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Domicile and the UAE: is it possible for an expatriate to be considered domiciled in the UAE under English law?

Byron James, Partner with Expatriate Law, asks a question concerning domicile on which there is no known decision.

Byron James, Expatriate Law

There are many things one could say about the concept of domicile; though it stands as one of the central tenets of English divorce jurisdiction, it is not typically subjected to a proper examination by the court due to the disproportionate nature of a challenge.

This article will focus on one question with a narrow focus on which there is no known decision: is it possible for an expatriate to be considered domiciled in the UAE under English law? 

Domicile will always be a question of fact, and therefore decisions will be fact-dependent case to case. This article will however set out whether, through illegality and impossibility, it is prima facie even arguable for an expatriate to acquire a domicile of choice in the UAE: there is a fine distinction between something that is extremely unlikely and something impossible. This article opts for the latter and answers the question posed that it is not.

The law in the UAE

The vast majority of the UAE population is made up by expatriates from all over the world. It has grown from just under 2.5 million people in 1995 to just under 10 million people in 2018 with c. 88.5 per cent being non-Emirati. Immigration law is therefore of vital importance.

The UAE is a civil law jurisdiction that relies upon the interpretation of statute by judges. There is no official translation into English of those statutory provisions, and one should be always cautious as Arabic notoriously does not literally translate into English especially well. There therefore could always be at any time numerous interpretations of any particular statutory provision when translated; there is no need for an official English version because the law is written and applied only in Arabic, and from the Emirati perspective this ambiguity is not a local issue.

The relevant authority is the General Directorate of Residency and Foreign Affairs and the primary statute is the Federal Law No.6 of 1973 (as amended) concerning Immigration and Residence ("Federal Immigration Law").

It is not lawful to reside in the UAE without a specific residence visa and it is not lawful to work in the UAE without a specific work permit. Once these have been obtained, it is possible then to obtain dependent residency visas for a spouse and dependent children. 

There are four main methods of obtaining a residence visa and work permit in Dubai:

i) Through employment: these are usually for a period of three years and require renewal each time;

ii) Through a company: these can be set up via one of the relevant free-zone areas and the applicable provisions are those referable to each area; they usually provide for a three-year visa for oneself and employees of the company; it is important however that the company has a genuine intention of trading and there could be criminal consequences to setting up a company solely for the purpose of providing a residence visa: see Article 34, Federal Immigration Law;

iii) A divorced spouse visa: applicable only for one year following a divorce;

iv) An investment visa: an investment of 10 million AED (i.e. c. £2,000,000) in the UAE can be used to obtain a visa for 10 years; 5 million AED invested in real estate (i.e. c. £1,000,000) can be used to obtain a visa for 5 years

Each category of visa is therefore time limited. At the conclusion of the relevant time period allowed by the visa, the longest possible time a person (and their family) can reside in the UAE is 60 days and  the minimum, usually, is 30 days whilst the mechanics of termination are resolved. The consequences for overstaying involve daily fines for each person overstaying: the fine for the first day is 225AED, then a further 25AED for each subsequent day. This increases to 50AED a day after six months. In an egregious case of overstaying, a person also risks being black-listed and therefore unable to return to the UAE in future. Where overstaying, those involved also risk being arrested and deported if at any time they come into contact with the police during the overstaying period, which is likely. The UAE is not generally tolerant to those who disobey the law.

There is a mandatory retirement age of 60 in the UAE following Federal Law No (7) 1999 for Pension and Social Security. The UAE Government in 2011 decreed that (from the Government website) "Expatriates who are older than 60 are allowed to work up to the age of 65 after obtaining approval of the Minister of Human Resources and Emiratisation or the Undersecretary. After the age of 60, labour cards are renewed annually." This is sometimes mis-reported as the mandatory retirement age having been increased to 65 and that no prior approval is required beyond 60; this is not correct in my understanding or experience.

After the age of 65, there is no legal way for any expatriate to remain living in the country.

