Scottish domicile by dependency upon his father. He spent the early part of his life in Scotland, and then served in the Army. He inherited the family estates in 1802, but much of the property was entailed. The practical effect of this was that much of the family property was held by trustees and could not be sold by him. This was a common method of protecting a family estate from a spendthrift heir.
Colonel Udny married well and left the Army in 1812. He immediately bought the lease of a house in London and lived there for 32 years until 1844. He paid occasional visits to Scotland.
“When in Scotland he usually resided with friends, but occasionally at hotels in the neighbourhood of his property, and he continually received detailed accounts of the estates, and took much interest in their management. His choice of England as a residence appears to have been considerably influenced by his taste for the sports of the turf” (The Lord Chancellor at 444)
In 1844 Colonel Udny sold the lease in London and all his London assets and fled to France to avoid creditors. It appears he had bet unwisely too often and had dissipated his disposable fortune and his wife’s money. During this time in France he occasionally visited Scotland.
His wife died in 1846. Staying in Boulogne he found consolation with an Ann Allat, with whom he had John Udny in May 1853. They thought it better for her to give birth in England rather than risk a French midwife. He only came to England for two days. His son John Augustus by his first wife was advised by a lawyer that it was now possible to break the entail! All that was required was for Colonel Udny to marry Ann in Scotland. That would legitimate John Udny. If 3 heirs, Colonel Udny, his legitimate son and John Udny once legitimated applied to the court together they could break the entail. This would release capital to clear Colonel Udny’s debts, help his elder son John Augustus financially, and allow the family to live much better. In January 1854 Colonel Udny and Ann married in Scotland. Colonel Udny then remained in Scotland until his death in 1861.
The proceedings were begun in Colonel Udny’s lifetime, and so although he died before the case arrived at the House of Lords he did give evidence in a lower court.
“Upon the question whether Colonel Udny ever acquired an English domicil which superseded his domicil of origin, there can be no doubt that his long residence on Grosvenor Street for the space of 32 years from 1812 to 1844, is calculated to produce a strong impression in favour of the acquisition of such a domicil. Time is always a material element in questions of domicil; and if there is nothing to counteract its effect, it may be conclusive upon the subject. But in a competition between a domicil of origin and an alleged subsequently-acquired domicil there may be circumstances to shew that however long a residence may have continued no intention of acquiring a domicil may have existed at any one moment during the whole of the continuance of such residence. The question in such a case is not, whether there is intention to retain the domicil of origin, but whether it is proved that there was an intention to acquire another domicil. As already shewn, the domicil of origin remains until a new one is acquired animo et facto. Therefore, a wish or a desire expressed from time to time to return to the place of the first domicil, or any looking to it as the ultimate home, although wholly insufficient for the retention of the domicil of origin, may yet amount to material evidence to rebut the presumption of an intention to acquire a new domicil arising from length of residence elsewhere. In this view it would be a fair answer to the question, Did Colonel Udny intend to make England his permanent home? to point to all his acts and declarations with respect to Scotland and his estates there, to the offices which he held, to the institutions to which he belonged, and to his subscriptions to local objects, shewing, that though his pursuits drew him to England and kept him there, and his circumstances prevented his making Udny Castle fit for his residence, he always entertained a hope, if not an expectation, that a change in his fortunes might eventually enable him to appear in his country of origin, and to assume his proper position there as a Scotch proprietor” (Lord Chelmsford at 455-456)
This is an interesting passage for a number of reasons. Although Colonel Udny was born in Leghorn in Italy, Scotland is described as his country of origin because his father had Scottish domicile. His visits to Scotland, his active involvement with his Scottish properties –fortunately entailed- acceptance of the post of magistrate in Scotland although he seems never to have acted as a magistrate, the drawing of plans to renovate Udny Castle all went to maintain such a connection with Scotland that one could not say he had abandoned his domicile of origin.
Udny has been followed and approved by all subsequent judges.
In Doucet v. Geoghegan[132] the validity of a will turned on domicile. Unless he had acquired English domicile at the time of making the will in England the will was void.
“In 1872 he made the will which is now in dispute; it is certainly a remarkable one for a Frenchman to make. He describes himself as of St John’s Wood and of Regent Street; he avails himself of the provisions of the English law; he appoints a testamentary guardian to his children; and he disposes of his property, notwithstanding the existence of children, in a way which every Frenchman knows is repugnant to French law. Against this evidence there is nothing except the testimony of some witnesses that he had made some declarations in casual conversations of an intention to return to France when he had made money enough, but this evidence is not uncontradicted by evidence on the other side of declarations that he intended to live in England. I cannot help thinking it would be dangerous to admit declarations in casual conversations, even if contradicted, to outweigh all the acts of a man’s life and every document executed by him. For it is important to note there are no document which expresses an intention to return to France, while on the other side there are two wills which are inconsistent with such an intention.”
