Habitual Residence

From Max-EuP 2012

by Dietmar Baetge

1. Purposes

Habitual residence (résidence habituelle, gewöhnlicher Aufenthalt) is used in different areas, such as tax law, social security law and the law concerning foreign nationals. In private law habitual residence primarily serves two goals. In private international law (PIL) it is used as a connecting factor, designating the applicable law in a case which has a connection to a foreign country. In procedural law it forms a basis for venue and for international jurisdiction (jurisdiction (PIL)). In terms of legal policy, habitual residence is an alternative to both nationality and domicile. For a long time nationality was the predominant connecting factor in continental Europe. Increasingly, nationality is being replaced by habitual residence, the latter being more flexible and open to the needs of individuals. Moreover, habitual residence more often allows the application of a country’s own laws, thereby alleviating courts and authorities of the cumbersome task of having to deal with foreign law. Both habitual residence and domicile prefer a person’s spatial connection to a given legal order over the more formalistic bond often associated with nationality. In contrast to domicile, habitual residence is not encumbered by differing national meanings and is, therefore, better suited to the purposes of uniform law. As a result, over the past decades national as well as international legal documents have increasingly used the term ‘habitual residence’ as substitute for the once prevailing ‘domicile’.

2. Development and meaning

Habitual residence is the brainchild of the Hague Conference on PIL. Although the Hague Conference did not coin the term (which had been employed since the middle of the 19th century in the procedural codifications of some German territories), it has nevertheless contributed substantially towards establishing the concept in the international arena. Beginning with the early Conventions at the turn of the 19th century, the Hague Conference gradually shifted away from the principle of nationality and embraced habitual residence instead. In EU law, habitual residence is at the centre of the Brussels IIbis Regulation’s rules (Reg 2201/2003) on jurisdiction. In the Brussels I Regulation (Reg 44/ 2001), the courts have adjudicatory jurisdiction in matters relating to maintenance, inter alia, at the place where the maintenance creditor is habitually resident. Habitual residence is also of importance within the Rome II Regulation (Reg 864/2007) on non-contractual obligations. The Rome I Regulation (Reg 593/2008) on contractual obligations makes use of habitual residence as a connecting factor absent a choice of law agreement by the parties. Likewise the 1980 Vienna Sales Convention (CISG) refers to habitual residence where one party to the sales contract does not have a place of business.

Despite the growing importance of habitual residence, there is no legally binding definition on either the international or the European level. In an effort not to deprive the term of its flexibility, the Hague Conference, resisting some criticism from legal academics and practitioners, has persistently refused to further elaborate on the meaning of habitual residence in its conventions. In contrast, a number of recent national choice of law codifications do provide a definition for habitual residence, including the laws of Belgium, Bulgaria and Switzerland. Some of these definitions were consciously drafted with a view to a common European understanding of the term whereas the EU legislature, like the Hague Conference, has so far refrained from clarifying what is meant by habitual residence. The official report by Alegría Borrás Rodríguez on the Brussels IIbis Regulation’s predecessor, the Brussels II Regulation (Reg 1346/2000), refers to the definition developed by the ECJ for tax law and social security law purposes. Accordingly, habitual residence is ‘the place where the person has established, on a fixed basis, his permanent or habitual centre of interests, with all the relevant facts being taken into account for the purpose of determining such residence’. This interpretation is based on the notion of habitual residence being a person’s centre of living (centre effectif de la vie), a phrase coined by the Hague Conference in connection with the 1960 Convention on the protection of minors. Within Europe it has gained widespread acceptance.

3. Contents

The Council of Europe’s ‘Resolution on the standardisation of the legal concepts of ‘domicile’ and of ‘residence’ from 1972 gives an idea of how to determine habitual residence. According to this non-mandatory Resolution, a person’s residence shall be determined solely by ‘factual criteria’, excluding the fictitious elements that are a typical feature of the question of domicile. As a result, children’s’ habitual residence does not depend on that of their parents. Rather, children as well as other persons lacking full legal capacity have their own habitual residence, which may or may not coincide with that of their parents or guardians. Additionally, whether the residence was lawful is not important. A person may, therefore, be habitually resident in a country despite living there without permission (Mark v Mark [2006] 1 AC 98, 112 (HL)). This does not mean, as many commentators and courts suggest, that habitual residence is a mere ‘question of fact’. Rather, it is an indeterminate legal term that has to be established on the basis of the circumstances specific to each individual case.

In order to determine a person’s centre of life, his or her social bonds with a certain country or place must be taken into account. The grade or intensity of the connection has to be established by having regard to objective criteria derived from the person’s private and professional life. According to European case law these criteria include: the actual presence of the person concerned in the country; the duration, regularity, conditions and reasons for the stay; the person’s family and social relationships in that country; the availability of accommodation; the place and conditions of attendance at school; linguistic knowledge; the place where business is conducted and where property interests are situated; and administrative links to public authorities and social services (ECJ Case C-262/99 – Louloudakis [2001] ECR I-5547 para 55; ECJ Case C-523/07 – A [2009] ECR I-2805 para 39). Typically courts place great emphasis on the time elapsed since the person’s arrival in the country. In this vein, according to the Council of Europe Resolution, in determining whether a residence is ‘habitual’, account shall be taken of the ‘duration and the continuity’ of the residence. The case law of German and Austrian courts, especially, suggests that if the residence continues for at least six months it may generally be considered to be ‘habitual’. One has to be cautious, though, because the six month period constitutes a rule of thumb only, which may be rebutted if other criteria point in another direction. As has been asserted by English courts, the adjective ‘habitual’ indicates not so much a length of time as a certain quality.

