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	England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Mark v Mark [2004] EWCA Civ 168 (19 February 2004) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2004/168.html Cite as: [2004] 3 WLR 641, [2004] EWCA Civ 168, [2005] Fam 267

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IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM HIGH COURT OF JUSTICE
(Family Division)
MR JUSTICE HUGHES

		Royal Courts of Justice Strand, London WC2A 2LL
		19 February 2004

THORPE LJ:

INTRODUCTION

1. This Appeal requires this court to decide the extent to which an overstayer is disqualified by illegality from asserting an habitual residence or a domicile of choice in this jurisdiction in order to satisfy the provisions of Section 5(2) of the Domicile and Matrimonial Proceedings Act 1973. That subsection is in the following terms:-

"(2) the court shall have jurisdiction to entertain proceedings for divorce or judicial separation if (and only if) either of the parties to the marriage - (a) is domiciled in England or Wales on the date when the proceedings are begun; or (b) was habitually resident in England and Wales throughout the period of one year ending with that date"

The section has since been amended to reflect the provisions of the council regulation Brussels II (1347/2000 of 29 May 2000 on Jurisdiction and the Recognition and Enforcement of Judgments in Matrimonial Matters and in Matters of Parental Responsibility for Children of both Spouses) which came into force on the 1^st March 2001. In its amended form, Section 5(2) now reads:-

"(2) the court shall have jurisdiction to entertain proceedings for divorce or judicial separation if (and only if) – (a) the court has jurisdiction under the Council Regulation: or (b) no court of a Contracting State has jurisdiction under the Council Regulation and either of the parties to the marriage is domiciled in England and Wales on the date when the proceedings are begun"

2. The petition with which this Appeal is concerned was filed on the 17^th June 2000. Thus the court's jurisdiction is to be determined by Section 5(2) as originally enacted. The long interim since the filing of the petition has been filled with expensive and strategic skirmishes between the parties in this jurisdiction and in Nigeria. In consequence, the costs in this jurisdiction of the two sides together now comfortably exceed £2,000,000, without having achieved either the dissolution of the marriage or the more acute question of what share of the husband's considerable fortune should be made over to the wife in order to determinate the husband's financial responsibilities for her.

The History of the Families

3. The Appellant husband is a fifty-five year old Nigerian. He has married six women by customary marriages. (He subsequently parted from the third by customary divorce). The respondent wife was the fourth wife in this series. She is a fifty-two year old Nigerian. At the date of their customary marriage (perhaps on the 12^th February 1979) the husband was an army major and the wife a practising lawyer, with her own chambers in Port Harcourt. By means not revealed in the judgments below the husband amassed a great fortune in the 1980s. In consequence he was able to arrange for the four children of this marriage to be born in London and to be educated in Europe, principally in England. He provided a London home for the family. He had a man of business in Northern Ireland and a personal assistant in London to assist in the management of his international fortune. From about 1990 the wife lived mainly in London. She has not returned to Nigeria since 1993. It was in November 1993 that General Abacha seized power in Nigeria and the husband was forced into exile. That no doubt contributed to the decision to upgrade the London house. The current property in Kingston upon Thames is worth in excess of £2,000,000.
4. During his exile the parties were principally based in London. However, both travelled, for business (in the husband's case), holidays, or, (in the wife's case) study. Indeed in 1995 the husband took his sixth customary wife whilst in Ghana.
5. The husband's exile ended with the death of General Abacha on 8^th June 1998. He returned to Nigeria in the following September. The wife expected to return with him, but it was not to be. He declined to take her or to arrange for her to follow him. By July 1999 it was plain to her that she was on her own. By June 2000 the husband was communicating with her through solicitors
6. On his return to Nigeria the husband was elected a Senator in the Upper House and has since become Chairman of the Senate Committee for Banking and Commerce and a member of the committees for Internal Affairs, African Co-operation, and National Security and Police.

The Immigration History

7. Prior to the 1993 coup the parties had entered the United Kingdom on visitors' visas, obtaining leave to remain for periods of six months at a time. However, once in exile the husband obtained on 2^nd April 1994 a work permit enabling him to reside in the United Kingdom. This was granted on the premise that he was employed by the construction company controlled by his man of business. His salary of £40,000 per annum was subject to the usual PAYE deductions. This work permit expired on 30^th April 1998. However it offered nothing for the wife and the children. Accordingly the wife sought inclusion on his permit. The Home Office required a marriage certificate. She did not have a certificate of the customary marriage, nor could she enter Nigeria to seek one. According she and the husband went through a ceremony of marriage at the Merton Register Office on 28^th May 1996. Given that the prior polygamous marriage was recognised in this jurisdiction as a valid marriage, the Merton ceremony was a nullity. However, it was effective to obtain on 6^th June 1996 for the wife and the two youngest children leave to remain until 30^th April 1998. In his judgment of 14^th March 2002 Hughes J found that the wife also saw the ceremony as cementing her position as principal wife, vainly, as things turned out.
8. In November 1996 the husband procured for himself and his family Belizean nationality. That maybe an indication of his insecurity and of his anxieties for the future. The immediate advantage was the issue of Belizean passports to all the family. During this period the wife joined a religious group that entailed attendance at international bible studies and conferences. She attended one such in Florida from October 1997 to April 1998.
9. The husband during her absence belatedly addressed the expiry of his work permit. He instructed a specialist solicitor to apply for indefinite leave to remain for himself and the two youngest children. Leave was granted on the 24^th April 1998. Technically the wife could not be included, since at the date of the application she was in Florida. But it seems reasonably clear that the husband was abandoning her since he did not inform her of the instruction he had given to his solicitor, nor did he warn her of the urgent need to apply when she returned from Florida on 29^th April 1998. To quote the finding of Hughes J in his judgment under Appeal at paragraph 28:-

"Although she had taken her own advice in 1996, he had otherwise been responsible for travel documents. It was he who had obtained the Belizean passports. The wife's leave to remain was, as he knew perfectly well, based on his, because she was dependent upon him. Since however he did nothing to include her, and since on her return she did nothing either, it came about that after 30^th April 1998 she had no leave to remain and her status, unlike all the rest of the family, was that of an overstayer."

10. Later in 1998 or in 1999 during one of the husband's visits to London, the wife gave the husband her passport so that he could instruct his solicitor to regularise her position. It seems that nothing was done for her and in due course she recovered her passport.
11. Next she gave her passport to the husband's man of business so that he could apply for indefinite leave on her behalf. His curt response of 2^nd July 1999 was :-

"Unfortunately I cannot advise any positive outcome and would need confirmation and help from (the husband) to proceed"

12. The wife later had the opportunity to take advantage of a scheme opened between February and October 2000 to assist overstayers with a good case for leave to remain. She was advised that whilst an application was pending it would be treated as withdrawn if she left the United Kingdom. Her cavalier response was to leave on three separate occasions using her Belizean passport, the existence of which she concealed from her advisors. On each re-entry she obtained a six months visitors visa, misrepresenting to the immigration authority that she intended to depart within that period, when her clear intention was to remain indefinitely. When proceedings were underway, she equally concealed these circumstances from her solicitors and the court. The full story only emerged during the course of her oral evidence. Hughes J described her cavalier approach and concealment as lamentable but pointless, since her husband had full knowledge of her Belizean nationality and passport.
13. The wife's position was only finally regularised by the grant of indefinite leave to remain on 9^th March 2002. However Hughes J observed that leave was granted on the unfounded basis that the wife had been continuously in the United Kingdom since November 1995 and that her only nationality and passport were Nigerian.

