Habitual Residence Test – Returning UK citizen

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    Need help to deal with this case. Guidance and caselaw is not entirely clear.

    We have a 49-year old British citizen returning to the UK with 4 children whom she says have British citizenship by ‘Birthright’.

    The reason for the return is apparently separation from her partner whom she has left in Canada. He is paying her Can$3000 a month ‘maintenance’.

    She says the property they owned has been sold and 50% of the equity has been used to repay business debts. She has also spent money on paying 6 months rent here on renting a home. Her parents aged 80 and 90 are old and infirm and she is helping to care for them. She says she would get a job in UK and reside in UK indefinitiely but obviously does not have one yet.

    She is classed as a ‘Factual Resident’ for Canadian tax purposes and she gets a Canadian Child Tax Benefit of Can$324 a month paid into her Canadian bank accounts. ( http://www.cra-arc.gc.ca/E/pub/tg/t4131/t4131-e.html )

    She also appears to have Canadian credit cards. She says she has no intention to claim UK child Benefit or to close her Canadian bank accounts.

    Not sure if the Swaddling case applies and whether as a returning British citizen we can and should ignore the Habitual Residence Test. Zebedee guide to HB/CTB 2006/07 recognises the conflict in guidance on page 404. As a ‘Factual Resident’ of Canada it would imply her main residence is still in Canada – see website address above. Any views or experience you can share on this?


    My understanding is that there are two elements involved in establishing whether a person is habitually resident: they should have been in the country for an “appreciable period” and they should have a “settled intention” to remain.

    The “appreciable period” bit is the one that the Swaddling case dealt with: generally you will need to have been in the country for at least one to three months but Mr Swaddling wanted to claim IS immediately upon returning from France, where he had exercised his right to work as an EEA national. Commissioner Mesher asked the European Court to rule on whether the requirement to serve an “appreciable period” of time before becoming habitually resident was in effect prejudicing Mr Swaddling’s right to work in France and then return home. The court ruled on a much narrower point that Mr S had the right to receive IS immediately because it was a work replacement benefit covered by an obscure amendment to EU regulation 1408/71 (its third appearance of the day!) – HB & CTB aren’t covered. So the Commissoiner’s wider question remains unanswered. But in any case, it doesn’t apply to people returning from Canada because you don’t go to Canada in your capacity as an EEA worker. So this claimant will have to get some weeks under her belt before you can say she is habitually resident.

    It sounds to me as if the “settled intention” part of the test might also be a problem for your claimant at this stage – she seems to be showing reluctance to cut her ties with Canada and she doesn’t seem inclined to put down roots in the UK just yet.


    [quote:74a8c2229f]The ‘Swaddling’ judgement
    7.150 On 25 February 1999 the European Court of Justice gave judgement in a case about the application of the HRT on a UK national returning to the UK from a period of residence in another European Union state (ECJ: C-90/97, ‘The Swaddling case’). The case involved the application of the HRT on a claim for IS. The Court decided that a person with habitual residence in the UK who leaves and becomes habitually resident in another Member State and then returns to resume UK residence is habitually resident immediately on return. While the case involved a claim for IS the judgement also affects claims for HB and CTB.

    7.151 The effect of the judgement is that

    1 a claimant of any nationality who was previously habitually resident in the UK, Republic of Ireland, Channel Islands or Isle of Man, and

    a moved to and lived in any country outside the CTA, and

    b returns to resume the previous residence, is

    2 habitually resident immediately on arrival in the CTA

    Difficult one. Do you apply the guidance as in the guidance manual, even though you know it is probably wrong? I think that is only a decision you can make…

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