Jessel, M.R. at 455
Brett L.J. said of the deceased’s alleged intention to return to France when he had made enough money
“But it was said that he limited the time by reference to the performance of as condition, namely, of his making a fortune. I think such a condition is not sufficient; it ought to be a condition which limits the residence to a definite time; and when the condition refers only to a time as indefinite as it could possibly be, it cannot be said to confine the residence to a definite time… There can be nothing so indefinite as the time at which a man expects to make his fortune. Therefore, as the testator did not fix a date or make any definite condition by which the residence was limited to definite time, it must be taken that his intention was to make his residence in England permanent.”
Martin (Loustalan) in 1900 was discussed in Chapter 1. A complication was that at the time of making the will she was “in service” which by French law (but not by English law) meant that her domicile was England because that was her master’s domicile.
However the judges held that the husband’s domicile at the date of marriage was England because he had criminal liability in France for 20 years. The theoretical prospect of resuming his Professorship age 69 after an absence of 20 years because of criminal charges relating to his conduct whilst a Professor was
“so irrational that, in default of the strongest evidence, it ought not to be imputed to him.” (Rigby LJ at 235)
He was also marrying a woman who had built a good business in England.
In the 1904 case of Winans[133] a wealthy American came to England aged 37 and died here aged 74. Liability to Legacy Duty for his large estate turned on domicile. Evidence was given that he called Baltimore “home”, that for 40 years he negotiated with other family members to gain control of coastal land in Baltimore and having at last got control was intending to develop it and had been working on the project night and day when he died. The fact that in all this time he never bought a property in England commensurate with his wealth but did purchase property in the USA for his project was another factor.
In 1947 we have Lloyd Evans[134] who was born in Wales but had lived outside England and Wales since his late teens. His domicile had been Belgium for 19 years, and he had bought a grave there where his wife was buried and where he intended to be buried. He had to flee Belgium because of the German invasion in 1939, and ended up in London. He talked about going to Australia after the War. So did he abandon his domicile of choice having physically left Belgium? It was held that as his departure was not voluntary, and he socialised with other refugees from Belgium, and he stated intention to live in Belgium again, and as he was already 77, that he would very likely not go to Australia. He had not abandoned his Belgian domicile.
In In re Fuld[135] in 1966 the issue was the level of proof required to establish the abandonment of a domicile of origin and the acquisition of a domicile of choice was such as would satisfy the conscience of the court. The acquisition of a domicile of choice was a serious matter not to be lightly inferred from slight indications or casual words. The actual finding was that Fuld had not lost his domicile of origin.
“In the light of these cases, the law…may be stated as follows:
- The domicile of origin adheres –unless displaced by satisfactory evidence of the acquisition and continuance of a domicile of choice;
- A domicile of choice is acquired only if it be affirmatively shown that the propositus is resident within a territory subject to a distinctive legal system with the intention, formed independently of external pressures, of residing there indefinitely. If a man intends to return to the land of his birth upon a clearly foreseen and reasonably anticipated contingency, e.g., the end of his job, the intention required by law is lacking; but, if he has in mind only a vague possibility, such as making a fortune (a modern example might be winning a football pool), or some sentiment about dying in the land of his fathers, such a state of mind is consistent with the intention required by law. But no clear line can be drawn: the ultimate decision in each case is one of fact – of the weight to be attached to the various factors and future contingencies in the contemplation of the propositus, their importance to him, and the probability, in his assessment, of the contingencies he has in contemplation being transformed into actualities
- It follows that, though a man has left the territory of his domicile of origin with the intention of never returning, though he be resident in a new territory, yet if his mind not be made up or evidence be lacking or unsatisfactory as to what is his state of mind, his domicile of origin adheres. And, if he has acquired but abandoned a domicile of choice either because he no longer resides in the territory or because he no longer intends to reside there definitely, the domicile of origin revives until such time as by a combination of residence and intention he acquires a new domicile of choice.
Scarman LJ[136]
The 1968 case of Flynn[137] is discussed in Chapter 1. The head note says
“per curiam Domicile of choice will be at an end when, on departing from a country, the intention to return has merely withered away and there has not been formed any positive intention never to return to live there: The death of the old intention suffices, without the birth of any new intention. ….”
In 2005 came Mark v. Mark[138], a House of Lords judgement. The basic facts are that a Nigerian general and his wives came to England at a time when he had fallen out with the government. He came on a work permit, and was later granted indefinite leave. His 4th wife became estranged from him and was not included in his successful application for indefinite leave. At the date the application was made she was out of the country and on her return she told the Immigration Officer she was rejoining her husband –which she knew to be untrue. She was therefore an illegal entrant. After a change in government in Nigeria the husband returned to Nigeria.
