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SET15.1 Definition of domicile
The generally accepted definition of domicile:- the place which a person regards as his / her permanent home and with which he / she has the closest ties.
In law nobody is without a domicile: every person has one (and only one) at any given time. Generally a person can only have a domicile within a territory subject to a single system of law. This means that generally a person cannot, for example, be domiciled in the United Kingdom, but can be domiciled in England and Wales, or in Scotland, or in Northern Ireland.
Domicile is relevant in assessing:
- polygamous / potentially polygamous marriages and divorces;
- applications for right of abode (Certificates of Entitlement) from children of polygamous / potentially polygamous marriages / divorces.
SET15.2 Domicile of origin
In law the domicile of origin is:- that which a person acquires by law at birth.
The acquisition of another domicile will always displace that of origin, but the domicile of origin will be revived if a domicile of choice is abandoned without another domicile of choice taking its place.
SET15.3 Domicile of children
Before 1 January 1974 a legitimate child's domicile changed automatically with that of the father and an illegitimate child's changed automatically with that of the mother.Since the Domicile and Matrimonial Proceedings Act 1973 came into effect on 1 January 1974 the following rules have applied to the domicile of children:
A legitimate child
Domicile changes automatically with that of the father until the child is 16 (or marries under the age of 16) unless:1. The child's parents are alive but living apart and either:
- the child's home is with the mother, and not with the father; or
- the child had at any time domicile by virtue of the point above and has not since had a home with the father.
If either above applies, the domicile of the child will be that of the mother (if dead, her place of domicile at death).
An illegitimate child
Domicile changes automatically with that of the mother until the child is 16 years old or marries under the age of 16.SET15.4 Domicile of married women
Before 1 January 1974 a married woman had the domicile of her husband and could not acquire a domicile independently of him so long as the marriage subsisted.The effect of the Domicile and Matrimonial Proceedings Act 1973 was to give married women the same capacity as anyone else of having an independent domicile (whether a domicile of origin or of choice) unless they acquire a new domicile of choice.
In the case of a marriage subsisting immediately before 1 January 1974, a wife retained the domicile which she had immediately before that date (that is, the domicile of her husband), unless it was demonstrated that she has acquired a domicile of choice. In such cases the facts to be taken into account in determining whether a domicile of choice was acquired, must have existed on or after 1 January 1974 or unless the marriage subsequently breaks down.
SET15.5 Domicile of choice
Persons capable of acquiring an independent domicile can acquire a domicile of choice to replace their domicile of origin. To do this they must reside in a place and form a clear and fixed intention of making their permanent home or indefinite residence there.Persons who have acquired a domicile of choice will revert automatically to the domicile of origin if they leave the place in question and intend to abandon their permanent home or residence there.
The crucial test to be applied in immigration cases is:
- whether a person has made the claimed domicile of choice his / her home with the intention of establishing a family there and / or remaining there indefinitely (unless something happens to cause a change of mind).
SET15.6 Assessing domicile
As every event in a person's life can be of relevance to the question of domicile, it is essential to obtain as much evidence and information as possible.Any declarations of intention to remain permanently, or to retire in a place, are important but should be viewed in the context of a person's actions to see whether the two are consistent.
In order to decide a person's intentions and, therefore, where that person was domiciled at the crucial time, the ECO will need to take into account some, if not all, of the following. However, no single factor is, of itself, proof of change:
- Nationality. (Nationality and domicile are two different concepts; domicile can be changed without changing nationality and vice versa).
- Statutory declarations. Did the person give a declaration as to where he / she intended to retire or live permanently when applying for British citizenship?
- Length of residence. Also visits if any to the country of origin and length of stay of such visits.
- Possession of property. The possession of a house or land is relevant. The purchase of burial ground is a particularly good indication of domicile.
- The nature and length of the person's employment in a country.
- Exercise of political rights. Is the person on the electoral roll and, if so, where and for how long?
- Residence of immediate family. Where does the person's family live? If a man has lived in the UK for many years and maintained a family in another country during that time, it will be more difficult to establish that he has abandoned his domicile in that other country. In such cases the ECO will need to consider whether there are any plans for other family members to go to the UK and whether any other relatives have settled there.
- Children's education. If the person has any children, where were they educated (or are being educated or will be educated)?
The circumstances of an individual case may suggest other factors to give consideration to in establishing domicile. It may be helpful to set out all the factors in a case as in the example below:
Factors suggesting Mr Siddique's domicile at time of his second marriage:
| FOR RETAINING DOMICILE OF ORIGIN (Pakistan) | FOR ACQUIRING DOMICILE OF CHOICE (United Kingdom) |
|---|---|
| At time of marriage Mr Siddique was still in Pakistan | Employment in the UK |
| Bank Account Pakistan | Bank Account in the UK |
| Family lived in Pakistan | Registered as an elector in the UK |
| At time of marriage Mr Siddique had spent only about 4 years in the UK | Mr Siddique's usual place of residence is the UK |
| Intended to end his days in Pakistan |
SET15.7 Burden of proof
The onus of proof is always on the party asserting that a change in domicile has taken place.If the ECO concludes that a polygamous marriage / an overseas divorce is not valid in the UK because one of the parties to that marriage / divorce had acquired a domicile of choice in a part of the UK at the crucial time, the ECO must have sufficient evidence to prove the case.
The degree of proof required to establish that a domicile of choice has displaced that of origin must be high - certainly more than a mere balance of probabilities. If it cannot be shown beyond reasonable doubt that a new domicile has been acquired, the domicile of origin continues.
In cases where the ECO claims that there has been a change from one domicile of choice to another, it will only be necessary to demonstrate on the balance of probabilities that a change has taken place, although the onus of proof will still be on the ECO to show the change.
The ECO should, however, be aware that even though a whole range of factors may be shown to prove that a change of domicile has occurred, a single piece of evidence may be enough to show that there has been no change of domicile, for example, a statement by the person concerned that he / she had no intention of making the place in question his / her permanent home.
SET15.8 Use of the domicile questionnaire
Domicile questionnaire II (a copy can be downloaded under 'Related documents' on the right of this page).The best way of trying to establish a person's domicile on a particular date is by interviewing the person concerned, preferably in conjunction with the use of a domicile questionnaire. This questionnaire for polygamous or potentially polygamous marriages can be amended as appropriate to make it relevant to, for example, a case involving an overseas divorce.
The use of an interview to complete the domicile questionnaire enables answers to be explored in more detail.
If a questionnaire is to have any evidential value, it is important that the ECO makes the applicant aware that the questions are being asked to establish domicile on a particular date (that is, not present domicile) and ensure the questionnaire is signed and dated.
SET15.9 Referral
If the ECO has difficulty in assessing a particular question of domicile which is a crucial factor in an entry clearance or Certificate of Entitlement application, the case may be referred to Passport and Documentary Services Group, Consular Directorate. The referral should clearly specify the point on which advice is being sought.http://www.ukba.homeoffice.gov.uk/policyandlaw/guidance/ecg/set/set15/#header1
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