Domicile in British Nationality Applications
‘Domicile’ is a complex concept which has been subject to a great deal of analysis by the courts and is relevant to a variety of branches of the law, from family to tax law. It is also often relevant to nationality law. This article will consider the relevance of the concept of domicile to British nationality applications, and the guidance that has been provided to Home Office caseworkers for assessing a person’s domicile.
What is Domicile?
The concept of domicile has been shaped by case law over many decades and cannot be easily defined. However, the Home Office’s guidance for its caseworkers defines domicile as “a legal term used for the territory whose laws apply to a particular person.”
When Would Domicile Be Relevant to My Nationality Application?
The Home Office’s guidance directs its caseworkers to consider a person’s domicile in the following circumstances:
- To assess whether a marriage valid;
- To assess whether a divorce is valid;
- To see if a man may be treated as a child’s father for nationality purposes;
Domicile may be relevant in determining whether a person might have automatically acquired British citizenship at birth. One example would be an application made for a child born before 1 July 2006 who seeks to demonstrate a claim to British nationality through their father. In determining this, a caseworker would need to determine whether the child should be considered to have been legitimate or illegitimate at birth. In UK law, the relevant question is how the child would be viewed under the law of the place where the father was domiciled at the time of the child’s birth. Therefore, if the place of a person’s father’s domicile had no concept of illegitimacy at the time of a child’s birth, the child will be viewed as legitimate regardless of whether or not their parents were married or subsequently married. This would be an important question in determining whether that child may have automatically acquired British citizenship, or whether an application for registration may need to be considered.
A related example that the Home Office highlights in its guidance is legitimation. Under Section 47 of the British Nationality Act 1981 (which remains in force for children born before 1 July 2006), a child who would be deemed to be illegitimate at birth by the country of their father’s domicile will only be deemed to have been legitimated by a subsequent marriage of their parents if the place of that the child’s father was domiciled at the time of the marriage would deem the child to have been legitimated following the marriage.
These are only two examples in which the question of domicile might arise. It may arise in a number of circumstances and advice should be sought based on the facts of any particular case.
How Does the Home Office Assess Where a Person Is Domiciled?
The Home Office’s guidance indicates that a person’s domicile will be presumed to be the country of their parents’ domicile at the time of their birth. This is known as their ‘domicile of origin’. This presumption will be made unless satisfactory evidence is produced to the contrary. The Home Office’s guidance states that in cases where a person’s domicile is considered to be ‘less obvious’, a domicile questionnaire may be provided. A ‘less obvious’ case is likely to be one where a person may have acquired a ‘domicile of choice’ which is different to their domicile of origin.
It is important to note that domicile can be distinguished from factors such as nationality or habitual residence. It is possible for someone to be a citizen of one country and to be domiciled in another, or to be habitually resident in a country where they are not considered to be domicile.
In analysing the responses to such a questionnaire, the Home Office guidance states that the ‘crucial test’ when considering whether a person has lost their domicile of origin and acquired a domicile of choice is to look at the intention of that person – whether they intend to establish a family and/or remain at their domicile of choice indefinitely. In determining this intention, the Home Office may have regard to the reason that a person chose to reside in a certain place, whether the residence was freely chosen and whether the residence is precarious. However, domicile does not necessarily reflect a person’s immigration status. Further, although length of residence might be an important factor in assessing domicile, it may not be determinative.
The Home Office guidance confirms that this is a fact sensitive assessment:
“To show a change of domicile it is essential to establish an intention of remaining in the place permanently or for an unlimited time. Every event in a person’s life may be relevant. You must therefore take into account of all the evidence which can reasonably be gathered. Declarations of intention to remain permanently or to retire in a place are important, but you must bear in mind the context in which they are made and whether they are consistent with the person’s actions.”
The additional factors listed in the guidance which will be taken into account include statutory declarations of an intention to reside permanently in a certain place (for example in a naturalisation application), the possession of property (taking into account how and why it was acquired), the purchase of burial grounds, the nature and length of a person’s employment, their exercise of political rights, the residence of their family and the place that an individual chooses to have their children educated. This list of factors is not exhaustive. As stated above, every event in a person’s life may be considered to be relevant. Establishing deep roots in a country may not be sufficient. The Home Office’s guidance states that:
“For example, where a person holds a British passport, owns a house and has a bank account in the UK but travels regularly to see family members in their country (domicile) of origin and own land or properties there, that person would be regarded as having retained their domicile of origin. Although this person has established deep roots in the UK, they have at the same maintained firm contacts with their country of origin.”
The burden will be on the person who is claiming a change of domicile to prove that the change has taken place and for the reasons outlined above, such matters can be difficult to evidence. Any application that relies on an assertion that a person’s domicile is not their domicile of origin must be carefully prepared.
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