Depending on the context and purpose, habitual residence may be interpreted differently and, thus, at least in marginal cases, may have different meanings. Such a purpose-driven or ‘functional’ test lies in the logic of habitual residence, whose primary goal as a connecting factor is to produce the best possible result in a given situation without sacrificing legal certainty. Although not generally accepted within Europe, the ‘functional’ test has been approved of by some jurisdictions, including England.

4. Specific questions

Usually, it is not difficult to determine a person’s habitual residence, although problems may occur in certain circumstances. These problems, however, do not diminish the value of habitual residence as a connecting factor in private international law or as a ground for adjudicatory jurisdiction.

It is an advantage of the habitual residence test that subjective elements are less important than they are in the law of domicile. Unlike domicile, persons lacking legal capacity can, nevertheless, acquire a habitual residence. It is not clear, however, what role is to be played by the ‘natural’ will to continue to stay in a given place (animus manendi) According to the German courts, a person can acquire habitual residence immediately upon arrival in a country if the person intends to establish his or her centre of living there (BGH 29 October 1980, BGHZ 78, 293). This view is not only in accordance with the ECJ jurisprudence on social security law, but is also enshrined in the statutes of some European countries. In England, courts have traditionally been reluctant to accept a person as becoming habitually resident there ‘in a single day’. Nevertheless, in a number of cases, the results reached by British courts are very similar to German case law.

In international child protection (child law (international)), habitual residence of an abducted child is determined in accordance with the general principles outlined above. Thus, the determination ultimately depends on where the abducted child has his or her centre of living. If the centre of living has changed to the country the child has been taken to, the child is now habitually resident in that country, notwithstanding the fact that one or both parental custodians did not approve of the child’s new residence. However, considering the uncertainties surrounding the situation of the child after the removal, the child cannot acquire habitual residence immediately after arrival. As long as the child has not been integrated into the social environment of the new country, the former habitual residence will typically persist.

Following the Council of Europe definition, the voluntary establishment of residence is not a precondition for the existence of habitual residence. This view is widely shared in European countries, with the notable exception of England, where the courts have deemed voluntariness essential. However, in practice differences are less severe than they may seem. A person that has been deported or imprisoned usually does not have social ties to his or her place of confinement which are close enough to qualify for habitual residence. The same holds true in the case of a person who must stay in a foreign hospital for a prolonged period after a car accident abroad. Only under exceptional circumstances, as, for instance, in case of an extended stay in an asylum or a sanatorium, does it seem conceivable that a person may develop socially meaningful connections to an abode that has been forced upon him or her.

There is no consensus as to whether a person can simultaneously have more than one habitual residence. For instance, during six months of the year a person may live in the northern European country A while living for the other six months in the Mediterranean country B. Under these circumstances the person may simultaneously reside habitually in both countries. It is also possible that the person’s habitual residence is situated solely in country A, whereas the sojourn in country B is nothing but a temporary interruption, and vice versa. Yet another option would be that the person’s habitual residence changes depending upon where the person is actually staying in a particular season. The correct answer, as has by and large been acknowledged in EU Member State practice, will depend upon the circumstances, namely, on the social ties the person has developed to each of the two places.

Only under special circumstances is it conceivable that a person’s habitual residence cannot be established. In such an exceptional case, a person’s mere presence may suffice as a basis for jurisdiction or for designating the applicable law (see ECJ Case C-523/07 – A [2009] ECR I-2805 para 43).

Literature

Fritz Schwind, ‘Der “gewöhnliche Aufenthalt” im IPR’ in Festschrift Murad Ferid (1988) 423; Dietmar Baetge, Der gewöhnliche Aufenthalt im Internationalen Privatrecht (1994); Denis Masmejan, La localisation des personnes physiques en droit international privé (1994); Pippa Rogerson, ‘Habitual Residence: The New Domicile?’ (2000) 49 ICLQ 86; Jan Kropholler, ‘Vorbem zu Art 19 EGBGB’ in von Staudingers Kommentar zum Bürgerlichen Gesetzbuch (13th edn, 2003) paras 128 ff; Philippe Guez, ‘La notion de résidence habituelle au sens du Règlement “Bruxelles II”’ [2005] Gazette du Palais 64; Anne Richez-Pons, ‘Note sous Aix-en-Provence, 18 novembre 2004’ (2005) 132 Journal du droit international (Clunet) 893; Ruth Lamont, ‘Habitual Residence and Brussels IIbis: Developing Concepts for European Private International Family Law’ (2007) 3 Jour PIL 261; Dietmar Baetge, ‘Auf dem Weg zu einem gemeinsamen europäischen Verständnis des gewöhnlichen Aufenthalts’ in Festschrift Jan Kropholler (2008) 77; Dietmar Baetge, ‘Article 19 Rome I’ and ‘Article 23 Rome II’ in Gralf-Peter Calliess (ed), Rome Regulations (2011).

Retrieved from Habitual Residence – Max-EuP 2012 on 01 December 2022.

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