The other visa available is a tourist visa. This is dependent upon the country of origin, applicable via one's country of passport: some passports allow for a 30-day visa on entry and some allow for 90-days. These can be renewed twice for a period of 30 days each time. Therefore, depending on the country from which a person has travelled, the longest a tourist visa will allow entry is in toto either 90 days or 150 days.  There is a long list of items which a tourist visa does not allow a visitor to do in the UAE, including: opening personal bank accounts in the UAE; applying for personal loans from UAE banks, including inter alia car loans; applying for a UAE driving licence; getting a local mobile phone subscription (contrary to pay-as-you-go); access to government health services and local health insurance; registering children in government schools and private schools; working in the UAE; acting as a sponsor for a family; obtaining an alcohol licence; renting a property, et al.

The law in England relating to domicile (as it applies to expatriates living in the UAE)

It is only possible for a child to be legally born in the UAE, and acquire a birth certificate, where the parents are married, and were married 180 days prior to the child being born (otherwise a birth certificate will not be issued without a court order and confirmation of no criminal action in the conception). Children born in the UAE should therefore usually be considered legitimate under English law and consequently the domicile of origin will follow that of the father (i.e. following Udny v Udny [1869] Lr 1 Sc & Div 441). It follows that a child born in the UAE will have a domicile of origin as the UAE only if their father was also domiciled there at the time of the child's birth. This will also apply to the child's domicile of dependency whilst the child remains unmarried and under 16, in the event that the domicile of the father changes during this time.

One must have regard always to the "more tenacious" aspect of the domicile of origin: "it is more difficult to prove that a person has abandoned his domicile of origin than to prove that he has abandoned a domicile of choice" (per Dicey [6-031] as quoted in Kelly v Pyres [2018] EWCA Civ 1368, para 33(i)).
It is only possible for a person to become a UAE national by law, citizenship or naturalisation in the following instances: if the person's father is Emirati; in the case of a woman, if she marries an Emirati; or in the case of an Arab individual, if he or she is from a GCC country. These will usually not be applicable in the majority of expatriate cases involving England and the UAE.

Domicile of origin must have two distinct elements in order to be acquired in a particular country: actual residence and an intention to reside in the new country permanently and indefinitely (inter alia, per Kelly v Pyres (Ibid, para 33(iv)).

In Udny (cited above), Lord Westbury stated: 

"... it must be residence fixed not for a limited period or particular purpose, but general and indefinite in its future contemplation. It is true that the residence originally temporary, or intended for a limited period, may afterwards become general and unlimited, and in such a case so soon as the change of purpose, or animus manendi, can be inferred the fact of domicil is established."

In Barlow Clowes International Limited v Henwood [2008] EWCA Civ 577 at para 14 per Arden LJ:

"Given that a person can only have one domicile at any one time for the same purpose, he must in my judgment have a singular and distinctive relationship with the country of supposed domicile of choice. That means it must be his ultimate home or, as it has been put, the place where he would wish to spend his last days". (emphasis by underlining added)"

In Agulian v Gyganik [2006] EWCA Civ 129 per Mummery LJ para 5:

"Everybody has a domicile of origin, which may be supplanted by a domicile of choice. He noted two particularly important features of domicile (1968 P 675 at 682) which are relevant to this case:

"First, that the domicile of origin prevails in the absence of a domicile of choice, i.e., if a domicile of choice has never been acquired or, if once acquired, has been abandoned. Secondly, that a domicile of choice is acquired when a man fixes voluntarily his sole or chief residence in a particular place with an intention of continuing to reside there for an unlimited time."…

Ibid, para 6:

" … (3) It follows that, though a man has left the territory of his domicile of origin with the intention of never returning, though he be resident in a new territory, yet if his mind be not made up or evidence be lacking or unsatisfactory as to what is his state of mind, his domicile of origin adheres…."       