The History of the Proceedings

14. On 29^th June 2000 the husband's English solicitors, on his instructions, invited the wife to present a divorce petition in England. This she did on 17^th July 2000 at the same time obtaining an injunction preventing the husband from removing his assets from the jurisdiction. The petition alleged the wife's habitual residence within this jurisdiction, a plea admitted by the husband in his answer.
15. At some date in the summer of 2000 the husband filed a divorce petition in the customary court in Nigeria. He asserted that it predated the wife's London petition. Hughes J was sceptical of this assertion. In his judgment of the 14^th March 2002 he said:-

"Accordingly I do not rule out the very real possibility that the husband is not truthful about this, with the consequence that a Nigerian court official has been induced to be untruthful also."

16. On the 13^th December 2000 the wife obtained a substantial order for maintenance pending suit. On the 2^nd February 2001 the husband applied for a stay of the wife's English petition invoking the court's discretionary jurisdiction under paragraph 9 of schedule 1 of the Domicile and Matrimonial Proceedings Act 1973. In the following month the wife issued an application under part 4 of the Family Law Act 1996 seeking an occupation order in relation to the Kingston property. This application was hard fought by the husband and failed at a contested hearing before Wall J.
17. In May 2001 the husband filed a fresh divorce petition in the customary court in Nigeria, the first having been struck out. In the following month he applied in this jurisdiction for a stay of the wife's ancillary relief application and for the downward variation of her order for maintenance pending suit. In October 2001 he issued a further application seeking the suspension of all payments under the maintenance pending suit order. At the same time he applied in the Nigerian customary court for a declaration of validity of his four other subsisting customary marriages. This application was provoked by the wife's assertion that hers was the only valid marriage, and that the husband's other associations were adulterous, a plea ultimately abandoned at the hearings before Hughes J in March 2002.
18. Those hearings were conducted between 4^th and 14^th March 2002. During the course of the trial of the stay applications the husband, for the first time, gave notice that he intended to challenge the court's jurisdiction on the basis that, as an overstayer, the wife lacked the necessary qualifications.
19. The judgment of Hughes J of 14^th March 2002 dismissed the husband's stay applications. He directed that the husband's challenge to the court's jurisdiction should be heard in June and he granted the wife leave to amend her petition to allege in the alternative the husband's habitual residence and the English domicile of choice of both parties. The hearing took place on 11^th and 12^th June and judgment was reserved, being subsequently handed down on 14^th August 2002. The order of that date dismissed the husband's application, the judge finding jurisdiction on the grounds of the wife's English domicile at the date of her petition. Costs were not dealt with on that day but by a subsequent order at the conclusion of a hearing on 16^th October 2002.
20. Permission to appeal was refused by Hughes J but granted by this court in November 2002. However, the court directed that the Appeal should not proceed until the parties had explored alternative dispute resolutions within the Court of Appeal scheme. Mediation failed on the 7^th May 2003.
21. The Appeal opened on the November 25^th 2003 but was adjourned to enable the court to obtain the assistance of counsel instructed by the Attorney General. In the event it was the Queen's Proctor who instructed Mr Michael Nicholls to assist the court at the resumed hearing on the 22^nd December 2003.

The Issues for Determination on the Appeal

22. The issues which must be determined can be conveniently summarised as follow:-

i) Was Hughes J right in law to hold that the wife had not been habitually resident in this jurisdiction throughout the twelve months immediately preceding the presentation of her petition on the grounds that throughout that period she was an overstayer? This issue is raised by the wife's respondent's notice.

ii) Was Hughes J right in law to hold that the wife had a domicile of choice in this jurisdiction on 17^th June 2000 despite the fact that on, and for some time before, that date she was an overstayer. This is the sole question raised by the husband's Appeal.

iii) Did Hughes J misdirect himself in law in concluding that the husband was not habitually resident in this jurisdiction throughout the twelve months immediately preceding the presentation of the wife's petition. This question is also raised by the wife's respondent's notice.

23. In relation to issue 1 above, Mr Umezuruike, the leading junior counsel for the wife, raised a number of submissions. The only one that had any force was the submission that the judge's conclusion deprived the wife of the right to present her petition contrary to Article 6 of the European Convention on Human Rights.
24. Although Mr Umezuruike tells us that the Article 6 point was raised in the course of his submissions below it is not mentioned in the judgment.
25. Before considering these issues I will briefly record the judges reasons for his conclusions.
26. In relation to the wife's claim that jurisdiction was established by her incontrovertible presence within the jurisdiction throughout the twelve months immediately preceding the presentation of her petition, Hughes J applied a line of clear authority culminating in the decision of the House of Lords in Reg. v Barnet London Borough Council ex parte Nilish Shah (1983) 2 AC 309 to the effect that an illegal immigrant is debarred from claiming benefits, entitlement to which is dependent on some period of habitual residence in this jurisdiction. As Lord Scarman said at 343G:-

"Unless, therefore, it can be shown that the statutory framework for the legal context in which the words are used requires a different meaning, I unhesitatingly subscribe to the view that "ordinarily resident" refers to a man's abode in a particular place or country which he has adopted voluntarily and for settle purposes as part of the regular order of his life for the time being, whether or short or of long duration.

There is, of course, one important exception. If a man's presence in a particular place or country is unlawful, e.g. in breach of the immigration laws, he cannot rely on his unlawful residence as constituting ordinary residence, (even though in a tax case the Crown may be able to do so): in re Abdul Mannan (1971) 1 WLR 859 and Reg. v Secretary of State for the Home Department, Ex parte Margueritte (1982) 3 WLR 753, C.A. There is, indeed, express provision to this effect in the Act of 1971, Section 33(2). But, even without this guidance, I would conclude that it was wrong in principal that a man could rely on his own unlawful act to secure an advantage which could have been obtained if he had acted lawfully."

27. In relation to the wife's alternative claim that jurisdiction rested on her English domicile at the date of the presentation of her petition the judge found that:-

i) the wife had abandoned her domicile of origin in the summer of 1999 and had remained in England with the intention of making England her exclusive permanent home.

ii) The matrimonial home in Kingston was her only home, since the home she had owned in Port Harcourt had effectively been made over to her brother.

iii) She owned three investment properties in London. Her children were all in this jurisdiction with the advantage of indefinite leave to remain. She had made her own attempts, albeit ineffective, to obtain permanent leave in 1998, 1999 and 2000.

iv) Everything pointed to her having acquired an English domicile of choice about a year before the presentation of her petition. The court therefore clearly had jurisdiction to entertain her petition, unless as a matter of law her immigration status operated to prevent her acquiring that domicile.