For an English divorce, the wife would have to have English domicile. Could a person here illegally have English domicile? The House of Lords decided that she could.
Lord Hope of Craighead observed that Solomon v. Solomon[139] and ex parte Donelly[140], both of which involved people unlawfully in the country (albeit that Donelly was currently out of the country) had been based upon a passage attributed to Marcellus in The Digest 50,1,31. His view was that the earlier judges had failed to understand the true meaning of the Latin passage.
“..But I think that the concept embraced by the word domicilium in Roman Law is more accurately reflected today, as it is in civilian jurisdictions, by the words “home” or “residence” than by the word “domicile”. The word “home” in Article 8(1) of the European Convention for the Protection of Fundamental Rights and Freedoms, for example, is expressed in other languages as “suo domicile”, “proprio domicile” and “suo domicilio”. With us the word “domicile” has acquired a narrower meaning. It refers to what Lord Westbury described as a person’s civil status for the purpose of determining various rights in civil law.”
“….In Szechter (orse Karsov) v. Szechter [1971] P 286, Sir Jocelyn Simon P held that the parties, who had been given leave to stay in the United Kingdom for a limited period, had acquired a domicile of choice in England by residing here with the intention of making this country their permanent home. Following Boldrini v. Boldrini and Martini [1932]P 9 and Cruh v. Cruh [1945] 2 All ER 545, he said at p 294-G that it was immaterial that their intentions were liable to be frustrated by the decision of the Secretary of State for the Home Department as to permission for their continued residence here. This is a clear indication that, under our law, a domicile of origin is not lost if the residence becomes unlawful at some later date.
In my opinion illegality is relevant to the question whether the person intended to reside in a country with the intention of living there indefinitely, but not to the question whether the person is present here. Evidence that the person intended to reside there indefinitely despite the illegality would need to be carefully scrutinised. But the question of whether a person is physically present in the country is not affected one way or the other by the question whether he has entered the country legally or illegally. If the court finds that the requisite intention has been established by credible and reliable evidence, it would seem to be contrary to principle to decline to give effect to it by recognising that a domicile of choice has been acquired, as Lord Westbury put it in Bell v. Kennedy (1868) LR 1 Sc & Div 307, 320 immediately upon the person’s arrival in that country.
Baroness Hale of Richmond outlined the facts and said
“It is not now disputed that the wife would be habitually resident and domiciled here were it not that her presence in this country was, at the material time, unlawful. The issue, therefore, is the impact of that illegality on the jurisdictional requirements set out in section 5(2) of the Domicile and Matrimonial Proceedings Act 1973. This has since been amended to give effect to the Council Regulations EC No 1347/2000 and EC No 2201/2003, but at the material time, it read as follows:
“The court shall have jurisdiction to entertain proceedings for divorce or judicial separation if (but only if) either of the parties to the marriage –
- is domiciled in England and Wales on the date when the proceedings are begun; or
- was habitually resident in England and Wales throughout the period of one year ending with that date.”
After discussing habitual residence she discussed a series of cases where the parties were lawfully here, albeit precariously
“There is a long line of cases showing that an alien may 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.”
“…But what if the residence here is not only precarious but actually unlawful? …There was no authority in England and Wales until Puttick v. Attorney –General [1980] Fam 1. However, there was Commonwealth authority, on the basis of which Dicey and Morris, The Conflict of Laws 9th Edition, 1973, at pp 96-97 “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”. This was adopted by Baker P in Puttick, albeit obiter, as he had already held that the propositus the notorious German terrorist Astrid Proll, did not have the animus manendi being on the run and ready to leave the moment the police caught up with her. Nor were the Commonwealth authorities upon which the text was based produced to him.
After discussing numerous authorities, Baroness Hale said
“My Lords, these authorities do not disclose a long-standing and consistent approach to the issue such that we might be reluctant to depart from it. It is necessary, therefore, to consider the matter as one of principle. The object of rules determining domicile is to discover the system of law with which the propositus is most closely connected for the range of purposes mentioned earlier. Sometimes that connection will be an advantage to him. Sometimes it will not. As Hughes J put it, at para 73
“the concept of domicile is not that of a benefit to the propositus. Rather, it is a neutral rule of law for determining that system of personal law with which the individual has the appropriate connection, so that it shall govern his personal status and questions relating to him and his affairs.”
“Unlike some of the purposes for which habitual residence may be important, the State has no particular interest one way or another. Indeed, so far as it does have an interest, this will probably lie in accepting that those who intend to remain here permanently have acquired a domicile here, whatever their immigration status.”