Ibid, per Longmore LJ para 53:

"[53]… All the cases state that a domicile of origin can only be replaced by clear cogent and compelling evidence that the relevant person intended to settle permanently and indefinitely in the alleged domicile of choice."

Therefore, it should be a relatively uncontroversial starting point to hold that the requirements for a "permanent" and "indefinite" intention to remain in the UAE will be problematic for any expatriate seeking to establish the same. Given the impossibility of remaining in the country legally past the age of 65, how can one remain there with the intention of "never returning", "spend[ing] [one's] last days" there or "continuing to reside for an unlimited period of time". The Federal Immigration Law in the UAE clearly provides a finite period of time for legal residence in the UAE with a clear end point of age 65.

What then of illegal residence? In Mark v Mark [2005] UKHL 42 it was held that there was no reason in principle why a person whose presence in the UK was unlawful could not acquire a domicile of choice in this country; therefore, could one establish a domicile of choice in the UAE even if there is no legal basis for remaining there indefinitely or permanently 1?

In Mark v Mark, Baroness Hale found that there was no "long-standing and consistent approach to the issue such that we might be reluctant to depart from it" (para 44) and "it is necessary, therefore, to consider the matter as one of principle" (Ibid).

It was found that there was no public policy reason to require legality (paras 45 and 46):

Unlike some of the purposes for which habitual residence may be important, the State has no particular interest one way or another. Indeed, insofar as it does have an interest, this will probably lie in accepting that those who intend to remain here permanently have acquired a domicile here, whatever their immigration status. The actual results in Solomon and Smith, in denying relief to the innocent party to a matrimonial dispute, did no-one any good. While it might be said that the injustice stemmed, not from the principle under discussion, but from the common law's insistence that a wife was domiciled where her husband was domiciled, it would still have been in everyone's interests that the affairs of such long term residents were governed by the laws of the country with which they were so closely connected. The supposed principle served only to separate them from the most appropriate legal system to govern their affairs.

As a matter of principle, that connection is established by the coincidence of residence and the animus manendi. If a person has chosen to make his home in a new country for an indefinite period of time, it is appropriate that he should be connected to that country's system of law for the kind of purposes for which domicile is relevant. It would be absurd if this wife's capacity to make a will, succession to her moveable property, and her children's right to make a claim under the Inheritance (Provision for Family and Dependants) Act against her estate were not to be governed by the law of this country.

So, is "legality an essential element" (Ibid, para 47) of acquiring a domicile of choice?

Firstly, English law requires only a bona fide intention "in the sense of being genuine and not pretended for some other purpose" leading to the possibility of being "resident in a place where one has no right to be" having "form[ed] an intention to remain in a place despite considerable uncertainty as to whether this will be possible" (all, Ibid). 

Secondly, there "is the shifting nature of immigration status" (Ibid, para 48):

"An asylum seeker, for example, may commit a criminal offence by entering this country illegally. But on making his claim to the authorities, he may be granted temporary admission. His presence is no longer illegal, but under section 11(1) of the Immigration Act 1971 he is deemed not to be here at all. Is he then to be prevented from acquiring a domicile of choice here, although he undoubtedly has no intention of returning to his country of origin? Furthermore, a person's presence here may at times be lawful and at times unlawful. She may not even know what it is or think that it matters very much. She may enter for a limited purpose and be given limited leave to remain which then expires but is routinely renewed a short time later or the status changed.

Also, para 49:

"It seems to me that there is no reason in principle why a person whose presence here is unlawful cannot acquire a domicile of choice in this country. Although her presence here is a criminal offence, it is by no means clear that she will be required to leave if the position is discovered."

There is a clear position under English law that illegality alone does not prevent the acquisition of domicile of choice. Can this be reverse engineered and applied to an individual in the UAE? Given the statement of immigration law applicable in the UAE above, the only circumstances in which someone could intend to live permanently in the UAE is to accept that it would be illegal to do so; given this, does illegality operate in the same way for domicile of choice regarding the UAE under English law as it does for the UK?