28. That seemingly was the effect of the decision of Sir George Baker P in Puttick v A.G. (1980) Fam 1. The President had refused relief to a notorious German criminal, named Astrid Proll, on the ground that since she was a criminal on the run who would have moved on at the first signs of pursuit by the German police, she lacked the necessary animus manendi. However, as a further ground for his refusal, he approved the passage in the 9^th Edition of Dicey & Dicey Morris, The Conflict of Laws, (9^th Ed. 1973 p96) :-

"It has been held a domicile of choice cannot be acquired by illegal residents. The reason for this rule is that the court cannot allow a person to acquire a domicile in defiance of the law which that court itself administers. Thus a person who is illegally resident in (for example) South Africa would not be regarded by the courts of that country as domiciled there. In the same way it is submitted that a person who is illegally resident in this country could not thereby acquire an English domicile of choice."

29. The President added that the authorities cited in supported of that proposition were all Dominion cases and none had been produced to him. Additionally the President exercised his discretion against the grant of the declaration sought on the ground of the applicant's fraud and perjury. He relied on the principal that an individual may not obtain an advantage by relying on his own criminal conduct.
30. That being the only relevant authority in this jurisdiction, Hughes J reviewed the Dominion decisions cited by Dicey. He found them to be conflicting and preferred to follow the Canadian case of Jablonowski v Jablonowski [1972] 28 DLR [3d] 440 in which, in the context of divorce proceedings, jurisdiction founded on domicile was upheld, despite the fact that the petitioner had entered Canada unlawfully and remained there illegally. Hughes J rejected a line of contrary authority established by a number of decisions in Australia and Rhodesia. He found support for his conclusion in the precarious residence cases in this jurisdiction. He concluded that Dicey's rule must rest on public policy that a man may not benefit from his criminal conduct. However he pointed out that domicile regulated wide areas beside the divorce jurisdiction and thus was capable of operating as much to the disadvantage of the propositus as to his advantage. Thus, finding that domicile is a neutral rule of law to determine the system of personal law with which the individual has the appropriate connection, he concluded that the rule of public policy could not be consistently applied.
31. Finally Hughes J observed that particular difficulty would follow from the application of the public policy rule in those cases where an individual's residence fluctuated between lawful and unlawful as one permit expired before the issue of a fresh permit.
32. In paragraph 75 of his judgment Hughes J therefore concluded:-

"However that may be, the general considerations set out above lead me to conclude that the decision in Jablonowski v Jablonowski is to be preferred to those in Solomon v Solomon and Smith v Smith. It follow that I hold that (the wife) was, on 17^th July 2000, domiciled in England and Wales."

33. In relation to the wife's attempted reliance on the husband's habitual residence in this jurisdiction in the year preceding 17^th July 2000, the judge found that the husband had spent, at most, only forty-seven days out of the relevant 365 in England. He compared that tally with the 161 days that the wife could count in Ikimi v Ikimi [2001] 3 FLR 672 and concluded:-

"The question whether the habitual residence is established is plainly not simply a matter of counting days, but rather of evaluating the nature and extent of the residence. It seems to me, however, that I am constrained by that decision, and by the clear views of both Lord Justices that habitual residence was only barely established in that case, to reach the conclusion that stays totalling not quite fifty days in a twelve month period (or a seventh of the total year) cannot be enough to reach beyond the token level to what is needed to establish that the husband was habitually resident in England and Wales."

The Appeal

34. At the hearing of this Appeal Mr Howard QC strongly attacked the judge's reasoning and conclusion on the issue of domicile, the sole ground on which he had found jurisdiction. Mr Howard admitted with considerable force that the judgment in Jablonowski is weakly reasoned and that the dominion cases, viewed as a whole, clearly support Dicey's proposition. That proposition has stood through a succession of editions and was, he submitted, rightly preferred by Sir George Baker P to the statement of the less absolute proposition in the 13^th Edition of Rayden to this effect:-

"Illegal entry and residence would clearly make the court hostile to an assertion that the illegal immigrant had thereby acquired a domicile of choice, but the court might take a different view, for example, where the time factor since the entry was considerable, or where possibly the immigrant genuinely did not appreciate that his entry was illegal."

In the footnote to that passage the author cites the stronger proposition in Dicey's 9^th Edition and continues, "there may be cases where there is no avowed 'defiance'," and, as suggested in the text, the passage of time may prevail over the factor of the original illegal entry. Other matters may also arise…"

35. Mr Howard pointed out that, in reaction to the decision in Puttick, the current 17^th Edition of Rayden has moved closer to Dicey, thus:-

"Illegal entry and residence would clearly make the court hostile to an assertion that the illegal immigrant had thereby acquired a domicile of choice: indeed it has been authoritatively stated that it is wrong in principal that a man could rely on his own unlawful act to secure an advantage which would have been obtained if he had acted lawfully."

In the footnotes the author refers to the speech of Lord Scarman in re: Shah and the earlier authorities there cited.

36. At a relatively developed stage of Mr Umezuruike's submissions in response we decided to adjourn the Appeal, as recorded above, to enable the Attorney General to assist the court with submissions on a range of issues that clearly went well beyond those directly affecting the parties. In the event the responsibility has been discharged by the Queen's Proctor, who has instructed Mr Michael Nicholls. At the adjourned hearing Mr Umezuruike concluded his submissions, Mr Nicholls assisted us with an erudite skeleton which he developed in his oral submissions and Mr Howard replied, particularly on the two powerful arguments that had emerged from the respondent's notice.

Conclusions: The Wife's Habitual Residence

37. I will consider the issues raised by this Appeal in the order that they are set out in paragraph 22 above. There could hardly be a more authoritative statement of the law than that of Lord Scarman in Shah cited above. But in the context of the present Appeal upon what does the statement rest? Is it upon statutory construction or is it upon public policy? In other words is Section 5(2) to be construed as though it read: "(B) was lawfully habitually resident ." or is habitual residence denied upon the public policy rule that a man may not benefit from his criminal conduct. I conclude that it rests upon the public policy rule. That is Mr Nicholls's submission, and, although there are in the authorities statements supporting each of the two propositions, I see no reason to reject Mr Nicholls' submission in the context of jurisdictional qualifications for divorce. The cases preceding Shah were in the main immigration cases where the argument for basing the outcome on statutory construction was stronger. Indeed the parliamentary intention was put beyond doubt by Section 33 (2) of the Immigration Act [1971] which provides:-

"It is hereby declared that, except as otherwise provided in this Act, a person is not to be treated for the purposes of any provisions of this Act as ordinary resident in the United Kingdom or in any of the Islands at a time when he is there in breach of the Immigrations laws."

38. So the essential question, not considered by Hughes J, becomes: does the rule of public policy stated by Lord Scarman some twenty years ago require recasting following the advent of the Human Rights Act 1998.
39. The following facts and circumstances of this case, in my judgment, provide the answer.

(i) The wife was not originally an illegal immigrant. She became an overstayer. Her illegality is the product partly of the husband's conduct or design and partly as the result of her almost childish irresponsibility.

