Visa Officer, Islamabad v. Shanaz Hussain
| Publisher | United Kingdom: Asylum and Immigration Tribunal / Immigration Appellate Authority |
| Author | Immigration Appeal Tribunal |
| Publication Date | 13 March 1978 |
| Citation / Document Symbol | [1978] Imm AR 103 |
| Type of Decision | TH/14696/77(1171) |
| Cite as | Visa Officer, Islamabad v. Shanaz Hussain, [1978] Imm AR 103, United Kingdom: Asylum and Immigration Tribunal / Immigration Appellate Authority, 13 March 1978, available at: https://www.refworld.org/cases,GBR_AIT,3ae6b6708.html [accessed 17 September 2023] |
| Disclaimer | This is not a UNHCR publication. UNHCR is not responsible for, nor does it necessarily endorse, its content. Any views expressed are solely those of the author or publisher and do not necessarily reflect those of UNHCR, the United Nations or its Member States. |
VISA OFFICER, ISLAMABAD v SHANAZ HUSSAIN, TH/14696/77(1171)
Immigration Appeal Tribunal
[1978] Imm AR 103
Hearing Date: 13 March 1978
13 March 1978
Index Terms:
Settlement -- Right of settlement -- Entry in 1967 under Commonwealth Immigrants Act 1962 free of immigration control -- Entry then as child accompanying resident parents -- No endorsement on her passport -- Return to Pakistan in 1970 -- Re-entry in 1974 sought (with husband) as person who has "previously been admitted for settlement" -- Whether entitled to be readmitted for settlement -- HC 79, para 5 -- Immigration Act 1971, s 2(1)(c) .
Held:
Mrs H was a citizen of the United Kingdom and Colonies who in May 1967 had been admitted to this country as a child aged 13 free from immigration control. Her 1967 passport bore no endorsement showing the basis of her admission, none being necessary in her case under the Commonwealth Immigrants Act 1962. She remained in the United Kingdom with her parents till February 1970, when she returned to Pakistan, and in 1972 she got married there to Mr H. In 1974 she sought re-admission for settlement (together with her husband) under para 5 of HC 79. n1 Her application for entry clearance was refused. The adjudicator to whom Mrs H appealed allowed her appeal, holding that in the circumstances of her admission in 1967 a right of settlement must be implied which would entitle Mrs H to re-admission for settlement under para 5 of HC 79 as a person who had "previously been admitted for settlement". n1 The material provision in para 5 of HC 79 is set out on p 105, post. The visa officer appealed to the Tribunal. Held (allowing the visa officer's appeal): The words in para 5 of HC 79 "previously been admitted for settlement" n1 were clear and unambiguous; and the fact that persons who entered before 1968, having under the Commonwealth Immigrants Act 1962 the right to come and go free from any immigration control, would find it almost impossible to show that they were admitted for settlement was not a valid reason for seeking to construe those words contrary to their meaning. (See p 106, post.) n1 The material provision in para 5 of HC 79 is set out on p 105, post. Per curiam: It would seem that para 5 of HC 79 was purposely drafted in the way it now stood, because it was not intended that persons who entered freely before 1968 to join their parents or for some other reasons, and then left after a year or so, should have the right to enter for settlement after several years had passed on a claim, which could rarely, if ever, be verified, that they had "previously been admitted for settlement". n2 n2 The Tribunal concluded their determination by drawing attention to the provisions of s 2(1)(c) of the Immigration Act 1971, under which citizens of the United Kingdom and Colonies, not already enjoying the right of abode, may after a specified minimum period of years in this country qualify for that right. Section 2(1)(c) is set out in footnote 4, post.Counsel:
W. G. Chalmers for the appellant visa officer. Z. H. Chishti of the United Kingdom Immigrants Advisory Service, for the respondent. PANEL: P. N. Dalton Esq (Vice-President), Miss M. F. Applebey, C. J. Brown EsqJudgment One:
THE TRIBUNAL: In this appeal the visa officer, Islamabad, is appealing from the determination of an adjudicator, allowing the appeal of Shanaz Amir Hussain, the present respondent, from a refusal to grant her an entry clearance to enable her to go to the United Kingdom for settlement. The respondent, who is a citizen of the United Kingdom and Colonies born on 5 June 1954, applied on 10 September 1974 at the British Embassy in Islamabad for the entry clearance. When she was interviewed on 10 March 1975 she was accompanied by her husband Amir Hussain. She told the interviewing officer that she had travelled with her parents to the United Kingdom on 20 May 1967 and had lived there with them until 19 February 1970. She had then returned to Pakistan, arriving on 20 February 1970, and had lived there since. Endorsements in her expired British passport confirmed these dates. She said she had married Mr Amir Hussain in Pakistan on 31 August 1972 and now wished to return to the United Kingdom with him for settlement. Mrs Hussain's application was refused for reasons expressed as follows in the explanatory statement:"The entry clearance officer then considered the application under the terms of para 5 of HC 79. The appellant had arrived in the United Kingdom on 20 May 1967 and her passport had not been endorsed, nor had the purpose of her journey been recorded. She had not been admitted for settlement on that occasion, and therefore had no claim to readmission for settlement on the present occasion. The officer also noted that the appellant had not lived in the United Kingdom for 5 unbroken years, which would have qualified her as patrial. Indeed the appellant had only lived in the United Kingdom for 2 of her 22 years, had been absent for 5 years at the time of her application and could not reasonably be considered to be separated from her family, as her closest relative, her husband, was with her in Pakistan. She did not qualify under para 5 of HC 79, nor under any other part of the Immigration Rules."