She also said
“… English law requires 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 ….”
“A further problem in regarding legality as an essential element, touched on by Hughes J, is the shifting nature of immigration status. An asylum seeker, for example, may commit a criminal offence by entering this country illegally. But on making his claim to the authorities, he may be granted temporary admission. His presence is no longer illegal, but under s11 (1) of the Immigration Act 1971 he is deemed not to be here at all. Is he then to be prevented from acquiring a domicile of choice here, although he undoubtedly has no intention of returning to his country of origin?”
Indeed, were he to be recognised as a refugee, his lawful status is backdated. What is to be the situation were he to die before a decision is reached in his case?
This is such a huge movement from the thinking in Solomon v. Solomon and In re Donelly that Mark v Mark should be seen as a landmark judgement.
In 2006 Agulian v. Cyganik[141] involved a man from Cyprus who got into trouble over a young lady and had to flee. His domicile of origin was Cyprus, and over time he bought and developed property there, sent his daughter there for her education, watched Cypriot television, and although a British Citizen described himself as a Cypriot. The difficulty was that he was engaged to a Pole who was illegally in England.
“This is a difficult case because my task is effectively to identify the intentions of a man who not only kept his true intentions [to himself], but whose statements about his intentions would often not be reliable.”
“For nearly 30 years he could have lived in Cyprus had he chosen, albeit not in the part of the island that was special to him…..But he stayed in London and made his life here, away from his family…..”
The Court of Appeal upheld the original judge’s finding of fact that the deceased had intended to marry his fiancée. However, did this mean that he was abandoning his domicile of origin in Cyprus?
“…The question is not so much whether Andreas intended eventually to live permanently in Cyprus, but whether it had been shown that, by the date of his death, he had formed the intention to live permanently in England.”
The Court of Appeal judges said that because of the length and depth of his commitment to Cyprus, then looking at the whole of his life there was not enough evidence to say that the deceased had abandoned his domicile of origin.
Chapter 4 – Conclusion
The overwhelming conclusion from the case law is that a domicile of origin is not easily lost. My comment above on Udny in relation to refugees is that Udny, generally regarded as strong on the retention of domicile of origin, is in reality insufficiently strong.
The evidential burden is always upon he who asserts there has been a change of domicile away from the domicile of origin.
Following Mark v. Mark[142], the court should not fixate upon the exact immigration status of the propitus. Whether he be a recognised refugee, the recipient of a grant of Humanitarian Protection or here utterly illegally is not indicative of what is or was in his mind. The first question must be
“Why did he leave his country?”
If he left his country for economic betterment, to make a new life, or to join family abroad he is very likely to have acquired a domicile of choice in the new country.
If however he fled persecution, discrimination, or other unpleasantness he was pushed rather than was pulled, and may have wanted to return when he could.
The second question must be
“At the relevant date had he formed the intention to live in England and Wales for the rest of his life?
The evidence suggested in Chapter 2 can help to show abandonment of his domicile of origin. To this should be added the evidence from Chapters 1 and 3 towards acquisition of English domicile.
The housing market in the UK was for many years such that the purchase of a freehold property is not really indicative of anything to do with domicile.
The essential question must be where is his “centre of gravity[143]”. Does/did he seriously expect to go back? If yes, then he clearly has not lost his domicile of origin.
By contrast, most of the illegal immigrants clearly want to live in England, and are fighting tooth and nail to stay here. The lives they lead on the economic fringes of society, living in relative poverty and often clandestinely show a determination to be here that shows that notwithstanding their problematic legal status they have acquired a domicile of choice in the UK. Mark v Mark is strong authority that these folk have acquired a domicile of choice.