(ii) Following what maybe the husband's desertion in late 1988 or early 1999 London has been her only home. Apart from holidays and study trips she has lived nowhere else since at least 1993. Her children are all here, as is the bulk of her husband's fortune.

(iii) Although she has access to the customary courts in Nigeria her future financial independence can only be established by the courts of this jurisdiction. As Hughes J held in his judgment of the 14^th March 2002:-

"For these reasons it is quite clear to me that England is the appropriate forum and indeed the only realistic forum for any financial proceedings."

The customary court in Nigeria has no jurisdiction to make ancillary relief orders.

(iv) The court's primary jurisdiction to determine financial rights and responsibilities arises on or after the pronouncement of the divorce. A right to apply under Part III of the Matrimonial and Family Proceedings Act [1994] is not comparable because it is subject to a permission filter. Furthermore the court's jurisdiction would also be open to challenge.

40. In all those circumstances I conclude that the wife's Article 6 rights are engaged. The right of access to the courts is not expressly guaranteed by Article 6(1) of the ECHR but, unsurprisingly, decisions of the Strasbourg Court have made it plain that denial of access to the national courts may amount to a breach of Article 6. Mr Howard, and indeed Mr Nicholls, emphasised the right of the State to impose conditions and limitations on the right of access. But here we consider not a statutory restriction of obvious legitimacy but a rule of public policy which, absolutely applied, would deny the wife access to the divorce court with which she has the closest connection, and after the rejection of a stay application, in the course of which considerations of fairness and convenience were fully canvassed. This case has many unusual features which make it most unsuitable for the formulation of any general principal or rule. But in circumstances where:-

(a) the husband invited the wife to petition in London

(b) the husband in his pleadings prior to March 2002 admitted the court's jurisdiction

(c) there have been extensive proceedings under Part IV of the Family Law Act, in which the husband has established his right to the continuing use of the formal matrimonial home.

(d) the ancillary relief proceedings are well under way with evidence not only from the parties but also from the trustees of the relevant foreign trusts:

a rule of public policy that terminated proceedings so far advanced would not only be perverse but incompatible with the wife's rights under Article 6(1).

41. Accordingly I would reverse Hughes J's refusal of jurisdiction advanced on the grounds of the wife's habitual residence. I differ from him on a ground that I cannot believe to have been developed before him as it has been developed before us.

The Wife's Domicile

42. I would uphold the decision of Hughes J, although for reasons which reflect the much fuller argument which we have received on this difficult question. Although the question is difficult it is one of limited significance, given pressures to agree jurisdictional concepts that will enjoy wide recognition internationally. This pressure diminishes the significance of the concept of domicile and enhances the significance of the concept of habitual residence. This factor may contribute to explaining why the impact of an illegal presence on an asserted domicile has been little considered in this jurisdiction or elsewhere in recent years.
43. However we are indebted to Mr Nicholls' research which has unearthed academic writing and authority not available to Hughes J. First the decision in Puttick v Attorney General seemingly stimulated some degree of academic interest which has not been sustained in the decades that have followed. Mr Nicholls has retrieved an article published in Volume 33 of the International and Comparative Law Quarterly (1884) entitled 'Illegal Residence and the Acquisition of a Domicile of Choice by M. P. Pilkington (lecturer in law University of Leeds.) In a scholarly review of some thirty-seven page length the author considers the relevant principles and the relevant authorities. She makes it plain that her preference is for Rayden's formulation of the proposition rather than Dicey's. Her position and her conclusion, drawn from her review of the principles and the authorities, is succinctly summarised in these final paragraphs as follows:-

"V CONCLUSIONS

As at present formulated, the illegal residence rule may work considerable hardship by separating an individual from the law with which he is in fact most closely connected and which he expects to govern his personal affairs. It is submitted that the rule is essentially one of public policy and forms no part of the traditional criteria for the establishment of a domicile of choice. However, the illegal residence rule has been cast in its present form because in the persuasive authorities upon which it has been based²³⁹ there has been a failure to distinguish between statutory and common law domicile and between immigration matters which involve the public domain and matters resting upon domicile which involve private right. Equally persuasive authority in which the distinction has been made and the domicile established²⁴⁰ has been set aside. As a result a hard and fast rule which operates perfectly to give effect to the public interest in matters of political right has been transferred to the field of private right where it would normally be inapplicable. If the present rule – that illegal residence automatically vitiates domicile – were abandoned and the general principle of public policy upon which it is founded were allowed to operate in the normal way, as a matter of discretion, the public interest could be adequately protected without denying the rights and expectations of the individual concerning the application of his personal law. This would also be analogous to the approach of the English courts to limitations upon status imposed by a foreign domiciliary law, namely to deny the restriction as a matter of public policy but otherwise to apply the domiciliary law. Thus status would be both granted and refused recognition by an English court on grounds which are clearly seen to express public policy and the public interest.

It is hoped that in the future the illegal residence rule laid down in Dicey and Morris will not be applied to deny the acquisition of a domicile of choice without full consideration of the principle and authorities upon which it rests.

^239. See the authorities cited by Pollak, op.cit. supra n.28, at p 20, n. 139, and Dicey and Morris, op. cit. supra n.1. at p.111, n.98.

^240. Abelheim v. Abelheim [1918] S R. 85; Jablonowski v Jablonowski (1972) 28 D.L.R. (3d) 440. Lim v Lim [1973] V.R. 370 supports the view that a finding of domicile in a matrimonial issue may not affect the question of immigration. Plyler v Doe (1983) 72 L.Ed. 2d 786, 806, n.22."

44. Second Mr Nicholls has drawn attention to the Australian case of Bashir v Bashir, a decision of Kay J sitting in the Family Court of Australia at Melbourne on 1^st February 1995. (The judgment was not available to Mr Nicholls on 22^nd December but was subsequently supplied by Kay J. Supplemental submissions were invited and we have all considered further submissions on the judgement from Mr Howard.) In response to the respondent's challenge that the petitioner's immigration status in Australia was either doubtful or tainted Kay J stated:-

"There is a significant line of authority that one can obtain a domicile of choice even as an illegal immigrant (see Lim v Lim & Titcumb [1973] VR 370, Salacup v Salacup [1993] FLC 92-431, in re: Marriage of Dick [1993] 15 CAL.APP. 4^th 44, 18 CAL.RPTR.2d743."

Although Mr Nicholls comments that the decisions in Lim v Lim and Salacup v Salacup involved persons whose presence at the material time was lawful, there can be no doubt that Kay J does not consider Dicey's absolute proposition to run in his jurisdiction.

45. This additional material, not before Hughes J, fully supports his conclusion. My own view is that the imperative to prevent the acquisition by illegal conduct of what might be described as public law benefits (such as residence, income support, income-based job seekers allowance, housing benefit, council tax benefit, housing assistance) has driven, unnecessarily, the adoption of an absolute rule which in the context of private rights is hard to understand or justify. Absolute rules have little place in family law. This Appeal permits the restoration of the Rayden formulation which, in the context of the court's jurisdiction to entertain a petition for divorce or judicial separation, allows the court a margin of discretion in determining whether or not an element of illegality tainting the entry or stay within the jurisdiction of either the petitioner or the respondent precludes the acquisition of a domicile of choice.