Mrs Hussain appealed to an adjudicator, Mr J. R. Fletcher, and her father gave evidence as to the circumstances of the respondent's arrival here in May 1967 and her return to Pakistan in February 1970. In his determination the adjudicator referred to the sole issue he had to determine which was whether or not Mrs Hussain was entitled under para 5 of HC 79 to be admitted to the United Kingdom for settlement. It was common ground that in May 1967 when the respondent came to the United Kingdom, her national status was such that she was free from any form of United Kingdom immigration control by virtue of the Commonwealth Immigrants Act 1962 and had a right to come and go freely. Reference was made to para 5 of HC 79 which provides, inter alia, that"Citizens of the United Kingdom and Colonies who hold United Kingdom passports wherever issued, and satisfy the Immigration Officer that they have previously been admitted for settlement in the United Kingdom should be freely readmitted."
Mr R. Sheikh of the UKIAS, who appeared for Mrs Hussain before the adjudicator, argued that as she was not in any way subject to immigration control she had an implied right to be admitted for settlement because she was free to come and go in any capacity she chose. Mr A. Richards, who appeared for the then respondent, was asked by the adjudicator what would have been the position had the then appellant said to the immigration officer in May 1967 "I want to be admitted for settlement"; he replied that she would have been told that as she was not subject in any way to immigration control her request would not be treated seriously, and she would have been waved through the barrier. The adjudicator then said: "It seems to me, therefore, that it is almost impossible satisfactorily for the appellant in these circumstances to say that she was specifically admitted for settlement in 1967 because there was no necessity whatever for her to seek such specific admission and in my view, therefore, having the right to come and go free from immigration control of any kind whatever, she had such implied right of settlement. I accept Mr Sheikh's view that a right to be admitted for settlement must be implied in the circumstances. In any event the facts clearly established that this appellant was coming to join her parents and make her home in this country and in fact did so from 20 May 1967 to 19 February 1970 and, therefore, there was a definite settlement. Two decisions of the Tribunal have been cited in argument. Viz the cases of Faqir Singh and Kartar Singh Sumal. n3 These decisions appear to be in conflict with each other. Where they conflict I prefer the reasoning in Kartar Singh Sumal which was resolved in favour of the appellant. It would seem to me that an almost impossible task is placed upon an appellant if he is to satisfy in literal terms the words 'previously admitted for settlement' in para 5 of HC 79 for the reasons I have already given." n3 Faqir Singh v Secretary of State for the Home Department, TH/14026/75(878), (unreported); Kartar Singh Sumal v Entry Clearance Officer, New Delhi, TH/6590/75(748), (unreported). The adjudicator allowed the appeal. An application was made to the adjudicator for leave to appeal to the Tribunal on the grounds that he had erred in his interpretation of para 5 of HC 79 and his decision was contrary to the Tribunal's finding in the case of Faqir Singh n3. Leave was given. n3 Faqir Singh v Secretary of State for the Home Department, TH/14026/75(878) (unreported); Kartar Singh Sumal v Entry Clearance Officer, New Delhi, TH/6590/75(748), (unreported). After hearing the submissions by Mr Chalmers for the appellant and by Mr Chishti for the respondent we allowed the appeal for the following reasons. The respondent's application for entry clearance to go to the United Kingdom for settlement was based on the claim that she had "previously been admitted for settlement", and the entry clearance officer refused the application because he concluded that she had not been previously admitted for settlement. These words in para 5 "previously been admitted for settlement" appear to us to be clear and unambiguous, and because persons who entered before 1968, having the right to come and go free from any immigration control whatsoever, would find it almost impossible satisfactorily to say that they were admitted for settlement it is not, we think, a valid reason to seek to construe the words contrary to their meaning. Indeed, it seems that the rule was purposely drafted in the way it now stands because it was not intended that persons who entered freely before 1968 to join their parents or for some other reason, and then left after a year or so, should have the right to enter for settlement after several or more years have passed on a claim, which could rarely, if ever, be verified, that they had "previously been admitted for settlement". As it is, citizens of the United Kingdom and Colonies who freely entered before 1968 can after the passage of years acquired the right of abode in the United Kingdom under s 2(1)(c) of the Immigration Act 1971. n4 n4 Section 2(1)(c) provides as follows: "A person is under this Act to have the right of abode in the United Kingdom if --... (c) he is a citizen of the United Kingdom and Colonies who has at any time been settled in the United Kingdom and Islands and had at that time (and while such a citizen) been ordinarily resident there for the last five years or more;". The respondent therefore did not satisfy the requirements of para 5 of HC 79 and we allowed the appeal.DISPOSITION:
Appeal allowed.Copyright notice: Crown Copyright
