The Domicile of the Illegal Resident

Christopher Forsyth

Director, Centre for Public Law, University of Cambridge

JPrivIntL Vol 1 Issue 2 (October 2005)

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Abstract

This article comments on the decision of the House of Lords in Mark v Mark [2005] UKHL 42 in which it was held that an illegal resident could, none the less, acquire a domicile of choice in England. This is of significance both as a matter of principle and as a matter affecting the legal relations of the 500,000 illegal residents in the United Kingdom. Lady Hale’s speech shows that there was no consistent trend in the authorities across the Commonwealth and her Ladyship rested her judgment on a perceived need to have a person’s domicile reflect the system of law with which that person is most closely connected. But the article points out that the rules of the law of domicile are necessarily artificial and must at times, in order to ensure that everyone has a domicile and only one domicile, connect a person to a legal system to which they are not most closely connected. Lord Hope’s speech, on the other hand, distinguishes between public and private law and holds that a public law illegality was irrelevant to the private law issue of domicile. But the article point out there has to be a certain connection between public and private law and little guide as to the nature of that connection is given.

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