The Husband's Habitual Residence

46. Mr Umezuruike mounts a powerful submission in Section 6 of his skeleton argument. He cites the judges conclusion at Paragraph 78 of his judgment:-

"I have no doubt that the husband's residence in England and Wales had been for years, and remained in 1999 – 2000, part of the regular order of his life. It was part of his routine."

In considering the case of Ikimi v Ikimi Mr Umezuruike stresses that the husband on each occasion he entered the United Kingdom during the relevant twelve month period sought leave to enter on the basis of indefinite leave. In his evidence in the Part IV proceedings he said "I do come to England as often as I can, either on official business as a Senator or on private visits to see my family, the majority of whom are studying here." Further in the financial proceedings he disclosed an earned income in this jurisdiction of £45,000 a year, whilst his Nigerian income as a Senator was but £1,636 per year. His disclosure demonstrated that he operated his English bank accounts throughout the period. His sixth wife and their children lived exclusively in a house provided by him in London. Although the husband had only forty-seven days in totality within the relevant twelve months he had made nine arrivals within the jurisdiction. That indicated that his affairs and interests within this jurisdiction necessitated a visit approximately every six weeks. In summary Mr Umezuruike submitted that, whilst Mrs Ikimi could count many more days in England, her connections were much weaker than those of the husband in the present Appeal. The judge insufficiently focused on the quality of the husband's residence. That quality could be compared with the quality of residence of a serving officer whose commission required him to spend most of the year abroad. Here was a clear case of continuous habitual residence in two jurisdictions at the same time.

47. I fully accept Mr Umezuruike's submission that the decision in this case did not depend on the counting of days. Nor would it be right to interpret the decision of this court in Ikimi v Ikimi as an indication that, because the wife had only just sufficient foundation for jurisdiction, a party with less than 161 days in total, or substantially less than 161 days, necessarily fails. The appraisal of Mrs Ikimi's case as just sufficient was an appraisal of all the relevant factors, in one of which she was stronger than Mr Mark (number of days), in others of which she was significantly weaker than Mr Mark. In counting the number of days all that is to be extracted from Ikimi is that the time spent in the jurisdiction, regarding both the totality of the days and the number of the visits, must earn the description 'appreciable'.
48. A comparative glance at authority determining a man's principal or main residence is helpful. How much time is spent at each of two or more residences is of course highly relevant but not conclusive: see Frost (Inspector of Taxes) v Feltham (1981) 1W.L.R.452. In that case Nourse J instanced the burdens of office that at times prevented Lord Eldon from spending more than three weeks or so a year at Encombe. Nourse J continued:

"True it was that Lord Eldon also had a good house in Hamilton Place, but it could not really have been suggested that he did not use Encombe as his principal or more important residence."

49. That said I am not persuaded that Mr Umezuruike has demonstrated any misdirection or error of law in the judges' approach. Had I been the trial judge I might have reached the opposite conclusion in what was a nicely balanced case but Hughes J reached his conclusion having heard the evidence of the parties and adopting the correct approach. Accordingly I would not interfere with his conclusion on this issue and would reject the argument advanced in section 6 of the respondent's skeleton of 9^th September 2003.
50. My overall conclusion therefore is that this Appeal must be dismissed.

Lord Justice Waller:-

Introduction

51. This appeal is concerned with a point of some importance. Section 5(2) of the Domicile and Matrimonial Proceedings Act 1973 at the time relevant to the proceedings with which this appeal is concerned provided:-

“(2) The court shall have jurisdiction to entertain proceedings for divorce or judicial separation if (and only if) either of the parties to the marriage--

(a) is domiciled in England and Wales on the date when the proceedings are begun; or

(b) was habitually resident in England and Wales throughout the period of one year ending with that date.”

52. That Section has been amended with effect from 1^st March 2001 to read as follows:-

"(2) The court shall have jurisdiction to entertain proceedings for divorce or judicial separation if (and only if) –

(a) the court has jurisdiction under the Council Regulation; or

(b) no court of a Contracting State has jurisdiction under the Council Regulation and either of the parties to the marriage is domiciled in England and Wales on the date when the proceedings are begun."

53. Article 2 of the council regulation provides as follows:-

"1. In matters relating to divorce, legal separation or marriage annulment, jurisdiction shall lie with the courts of the Member State:-

"(a) in whose territory:

the spouses are habitually resident, or

the spouses were last habitually resident, insofar as one of them still resides there, or

the respondent is habitually resident, or

in the event of a joint application, either of the spouses is habitually resident, or

the applicant is habitually resident if he or she resided there for at least a year immediately before the application was made, or

the applicant is habitually resident if he or she resided there for at least six months immediately before the application was made and is either a national of the Member State in question or, in the case of the United Kingdom and Ireland, has his "domicile" there:

(b) of the nationality of both spouses or, in the case of the United Kingdom and Ireland, or the "domicile" of both spouses.

2. For the purpose of this Regulation, "domicile" shall have the same meaning as it has under the legal systems of the United Kingdom and Ireland."

54. The important question raised is what is the relevance of the fact that the claimant can only rely on a period of illegal residence for establishing either her habitual residence or a domicile of choice? Is there an absolute rule either by a process of construction of the relevant provisions or by virtue of a rule of public policy to the effect that a person seeking access to the Family Court, cannot establish jurisdiction by reference to a period of illegal residence?
55. Hughes J has held that habitually resident means "lawfully" habitually resident, but that a domicile of choice can be acquired although a period of "unlawful residence" is relied on.
56. My first reaction was to doubt whether Hughes J could be right in drawing a distinction between the two concepts, but it is obvious why Hughes J sought to reach the result he did. What is under consideration is whether the court has jurisdiction in family proceedings. It is a matter of some anxiety if the family court had as an absolute rule that there is no jurisdiction in any case where reliance was being placed on a period of illegal residence. Where the person had chosen to be in this country, was married here, had all their assets here, and had what in normal parlance could be described as their home with a family here, it would seem at the least to be important. Where, as in many cases, the culpability for their residence being illegal was minimal, the more so. Even if Hughes J had wished to construe habitual residence as including unlawful residence, he felt constrained by the dictum of Lord Scarman quoted by Thorpe LJ from Shah, to reach the contrary view. He thought he was not so constrained when dealing with domicile of choice and felt able to follow the Canadian authority Jablonowski. His conclusions are stated in paras 72-74 as follows:-

"That intention and residence are matters of fact is, however, just as true when the residence is unlawful as when it is merely precarious. It also seems to me that an intention to remain may genuinely and honestly be held even if the residence is illegal and even if dishonesty has been displayed in the dealings with the immigration authorities, as it had been by Mr Smith in the Rhodesian case. If the suggested rule exists, it must be one based upon public policy and be founded, as Dicey assumes, on the general principle that a person cannot be permitted to acquire a benefit from his own criminal conduct.

