Patient under s3 - AMHP identified and consulted maternal aunt as NR as they had reason to believe mother (only other living relative) was living in South Africa at the time the application was made. Mother came back to UK to live with patient for a few weeks whilst he was on s17 leave - mother puts in a NR request for discharge - claiming she has dual residency and is therefore the NR whilst she is in the UK.
Is her NR request for discharge valid?
Not sure whether a few weeks would meet the “ordinarily resides with” criteria under s26(4), but it might meet the “cares for” part, as this does not have to be long term, as I understand it…? Interested in other views.
My understanding is that the NR determination under s26(5)(a) is based on ordinary residence and not residency status. The test of ordinary residence has been laid out in case law and is the place the person chooses to live in a settled status (for short or long duration).
A person can have residency status in the UK but choose not to live there, and I would argue that they would in that case not be ordinarily resident in the UK for the purposes of the MHA.
It seems to me an investigation and assessment is required of whether the person’s OR has moved from South Africa to the UK, or that they have just returned to the UK temporarily due to some other reason (e.g. their relative’s ill health)
Agree with Steve. Test in 26(5)(a) is whether the person is ordinarily resident in the UK. Applies as much to “cares for” situations as to actual relatives.