_____________________________________________________________________
BIBLIOGRAPHY
Cheshire & North Private International Law 10th Edition Butterworths, London
Dicey Morris & Collins The Conflict of Laws 14th Edition (2006) Thomson Sweet & Maxwell, London
James C. Hathaway The Rights of Refugees Under International Law Cambridge University Press, Cambridge, 2005
R.W. Lee The Elements of Roman Law 4th Edition (1956) 6th Impression (1993) Sweet & Maxwell, London
MacDonald and Webber Immigration Law & Practice in the United Kingdom (2001) 5th Edition, Butterworth, London
Niccolo Machiavelli “The Prince” translated by George Bull Penguin Books London 1975
David Pearl A Textbook on Muslim Personal Law 2nd Edition (1987) Croom Helm, Beckenham
The Law Commission and The Scottish Law Commission Private International Law Choice of Law Rules in Marriage HC 3 (1987)
ARTICLES
The Arcane World of Domicile and Tax Nigel Goodeve-Docker
The Concept of non-domicile Simon Sweetman accountingweb.co.uk/cgi-bin/item.cgi?id. (07/06/2007)
Domicile of Choice and the Robert Gaines-Cooper case Malcolm Finney TaxationWeb.co.uk December 2006
Choice of Law Problems Arising When Unmarried Cohabitants Change Domicile William A. Reppy Jr 55 S.M.U. L. Rev. 274 (2002)
Slicing the American Pie: Federalism and Personal Law, Jeffrey A. Redding Yale Law School Faculty Scholarship Series Paper 10 (2007)
The Determination of Domicile, Captain Mack Borgen 65 Military Law Review, 133
WEB SITES
www.migrationwatchuk.org Briefing Paper 9.15 8 May 2008
[1] Mark v. Mark [2005] UKHL 42
[2] Cruh v. Cruh [1945] 2 All ER 545
[3] From “The Elements of Roman Law” by R.W. Lee (1956) p35.
[4] Niccolo Machiavelli “The Prince” translated by George Bull Penguin Books London 1975 p36
[5] Dicey Morris & Collins The Conflict of Laws 14th Edition 2006 p123
[6] Udny v. Udny [1869] {L.R.} 1 Sc & Div. 441
[7] Udny v. Udny [1869] {L.R.} 1 Sc & Div. 441
[8] Udny v. Udny [1869] {L.R.} 1 Sc & Div 441
[9] Udny v. Udny [1869] {L.R.} 1 Sc & Div 441.
[10] IRC v. Duchess of Portland 1982 STC 149
[11] See ”The Arcane World of Domicile and Tax” Nigel Goodeve-Docker
10. Inscription on the Statue of Liberty:
Not like the brazen giant of Greek fame,
With conquering limbs astride from land to land;
Here at our sea-washed, sunset gates shall stand
A mighty woman with a torch, whose flame
Is the imprisoned lightning, and her name
Mother of Exiles. From her beacon-hand
Glows world-wide welcome; her mild eyes command
The air-bridged harbor that twin cities frame.
“Keep, ancient lands, your storied pomp!” cries she
With silent lips. “Give me your tired, your poor,
Your huddled masses yearning to breathe free,
The wretched refuse of your teeming shore.
Send these, the homeless, tempest-tossed to me,
I lift my lamp beside the golden door!”
[13] IRC v. Bullock [1976] 1 W.L.R. 1178
[14] Buswell v. IRC [1974] 1 WLR 1631
[15] Winans v. AG [1904] A.C. 287 at 291
[16] Udny v. Udny [1869] {L.R.} 1 Sc & Div. 441 at 459
[17] In re Flynn; Flynn v. Flynn [1968] 1 W.L.R.103
[18] Megarry J is referring to the judgement of Scarman J in Re Fuld (No 3)[1966] 2 W.L.R. 717
[19] For this and the three subsequent paragraphs I have followed closely, but slightly amended, page 423 of Immigration Law and Practice in the United Kingdom MacDonald and Webber 5th Edition 2001
[20] Lord MacNaughten in Winans v. A-G [1904] AC 287 at 290
[21] Re Steer {1858} 3 H & N 594; A-G v. Yule and Mercantile Bank of India (1931) 145 LT 9
[22] Begum (Rokeya) [1983] Imm AR 163
[23] Buswell v. IRC [1974] 2 All ER 520
[24] Winans v. AG [1904] AC 287
[25] Scappaticci v. A-G [1955] 1 All ER 193
[26] Re Lloyd Evans, National Provincial Bank v. Evans [1947] Ch 695
[27] 1955 Hague Convention Private International Law relating to the settlement of the conflicts between the law of nationality and the law of domicile
[28] 1989 Hague Convention on the law applicable to succession to the estates of deceased persons
[29] Articles 3(2), 3(3), 19(1), 19(4)
[30] Section 45 of the Family Law Act 1986. An example is H v. H (Queen’s Proctor Intervening) (Validity of Japanese Divorce) 14 September 2006 reported in Family Law Week
[31] Solomon v. Solomon (1912) 29 WB (NSW) 68, Szechter (orse Karsov) v. Szechter [1971] P 286, May v. May [1943] 2 All ER 146, Cruh v. Cruh [1945] 2 All ER 545, Jablonowski v Jablonowski (1973) 28 DLR (3d) 440, Mark v. Mark [2005] UKHL 42k ,
[32] Doucet v. Geoghan [1878] 9 Ch D. 441
[33] Morgan v. Cilento [2004] EWHC 188 (Ch), Cyganik v. Agulian [2006] EWCA Civ 129
[34] 1989 Hague Convention on the law applicable to succession to the estates of deceased persons
[35] 26 USC 911 Internal Revenue Code Part III.
