Analysis of Lesotho Diplomat’s Post-Mission Residency in China Referencing Johnson v Johnson 1931

Introduction

In English private international law, the concept of domicile connects a person to a particular legal system. While every individual possesses a domicile of origin at birth, they can later acquire a domicile of choice by satisfying a two-part test: physical residence in a new country (the factum) and a demonstrable intention to remain there permanently or indefinitely (the animus manendi) (Dicey, Morris and Collins, 2022). For certain individuals, such as diplomats, whose presence in a country is dictated by their professional duties, the law presumes that the requisite intention is absent. This essay will critically explain this presumption and how it may be rebutted, with specific reference to the principle in Johnson v Johnson [1931] P 1. It will be argued that if a diplomat successfully acquires a domicile of choice, the end of their mission does not, in itself, terminate that domicile; rather, their continued presence reinforces the intention required.

The General Rule for Persons Under an Obligation to Reside

A domicile of choice cannot be acquired through residence that is not freely chosen. The law presumes that individuals who are constrained to live in a particular place, such as prisoners, members of the armed forces, or diplomats, do not possess the necessary animus manendi to establish a new domicile. Their presence is seen as a consequence of compulsion or duty, not of a free intention to make that country their permanent home (Cheshire, North and Fawcett, 2017).

For a diplomat, their residence in a foreign country is for the purpose of fulfilling their official duties for a fixed or determinable period. It is therefore presumed that their intention is to stay only as long as their post requires and to leave upon its termination. This creates a significant, though not absolute, barrier to them acquiring a domicile of choice in the country where they are posted. The burden of proof rests on the person asserting that a new domicile has been acquired, and for a diplomat, this burden is particularly heavy.

The Exception Provided in Johnson v Johnson

The case of Johnson v Johnson [1931] P 1 is a key authority that illustrates that the presumption against diplomats acquiring a domicile of choice is rebuttable. The case concerned the domicile of a British diplomat who had been in the foreign service for many years and was posted to various countries, including China. The court held that while a person’s presence in a country for the discharge of their duties does not by itself prove intention to reside there permanently, it is not impossible for them to acquire a domicile of choice in that place.

The crucial principle established is that the diplomat must demonstrate a clear and fixed intention to make the country their home, an intention that is separate from, and independent of, their diplomatic role. Evidence of this could include purchasing a family home, developing business interests, integrating into the local community, and making clear declarations of intent to remain in the country after retirement or the end of their service.

In the scenario provided, the Lesotho diplomat is said to have acquired a domicile of choice in China. Based on the principle in Johnson, this would only be legally possible if the diplomat had provided strong evidence of an animus manendi that went beyond their five-year mission. For instance, they might have married a Chinese national, invested in a local business for their retirement, and expressed a settled intention to live in China indefinitely, irrespective of their diplomatic status.

Retention of Domicile After the Diplomatic Mission

The question asks whether the diplomat can "remain in the country" after their assignment ends. In the context of domicile, this refers to their ability to retain their acquired Chinese domicile. A domicile of choice, once acquired, continues until it is abandoned by leaving the country with the intention of ceasing to reside there permanently (Dicey, Morris and Collins, 2022). The end of the diplomat’s official mission has no automatic effect on their domicile.

If the diplomat has genuinely formed the intention to make China their permanent home, the end of their diplomatic posting is simply the removal of the reason for their initial compulsory residence. By choosing to stay in China after they are no longer obliged to be there, their intention to remain is strongly confirmed. This act of remaining transforms their residence from one based on duty to one based purely on choice, thereby strengthening, rather than weakening, the evidence for their Chinese domicile. Therefore, not only can they retain their domicile of choice, but the act of doing so provides powerful retrospective evidence that the domicile was validly acquired in the first place, consistent with the principle in Johnson v Johnson.

Conclusion

In conclusion, while the law presumes that a diplomat does not acquire a domicile of choice in the country of their posting due to the element of duty associated with their residence, this is a rebuttable presumption. The case of Johnson v Johnson establishes that with sufficient evidence of an intention to remain permanently, independent of the diplomatic posting, a domicile of choice can be acquired. If the Lesotho diplomat has met this high threshold and acquired a Chinese domicile, the termination of their diplomatic mission is of no consequence to its continuation. As long as they remain resident in China with the requisite intention, their domicile of choice will persist.

References

Cheshire, North and Fawcett (2017) Cheshire, North & Fawcett: Private International Law. 15th edn. Oxford: Oxford University Press.

Dicey, Morris and Collins (2022) Dicey, Morris & Collins on the Conflict of Laws. 16th edn. London: Sweet & Maxwell.

Johnson v Johnson [1931] P 1.

Udny v Udny (1869) LR 1 Sc & Div 441.