That such a principle exists is not in doubt. It underlay the decision in AG v Puttick. It may also be the correct rationalisation that the rule in ex parte Shah and supply the answer to the question as to the extent of the rule, which I have earlier left open. However that may be, 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 to his affairs. Although it is a test for jurisdiction, it is also the criterion for choice of law. It governs, inter alia, capacity to marry, the legitimacy of children, and succession after death to moveable property and it is one of the tests of the validity of a Will. To the extent that it is a test for jurisdiction, it may as well be to the disadvantage as to the advantage of the propositus. An estranged and hostile spouse, a dependant claiming provision under the Inheritance (Provision for Family and Dependants) Act, a relative claiming succession to moveables and a child asserting the validity of his parents' marriage are just some of the people who may propound a person's domicile. Yet one cannot in English law have more than one domicile nor a domicile for some purposes and not for others. The application to domicile of the rule of public policy is not consistent with the neutral nature of the concept. There must be a very large number of extremely long standing but unlawful residents in this and other countries whose only real links are with their adopted country and whose personal affairs should properly be governed by the laws of that country, whether to their advantage or disadvantage.

Additionally, special difficulty would be created by the suggested rule where a person's residence was at times lawful and at others illegal, a common enough situation where leave to remain is granted for a limited period and requires renewal or fresh application from time to time. In Lim v Lim [1973] VR 370, the Malaysian respondent had been resident in Australia for more than nine years under a series of permits, but there had been gaps between permits, most short but the last one 8 months long, and during those gaps his residence had been unlawful. The last permit had been granted just 3 weeks before the critical date. Distinguishing Solomon v Solomon, Kaye J held him to have a domicile of choice in Australia and applied the precarious residence cases. It is clear however, that the respondent had resided in Australia with the necessary intention for the whole of the nine years. It would, as it seems to me, be inconsistent with the nature of domicile if the law were to be that his domicile switched from Australia to Malaysia and back again each time his permit ran out and until a fresh one was granted."