[36] (1962) 108 C.L.R.
[37] IRC v. Bullock[1975] 1 W.L.R. 1178
[38] SC 3044/00
[39] Morgan & Anor v. Cilento & Others [2004] EWHC 188 (Ch) (09 February 2004)
[40] Agulian & Anr v. Cyganik [2006] EWCA Civ 129
[41] Mark v. Mark [2005] UKHL 42
[42] In re Martin, Loustalan v. Loustalan [1900] P 211
[43] Christine de Nichols v. Curlier and Others [1900] AC 21
[44] In re Martin, Loustalan v. Loustalan [1900] P. 211 at 216
[45] Celestine De Nichols v. Curlier and Others [1900] A.C. 21
[46] Code Civil Articles 1393 and 1401
[47] Code Civil Articles 1401-1496 in Title V “ Du contrat de marriage et des droits respectifs des epoux”
[48] Collier v. Rivaz (1841) 2 Curt. 855
[49] Shakespeare Henry IV Part 1 from St Crispin’s Day speech:
“He who shall survive this day, and see old age,
Will yearly on the vigil feast his neighbours,
And say ‘To-morrow is Saint Crispian.’
Then will he strip his sleeve and show his scars,
And say ‘These wounds I had on Crispian’s day.’
Old men forget; yet all shall be forgot,
But he’ll remember, with advantages,
What feats he did that day. Then shall our names,
Familiar in his mouth as household words-
Harry the King, Bedford and Exeter,
Warwick and Talbot, Salisbury and Gloucester-
Be in their flowing cups freshly rememb’red. “
[50] Bell v. Kennedy [1868] { LR} 1 Sc & Div 307, H. v. H. (Queen’s Proctor Intervening ) (Validity of Japanese Divorce) 14 September 2006 reported in Family Law Week
[51] In re Lloyd Evans; National Provincial Bank v. Evans [1947] 1Ch 695
[52]Inland Revenue Commissioners v. Bullock [1976] 1 W.L.R. 1178 at 1182
[53] The Domicile and Matrimonial Proceedings Act 1973 declares the age for domicile independence to be 16.
[54] Bell v. Kennedy [1868] {LR} 1 SC & Div 307, Udny v. Udny [1869] {L.R.} 1 Sc & Div. 441, H. v. H. (Queen’s Proctor Intervening) (Validity of Japanese Divorce) 14 September 2006 reported in Family Law Week.
[55] Bell v. Kennedy [1868] {LR} 1 SC & Div 307, R. v. Entry Clearance Officer Islamabad ex p. Ali (CO/3585/97)
[56]Udny v. Udny [1869] {L.R.} 1 Sc & Div. 441, Winans and Another v. Attorney-General [1904] 1 A.C. 287
[57] In re Martin. Loustalan v. Loustalan [1900] P 211
[58] Bell v. Kennedy [1868] {LR} 1 SC & Div 307
[59] Morgan & Anr. v. Cilento and Others [2004] EWHC 188 (Ch) (9 February 2004)
[60] Bell v. Kennedy [1868] {LR} 1 SC & Div 307
[61] Lord v. Colvin (1859) 4 Drew. 366
[62] Morgan & Anr v. Cilento & Ors [2004] EWHC 188 (Ch)
[63] Morgan & Anr v. Cilento & Ors [2004] EWHC 188 (Ch)
[64] Agulian v. Cyganik [2006] EWCA Civ 129
[65] R. v. Entry Clearance Officer Islamabad, ex p. Ali (CO/3585/97) 20 January 1999, QBD
[66] Bell v. Kennedy [1868] {LR} 1 SC & Div 307, In re Lloyd Evans; National Provincial Bank v. Evans [1947] 1Ch 695
[67] In Re Flynn; Flynn v. Flynn [1968] 1 W.L.R.103, Morgan v. Cilento [2004] EWHC 188 (Ch) Case No HC02 C03074, H. v H. (Queens Proctor Intervening) (Validity of Japanese Divorce) 14 September 2006 reported in Family Law Week
[68] Bell v. Kennedy [1868] {LR} 1 SC & Div 307 , In re Lloyd Evans; National Provincial Bank v. Evans [1947] 1 Ch 695, Morgan v. Cilento [2004] EWHC 188 (Ch) Case No HC02 C03074
[69] In Re Fuld, dcd No 3 [1966] 2 W.L.R. 717, Morgan & Anr v. Cilento & Ors [2004] EWHC 188 (Ch), Winans v Attorney General [1904] 1 AC 287
[70] Winans v Attorney General [1904] 1 AC 287