Whilst each case certainly will depend upon its own facts, general principles are also of importance and, in the case of domicile and the UAE, the operation of the principle of impossibility is arguably determinative, i.e. is it even prima facie arguable via an application of the Mark v Mark illegality principle for one to acquire domicile in the UAE?

There are some distinct differences between the UAE and UK with regards to immigration law that render the reverse engineering principle of Mark v Mark not applicable. Firstly, it is possible to apply in England for permanent or indefinite leave to remain; this is not possible in the UAE. Therefore, in the examples given by Baroness Hale, the scope of uncertainty regarding outcomes – ranging from deportation to being granted permanent status – do not apply in the UAE. Since in England there might always be the potential for permanent status, however unlikely or unreasonable objectively, an individual can subjectively believe in and hope for such an outcome. The same cannot be said for the UAE: there is simply no facility for an expatriate to remain resident past the age of 65; therefore the range of possible outcomes, however unlikely or unreasonably believed in, does not extend as far in the UAE. Consequently, there is not the same concept of "shifting nature of immigration status": it is ultimately more binary and with no possible chance of appeal. Given the impossibility of remaining beyond 65, must an intention to permanently remain be inherently unreasonable? Can someone in good faith, reasonably and subjectively hold an aspiration for something to happen that is impossible? I would argue that they cannot.

Baroness Hale cited Briggs ACJ in Smith v Smith 1962(3) SA 930, a decision of the Supreme Court of the Federation of Rhodesia and Nyasaland, in Mark v Mark (para 42) as demonstrative of illegality not being a general principle against the acquisition of domicile of choice but rather, factually, going towards "the conditions for formulating the necessary animus":

"In this case, the intention of the appellant, putting it at the highest, can only have been,

'I will stay in Rhodesia if I can escape the attention of the authorities whose statutory duty is to deport me, and who will at once do so if they learn the true facts about me.'

I think a conditional or provisional intention of this kind cannot in law amount to the animus manendi necessary to establish a domicile of choice."

In this Rhodesian case, "a fugitive from justice in England, had entered Southern Rhodesia on a false passport and his entry and residence had at all times been unlawful under the Immigration Act". This "conditional" intention is applicable to the overstayer in the UAE too: upon accepting a visa in the UAE, in one of the categories set out above, there is an implicit (even perhaps explicit, depending upon the documents executed) mutual acceptance that the legality of remaining cannot be permanent; to intend on remaining past the age of 65 is only possible if the overstayer is capable of escaping the UAE authorities for the rest of his or her life and remaining without need to access any of the services only available to residents during that time (healthcare, banking, renting/purchasing a property, etc).

I therefore suggest that the concepts of illegality and impossibility are likely in most expatriate cases to preclude there being domicile of choice formed by an expatriate in the UAE. The highest one can place such an intention would be akin to the Rhodesian formulation, cited above, that could only ever be both in bad faith and conditional, rendering it not bona fide and permanent.

As a point of practice, there is also a danger for any resident of the UAE openly stating an intention to commit a criminal offence, something that would both affect an ability to renew legally a visa and potentially cause an immediate risk of prosecution. Could one advise a client to declare in a witness statement that they intended on illegally remaining in the UAE with the permanent intention of avoiding the authorities there forevermore? Whilst not impossible, it would involve a somewhat cavalier attitude towards the UAE criminal law and possible sanctions thereof; most expatriates would probably not want to incur the risks inherent in such a declaration.

Unless a case specifically involves an Emirati, the starting point in any case therefore involving the assertion of a domicile of choice as the UAE for an expatriate should be that such an assertion is likely to be wrong and capable of challenge. As stated above, it is hoped that those asserting a UAE domicile for expatriates review carefully the concepts of illegality and impossibility with regards to the factual basis of their case, and understand fully the implications for their client, including legal costs, in so doing.

1 With thanks to Alexander Chandler of 1KBW and Andrzej Borjaski of 36 Family for raising this very interesting point with me.