57. Those views reflect the concern that there must be a very large number of extremely longstanding but unlawful residents in this and other countries whose only real links are with their adopted country and whose personal affairs should properly be governed by the laws of that country, whether to their advantage or their disadvantage.
58. As is apparent, I share the anxieties of the judge. But those anxieties lead me to explore first whether the dictum of Lord Scarman establishes that in Section 5(2) habitual residence has to be lawful residence. So far as illegality is concerned it might affect the position in different ways. The question could simply be one of construction – is it implicit that the residence must be legal? In the alternative albeit the construction does not demand legal residence, can a person having regard to public policy establish any residence of his or her own if the only residence relied on is illegal?
59. The distinction between the questions being one of construction as opposed to being a constraint by public policy may itself be of practical importance. There would for example appear to be no principle of public policy which should prevent a person who has acted quite lawfully relying on the habitual residence of the other party even if that habitual residence has been unlawful. But if habitual residence was to be construed as lawful residence, the opposing party's illegal residence could not be relied on.
60. It is perhaps also right to emphasise that if a claimant's residence is unlawful that could well not be the fault of the claimant. Take a claimant wife who believes that her husband has done all that is necessary to make residence lawful, but on commencement of proceedings has the point taken by the husband that he now resides somewhere else, and in fact her residence is unlawful. Public policy should (one might think) hardly insist that a wife who has done nothing wrong except rely on her husband, should be unable to bring proceedings in the English courts based on her habitual residence because through no fault of hers her residence has been unlawful. The construction of habitual residence as "lawful" residence would however dictate that result.
61. I agree with Thorpe LJ that the dictum of Lord Scarman in Shah does point in the direction of "the rule of being unable to rely on illegal residence" (if there be one) not being a matter of construction.
62. In Shah the issue was whether the claimant could establish a right to a mandatory award for higher education. Lord Scarman concluded, "it was wrong in principle that a man could rely on his own unlawful act to secure an advantage which could have been obtained if he had acted lawfully" [344a]. Ordinary residence was a requirement for the obtaining of a benefit. It is in that context that Lord Scarman stated that "If a man's presence in a particular place or country is unlawful, e.g. in breach of the immigration laws, he cannot rely on his unlawful residence as constituting ordinary residence (even though in a tax case the Crown may do so)." [Page 343h].
63. It seems clear that Lord Scarman is adopting a principle of public policy preventing in effect "proof" of residence rather than suggesting that as a matter of construction "ordinary residence" must be construed as "ordinary lawful residence".
64. If construction does not supply the answer, the next stage is to try and identify what principle of public policy is being applied. The Shah case was concerned with the obtaining of benefits and not with whether a court had jurisdiction. It is right to say straight away that although Lord Scarman was not concerned with the meaning of the words in the jurisdiction context, reliance was placed by him on the fact that the same or similar words were used in that context. Indeed jurisdiction in the family law context is expressly relied on by him in reaching the conclusion that the words must bear their ordinary meaning [see e.g. page 340g-h]. Furthermore he was plainly suggesting that the words "ordinary resident" had a well-known meaning in the various places the words were used in different contexts. But I suggest that in saying that he was dealing with pure construction and not with the public policy point.
65. Shah was not actually concerned with the problem with which we are wrestling. Where jurisdiction is concerned it seems to me far from clear that a claimant is seeking the type of benefit to which the principle of public policy being relied on by Lord Scarman is applicable. [In the context of domicile of choice I will come back to the Article quoted by Thorpe LJ by M P Pilkington, but that article supports this view.] I suggest that the public policy being applied is what used to be summarised by the phrase "ex turpi causa non oritur actio", or the connected principle that no party is permitted to found rights upon that party's deliberate commission of a crime. The concept is one of a claimant seeking to found a claim whether by reference to a cause of action or a claim to a benefit in reliance on dishonesty or a crime. It seems to me that a petitioner who is asserting that a court has jurisdiction to decide the issues that arise between the petitioner and the respondent, (a jurisdiction it may exercise either to the petitioner's advantage or disadvantage), is not claiming a right or benefit in the sense those words are being used in the principles of public policy to which I have referred.
66. Where a party is seeking to establish an entitlement to a benefit or damages flowing from a cause of action, I suggest that the court might take the view that that party would not be entitled to rely on another party's illegal conduct in order to obtain that benefit anymore than their own. But I equally suggest that the court would not feel that there should be any reason why a party might not rely on the illegal residence of the other, in order to found jurisdiction particularly where there was no culpability in the party bringing the proceedings. Furthermore I suggest that if no moral turpitude was involved in a claimant's conduct, ones instinct would be that there should be no reason why a claimant should not be entitled to rely on their own residence of 12 months albeit technically that residence was illegal.
67. There is another factor as regards jurisdiction. Third parties such as children may be affected if the court declines jurisdiction on the ground that one party is relying on their own illegal residence. That again in my view points to the fact that when jurisdiction is being invoked, it is not for the benefit of the petitioner alone, and thus does not fit within the public policy principle, which is being invoked.
68. I suggest accordingly that a person who is seeking to invoke the jurisdiction of the court is not seeking a benefit or an advantage in reliance on their unlawful act within the relevant principle of public policy. It is of some interest that "residence" is a factor in providing jurisdiction in civil proceedings. CPR 2.4 defines a defendant's home court by reference to where a defendant resides. Would this mean "lawfully resides"? I doubt very much whether it would ever occur to anyone to so argue, and I doubt whether it would occur to anyone to suggest that residence could not be established if what was being relied on was unlawful in some way.
69. As will by now be clear I have a strong inclination to the view that the obiter dictum of Lord Scarman in Shah should not be read so as to preclude in absolute terms reliance on residence which is illegal. I would have been inclined so to hold even in the absence of the Human Rights Act. But there is no doubt that that Act gives a further basis on which the dictum can now be reviewed.
70. Article 6 does not prima facie give a right of access to the courts. However the Strasbourg jurisprudence has implied such a right. In Golder v UK (1975) 1 EHHR 36, the applicant was refused permission to write to a solicitor from a prison in connection with a libel of a prison officer. It was ruled that Article 6 extends beyond the conduct of proceedings to include the right to initiate them in the first place. The court has ruled that access to the court should be factual rather than theoretical. In Airey v Ireland (1979) 2 EHRR 305 the applicant was refused legal aid for judicial separation proceedings. The court ruled that due to the nature of the proceedings the applicant required legal representation, and that refusal of legal aid was a breach of Article 6.
71. It seems to me that the application of a blanket rule that reliance on one's own illegal residence cannot be allowed in order to establish habitual residence would be at risk of infringing Article 6. Certainly if as in the instant case where for the reasons given by Thorpe LJ, the only realistic court so far as the claimant is concerned is the English court, there must be that risk.
72. I should stress, that I am not saying that the illegal conduct of a petitioner will be totally irrelevant in the consideration of whether habitual residence has been established. It is not just residence but habitual residence that has to be shown. The question of habitual residence is a factual one. The illegality of a person's residence may be relevant to considering that factual question. Thus someone who has not got a permanent home, is evading the immigration authorities, or someone who is under an order for deportation will be unlikely to be able to establish habitual residence. But at the other end of the spectrum where someone has a permanent home, married here and has simply overlooked obtaining an extension of their leave to be here, the answer will be that they will be able to establish habitual residence.
73. My view is in agreement with Thorpe LJ that particularly in the context of Article 6, there should not be an absolute rule by reference to public policy that a person cannot establish habitual residence if what is relied is a period of their own illegal residence. The illegality and the state of mind of the person in relation to that illegality, should be part of the factual investigation as to whether habitual residence has been established.
74. In agreement with Thorpe LJ I would hold that Mrs M, despite her illegal residence, should be held to have been habitually resident for a period of 12 months. The judge if unconstrained by Shah would have found her habitually resident for the requisite period. I would make that finding and allow the cross-appeal in relation to that aspect.
75. I now turn to domicile of choice. There are certain distinctions, which I would point up between the concepts habitual residence and domicile of choice. First as recognised by Hughes J "unity of domicile" entails accepting that the obtaining of a domicile of choice is of importance not just in the context of jurisdiction in the Family law context. It is not possible for a person to have a domicile of choice for one purpose. It follows that Article 6 can be of no assistance. But the fact that domicile of choice affects the choice of law in other areas helps, as the judge found, the argument that it is a criterion for a choice of law both to the advantage and disadvantage of the person acquiring that domicile. Second whereas in the habitual residence context, a petitioner may on any view (as I see it) rely on the "illegal" residence of the respondent without falling foul of the public policy rule, the position is not so straightforward in the domicile context. Could a petitioner establish the respondent's domicile of choice in reliance on the illegal residence of the respondent plus the intention to reside, or would public policy say such reliance should not be allowed? Consideration of that question throws some light in my view on the proper approach to this aspect.
76. The public policy principle is primarily not to allow a person to rely on his own wrong to gain a benefit. But it could not be right that the court should hold that the respondent has obtained a domicile of choice when that has been asserted by the innocent petitioner, but not when the respondent himself seeks so to assert. That would lead to disunity of domicile. If to accommodate that point, the principle of public policy had to go beyond reliance on the illegal act of the petitioner, and hold that if the petitioner relied on the illegal residence of the respondent such reliance cannot be allowed, even the tax authorities logically would seem to run into difficulties in establishing a domicile of choice by reference to illegal residence.
77. The judge pointed out that domicile of choice should be a neutral concept, which connects a person with a system of law. As with habitual residence, the obtaining of a domicile of choice which may affect many persons other than the person obtaining the domicile, cannot accurately be characterised as obtaining a benefit or right in the sense those words are used in the principle of public policy which is being brought into play.
78. The judge reviewed the authorities both from this jurisdiction and from the Commonwealth. So far as Puttick v Attorney General [1980] Fam 1 is concerned, the judge was correct in concluding that the view of the President relied on by Mr Howard QC for the appellant was not necessary for the decision. The circumstances of that case would have lead to the same result even without the dictum. But the President in that case did quote with approval a statement from Dicey & Morris 9^th Edition in relation to which further editions of that comprehensive and authoritative work have cast no doubt. The note in the most recent 13^th edition cites the Commonwealth cases, referred to but not followed by the judge, with apparent approval, and simply notes for comparison Jablonowski v Jablonowski (1972) 28 DLR (3d) 440, the decision which the judge has chosen to follow. Mr Howard is right when he criticises Jablonowski in saying there is little reasoning to justify the approach taken in that case.
79. The note also however says "see generally Pilkington (1984) 33 I.C.LQ 885" the Article referred to by my lord. That Article puts the various authorities under a microscope. What the author seeks to demonstrate is that the Commonwealth authorities such as Smith v Smith (1962)(2)S.A.930 and Solomon v Solomon (1912) 29 WN(NSW) 68, where illegal residence has been held to deny domicile, are actually based on immigration cases. She argues that there should be borne in mind the clear distinction between a person seeking to obtain a benefit conferred by the State, including the status of citizenship (where the public policy principle of not being allowed to rely on one's own illegal conduct should apply with its full rigour), and domicile which is not a status or a benefit in the sense required for the application of the principle, but merely the means by which someone's status may be established, where to apply the principle of public policy may create serious injustice [see pages 908-910 in particular].
80. Thorpe LJ also cites a dictum from a decision of Kay J in Bashir v Bashir in the Family Court of Australia, in Melbourne which would support the view that in that jurisdiction the absolute rule to which Dicey & Morris seem still to adhere, would not apply in that jurisdiction.
81. In my view the acquisition of a domicile of choice should not be treated as the obtaining of a benefit by reference to which the public policy principle must be applied. Once again as with habitual residence, the conduct of the person including his attitude to the Immigration authorities may be a factor in considering whether the relevant intention as well as the relevant residence has been established.
82. I agree with the judge and Thorpe LJ that in the instant case Mrs M did acquire a domicile of choice in this country, and that the appeal from the judge on that aspect should be dismissed.
83. As regards the Husband's habitual residence, I agree with the judgment of Thorpe LJ and have nothing to add.