[71] Bell v. Kennedy [1868] {LR} 1 SC & Div 307
[72] Morgan & Anr v. Cilento & Ors [2004] EWHC 188 (Ch), R. v. Entry Clearance Officer, Islamabad ex p. Ali(CO/3585/97)
[73] IRC v. Bullock [1976] 1 W.L.R. 1178 , Morgan & Anr v. Cilento & Ors [2004] EWHC 188 (Ch), Winans v Attorney General [1904] 1 AC 287
[74] Suglove v. Oklahoma Tax Commission 1979 OK 168, 605 P.2d 1315
[75] IRC v. Bullock [1976] 1 W.L.R. 1178
[76] Bell v. Kennedy [1868] {LR} 1 SC & Div 307
[77] Buswell v. IRC [1974] 2 All ER 520 , but see R. v. Entry Clearance Officer, Islamabad ex p. Ali (CO/3585/97) 20 January 1999, QBD
[78] Robert Moore SC 3044/00
[79] Udny v. Udny [1869] {L.R.} 1 Sc & Div. 441, Morgan & Anr v. Cilento & Ors [2004] EWHC 188 (Ch), In Re Flynn; Flynn v. Flynn [1968] 1 W.L.R.103
[80] Udny v. Udny [1869] {L.R.} 1 Sc & Div. 441, IRC v. Bullock [1976] 1 W.L.R. 1178 , Winans v. AG [1904] 1 AC 287 , R. v. Entry Clearance Officer, Islamabad ex p. Ali (CO/3585/97) 20 January 1999, QBD
[81] Udny v. Udny [1869] {L.R.} 1 Sc & Div. 441, Morgan v. Cilentro, R. v. Entry Clearance Officer, Islamabad ex p. Ali (CO/3585/97) 20 January 1999, QBD
[82] Suglove v. Oklahoma Tax Commission 1979 OK 168, 605 P.2d 1315
[83] Suglove v. Oklahoma Tax Commission 1979 OK 168, 605 P.2d 1315 (Oklahoma Supreme Court)
[84] Robert Moore SC 3044/00
[85] Winans v Attorney General [1904] 1 AC 287, Robert Moore SC 3044/00
[86] Robert Moore SC 3044/00
[87] Robert Moore SC 3044/00
[88] Mark v. Mark [2005] UKHL 42
[89] In re Lloyd Evans; National Provincial Bank v. Evans [1947] 1Ch 695
[90] Morgan & Anr v. Cilento & Ors [2004] EWHC 188 (Ch),,
[91] S. Yemen [2003] UKIAT 4 June 2003 unreported, Wahl v. A-G [1932] 147 L.T. 382
[92] IRC v. Bullock [1976] 1 W.L.R. 1178, Morgan & Anr v. Cilento & Ors [2004] EWHC 188 (Ch),,
[93] Wahl v. A-G 1932 147 L.T. 382
[94] Mark v. Mark [2005] UKHL 42 (30 June 2005), ex parte Donelly 1915 WLD 29, Solomon v. Solomon (1912) 29 WB (NSW) 68, Puttick v. Attorney General [1980] Fam 1, Szechter (orse Karsov v. Szechter [1971] P 286, May v. May [1943] 2 All ER 146, Cruh v. Cruh [1945] 2 All ER 545, Jablonowski v Jablonowski (1973) 28 DLR (3d) 440
[95] Udny v. Udny [1869] {L.R.} 1 Sc & Div. 441, Winans v Attorney General [1904] 1 AC 287
, Agulian v. Cyganik [2006] EWCA Civ 129
[96] In re Martin, Loustalan v. Loustalan
[97] Re Flynn [1968] 1 W.L.R. 103
[98] The 1951 Convention Relating to the Status of Refugees (as amended by the 1967 Protocol to the Convention)
[99] www.migrationwatchuk.org Briefing Paper 9.15 8 May 2008
[100] Cyganik v. Agulian [2006] EWCA Civ 129.
[101] Dicey Morris & Collins pp 146/7
[102] Cases quoted here are De Bonneval v. De Bonneval (1838) 1 Curt. 856; Commissioners of Charitable Donations in Ireland v. Devereux (1842) 13 Sim. 14; Re Lloyd Evans[1947] Ch. 695; Cyganik v. Agulian [2006] EWCA Civ.129, May v. May [1943] 2 All E.R. 146; In the Matter of Wu (1994) F.L.C. 92-477; Re Martin, Loustalan v. Loustalan [1900} P.211 (CA)
[103] S25a of Immigration Act 1971 (as amended) makes it a criminal offence to assist the entry of a person who intends to claim stay in the UK under the Refugee Convention or the European Convention on Human Rights and Fundamental Freedoms
[104] Source required. I think it is Nelson Mandela but despite great effort have not been able to verify.
[105] Bell v. Kennedy [1868] {LR} 1 SC & Div 307
[106] Jopp v. Wood (1865) 4 De G.J. & Sm. 616
[107] Solomon v. Salomon (1912) 29 WN (NSW) 68
[108] Ex parte Donnelly 1915 WLD 29
[109] Cruh v. Cruh [1945] 2 All ER 545
[110] Udny v. Udny [1869] {L.R.} 1 Sc & Div. 441 at 457-458
[111] Tohura Bibi v. Entry Clearance Officer Dhaka [2007] EWCA Civ 740
[112] Following decided cases R. v. SSHD ex p. Sultan Mahmood [1981] QB 59, R. v. SSHD ex p. Parvaz Akhtar [1981] QB 46 the application in a stolen identity was void ab initio.
[113] The Tohura Bibi case may be flawed in fact as well as principle. The Court of Appeal assumed as fact that the work permit issued in the name Abdul Sattar existed for a real person called Abdul Sattar. In the 1960s an employer desperate for labour might ask an existing worker to recruit for the employer in his home village. Vouchers would be obtained in the names listed by the worker, who often were fellow villagers but were sometimes invented. There may never have been a real Abdul Sattar. It would however be unreasonable to put the Home Office to proof of the existence or non existence of a person 40 years ago. The reason for suggesting that the case is flawed in principle is that the real Abdul Sattar (if he existed) never came to the United Kingdom and so was not known to the Home Office. It is the person known to the Home Office as Abdul Sattar who applied for citizenship. Although in Tohura Bibi the Court of Appeal referred to Abdul Mannan [1971] 1WLR 859 the Court of Appeal appears not to have considered that in Mark v. Mark [2005] UKHL 42 the House of Lords refused to follow Abdul Mannan. The nonsensical position, if both cases are correct, is that Mrs Mark is not “legally ordinarily resident” in England but has domicile here.
[114] R. v. SSHD ex p. Naheed Ejaz [1994] QB 496
[115] No.
[116] Asylum and Immigration (Treatment of Claimants) Act 2004 s8
[117] H. v H. (Queens Proctor Intervening) (Validity of Japanese Divorce) 14 September 2006 reported in Family Law Week
[118] At one time Army pay was in part related to family size, so new spouses and children were entered on the Army records
[119] Szechter (Orse, Karsov) v. Szechter [1971] 1 P 286 at 289
[120] In the Matter of the Estate of FANNIE MAY, Deceased. Court of Appeals of New York 305 N.Y.486; 114 N.E.2d 4; 1953 N.Y. LEXIS 791
[121] There is huge temptation here to discuss the current row about taxation of “non-doms” but as they are neither illegal immigrants nor refugees they are outside the scope of this thesis.
[122] Collier v. Rivaz (1841) 2 Curt. 855
[123] The Brussels Convention on jurisdiction and the enforcement of judgements in civil and commercial matters
[124] Council Regulation (EC) 44/2001on jurisdiction and the enforcement of judgements in civil and commercial matters
[125] Council Regulation (EC) 44/2001on jurisdiction and the enforcement of judgements in civil and commercial matters
[126] The Lugano Convention: Convention on jurisdiction and the enforcement of judgements in civil and commercial matters 16 September 1988
[127] Bell v. Kennedy [1868] {LR} 1 SC & Div 307
[128] Bell v. Kennedy [1868] {LR} 1 SC & Div 307 at 322-323
[129] At 323
[130] Bell v. Kennedy [1868] {LR} 1 SC & Div 307
[131] Udny v. Udny (1869) [ L.R.] 1 Sc & Div 441
[132] Doucet v. Geoghan [1878] 9 Ch D. 441
[133] Winans and Another v. Attorney-General [1904] 1 A.C.287
[134] In re Lloyd Evans; National Provincial Bank v. Evans [1947] 1Ch 695
[135] In the Estate of Fuld, dcsd (No 3); Hartley and Another v. Fuld and Others (Attorney General Intervening) [1966] 2 W.L.R. 717
[136] At pages 725/6
[137] In Re Flynn; Flynn v. Flynn [1968] 1 W.L.R.103
[138] Mark v. Mark [2005] UKHL 42
[139] Solomon v. Solomon (1912) 29 WN(NSW) 68
[140] Ex parte Donelly 1915 WLD 29
[141] Agulian and Anr v. Cyganik [2006] EWCA Civ 129
[142] Mark v. Mark [2005] UKHL 42
[143] In Re Flynn; Flynn v. Flynn [1968] 1 W.L.R.103,
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