Lord Justice Latham

84. This appeal raises a difficult question as to the jurisdiction of the court in matrimonial proceedings which has surprisingly not been answered before. That question is whether a party to such proceedings can rely on a period of unlawful presence in this country to establish either a domicile of choice in England and Wales or habitual residence in England and Wales. The problem arises because the respondent sought to rely on both in order to found jurisdiction for her petition. She had been in the United Kingdom since April 1998 without leave, in other words she was an overstayer. The judge was not prepared to conclude that she had established by then a domicile of choice. He found that the relevant intention to remain did not arise until 1999 or 2000. It followed that she had to rely on presence here which amounted to a continuing offence under section 24 of the Immigration Act 1971. For the reasons given in the judgements of both Thorpe LJ and Waller LJ, it would be unfortunate if the courts of this country concluded that they had no jurisdiction to deal with the matrimonial affairs of those who, albeit here unlawfully, have made their life, and in particular their family life here. I can however, see considerable force in the argument that was expressed by Lord Scarman in R –v- Barnet LBC ex p Shah (1983) 2AC at page 343h to 344b where he said:

"If a man's presence in a particular place or country is unlawful, e.g. in breach of the immigration laws, he cannot rely on his unlawful residence as constituting ordinary residence …. I would conclude that it was wrong in principle that a man could rely on his own unlawful act to secure an advantage which could have been obtained if he had acted lawfully,"

85. Like my Lords, I am uncomfortable with the solution reached by Hughes J. It seems to me that underlying the courts' approach to this problem is a question of public policy which is expressed in the dictum of Lord Scarman and should, logically, produce the same answer whether the concept being considered is domicile or habitual residence. The policy issue remains the same. Equally, I am not convinced that the issue of public policy, can be avoided by concluding that a person seeking to obtain matrimonial relief through our courts is not in some way seeking to obtain an advantage. Whilst it is true that the consequences of invoking this court's jurisdiction might be unwanted in the sense that the court could make adverse findings and adverse orders affecting the litigant, the presentation of a petition presupposes that the petitioner hopes, at the least, to obtain an advantage.
86. As far as "habitual residence" is concerned, the first question is one of pure construction. There is a significant line of authority to the effect that the court is entitled to insert the word "lawfully" into a statutory provision as Lord Denning said in In Re Abdul Manan [1971] 1 WLR 859 at page 861 c. And it is noteworthy that Lord Scarman in the passage to which I have already referred in Shah cites In Re Abdul Manan as authority for the first of the two propositions in that citation. There are, however, difficulties in that approach. As both Lord Denning and Lord Scarman acknowledged, the phrase "ordinarily resident", which was the phrase in question in both those cases, had a readily understood meaning which was applied in tax cases and upon which the Commissioners of Inland Revenue were entitled to rely, which was the meaning which Lord Scarman set out at page 343 (g):

""Ordinarily resident" refers to a mans abode in a particular place or country which he has adopted voluntarily and for settled purposes as part of the regular order of his life for the time being, whether of short or of long duration."

87. The word "lawfully" can only therefore be inserted by the courts in certain situations. This suggests that the question is not one of statutory construction, but one of public policy, as both Thorpe LJ and Waller LJ have concluded. I think that there is yet another reason for declining to construe the Act so as to insert the word "lawfully". The section in the Act with which we are concerned is intended to identify situations where the issues in dispute have a sufficient connection with this country that our courts can properly exercise the relevant jurisdiction. If it was only the unlawfulness of the residence which precluded a would be petitioner from being able to establish jurisdiction, the question would arise as to whether or not that would be a breach of Article 6 as being an unwarranted restriction on the right of access to the courts, and of Article 14 on the basis that it was discriminatory. The question would accordingly arise as to whether or not it was necessary to imply the word "lawfully" into the Act. That would be difficult to establish. It would be difficult to justify the exclusion on immigration control grounds: the unlawfulness of the petitioner's presence in this country would necessarily have been exposed for this issue to have arisen, and it would be for the Immigration Authorities to take what steps they considered appropriate.
88. The question would therefore be the same as the question posed if the issue is not one of construction but one of public policy. I have already expressed my doubts as to whether or not that issue can be resolved by concluding that a petitioner is not obtaining an advantage by invoking the jurisdiction of the court. But the nature of the advantage that the petitioner obtains needs to be analysed in order to determine whether the court should conclude that it would be offensive for the petitioner to be allowed to obtain that advantage. The essential advantage which the petitioner seeks to obtain is a resolution of the particular claims which he or she makes in the matrimonial proceedings. Apart from the use of the court's facilities, none of the advantages are benefits in money or kind which are sought from the State. The only exception would be the cost of providing legal representation at public expense in cases where Legal Aid was appropriate. But that is not a good reason for concluding that the courts jurisdiction is being abused. Any person in this country whether here lawfully or unlawfully, is entitled to access to the courts. The only question is whether there is jurisdiction over the particular dispute in question. It does not therefore seem to me that there are any proper grounds for concluding that the mere fact that a petitioner is relying on unlawful residence to establish habitual residence either deprives the court of jurisdiction, or requires the court to decline jurisdiction on the grounds of public policy. In my judgement, like Waller LJ, the question in each case would be whether or not the quality of the residence meets the requirements identified by Lord Scarman in relation to "ordinary residence". As has already been explained, there is no distinction to be drawn between the two adjectives "ordinary" and "habitual": see Ikimi –v- Ikimi [2001] 3FLR 672.
89. As I indicated earlier, I consider that it would be unfortunate if a different answer were given in the case of domicile. There is no doubt that what might be called the conventional view is that a domicile of choice cannot be acquired by illegal residence. This was so stated in the Edition of Dicey & Morris which was approved by Sir George Baker P in Puttick –v- Attorney General [1980] Fam 1 at page 19 and the current edition of Rayden which has been referred to by Thorpe LJ in paragraph 35 above. Both these statements of principle derive from the cases identified by Hughes J, and perhaps in particular the dictum of Sir Samuel Griffiths CJ in the Australian High Court in Ah Yin –v- Christie 4 CCR 1428 where at page 1431 he said:

"The acquisition of a domicile of choice by a person coming from abroad to any country depends then on the permission given by that country to enter it and make it his home."

90. In a nation of immigrants, it is perhaps not surprising that that view should have been taken. And indeed it reflects what underlies the concept namely that where a domicile of choice is concerned, the necessary intention is that the person should want to make the country in question his or her home. It seems to me, therefore, that there are stronger grounds for concluding that domicile does require the further element of lawfulness. And if I am correct as to the proper approach to "habitual residence", there will be no interference with the would be litigant's access to the courts. However, I am content to accept the analysis of both Thorpe LJ and Waller LJ, which has the merit of avoiding the dichotomy which I agree would be undesirable. The immigration status of the person should only be relevant to that inquiry in so far as it helps to answer the question of presence and intent.
91. I also agree with Thorpe LJ as to the appellant's habitual residence.
92. I therefore agree that the appeal be dismissed.
Order: Appeals dismissed; Appellant do pay Respondent's cost of the appeal, the Appellants application for leave to appeal to the House of Lords refused. (Order does not form part of the approved judgement)