Tosir Khan v. Entry Certificate Officer, Dacca

TOSIR KHAN v ENTRY CERTIFICATE OFFICER, DACCA, TH/2253/72(211)

Immigration Appeal Tribunal

[1974] Imm AR 55

Hearing Date: 26 October 1973

26 October 1973

Index Terms:

Returning resident -- Previous unconditional residence from 1963 to June 1969 -- Ill-health and inability to work motivating sale of house and return to family in Bangladesh -- Application for re-entry in April 1972 -- Whether admissible under Cmnd 4298 para 48 as 'ordinarily resident in United Kingdom' though not 'so resident during preceding 2 years -- Cmnd 4298, para 48.

"Ordinarily resident in the United Kingdom" -- Previous unconditional residence from 1963 to June 1969 -- Application to re-enter in 1972 -- Whether conditions as to 'ordinary residence's under para 48 of Cmnd 4298 disjunctive and severable -- Whether reasons motivating return to Bangladesh relevant when considering 'ordinary residence' -- Whether applicant 'ordinarily resident in U.K.' after absence of more than 2 years -- Cmnd 4298, para 48.

Jurisdiction -- Appeals arising from decisions taken outside the immigration rules -- Civil disturbances in Bangladesh leading to exercise of discretion outside the immigration rules -- Whether right of appeal to adjudicator -- Effect under Immigration Appeals Act 1969, s 8(2); Immigration Act 1971, s 19(2).

Held:

The appellant citizen of Bangladesh had, apart from some 12 months in Bangladesh during 1967/68, been resident in the United Kingdom without being subject to a time condition from September 1963 to June 1969. He returned to his family in Bangladesh in 1969 because through ill-health he was unable to work; his business in this country was moribund, and he closed his bank account and sold his house. In April 1972 he applied for an entry certificate as a returning resident: his application was refused. Paragraph 48 of Cmnd 4298 provides, inter alia, that unless subject to a deportation order

"any Commonwealth citizen is entitled to admission if he satisfies the immigration officer that he is ordinarily resident in the United Kingdom or has been so resident during the previous two years."

It was submitted before the Tribunal that the two conditions in para 48 were disjunctive and severable; that the appellant needed only to satisfy the first condition; that he had in fact become ordinarily resident in this country when he came here with the primary intention of taking permanent employment in 1963, and that he would remain ordinarily resident after an absence extending perhaps to 3 or 4 years. The Tribunal held that the conditions in para 48 were not severable and that the appellant was not 'ordinarily resident in the United Kingdom' when he applied for re-entry in April 1972 (see p 59, post). As to whether the appellant could appeal as a person who had been refused an entry certificate after consideration of his application on a discretionary basis outside para 48 of Cmnd 4298 by reason of the civil disturbances in Bangladesh which had impeded travel to the United Kingdom (see p 58, post), the Tribunal would not say that an applicant so refused when other applicants had been allowed could not appeal, but in the Tribunal's view such an appeal to an adjudicator against a decision taken by the Secretary of State outside the immigration rules must fail because of the provisions of s 8(2) of the Immigration Appeals Act 1969, now s 19(2) of the Immigration Act 1971.

Counsel:

Ahmed Ali of the United Kingdom Immigrants Advisory Service, for the appellant. B. Lockett for the respondent. PANEL: P. N. Dalton Esq (Vice-President), T. Neil Esq, Sir Gordon Whitteridge.

Judgment One:

THE TRIBUNAL: The appellant Tosir Khan, a citizen of Bangladesh, applied to the entry certificate officer Dacca on 17 April 1972 for a United Kingdom entry certificate as a returning resident. He produced his Pakistan passport which showed that he first went to Britain on 23 September 1963 and returned to Bangladesh on 7 August 1967. He again went to Britain in August 1968 and returned to Bangladesh on 26 June 1969, where he had been ever since. Mr Tosir Khan had predesh on 26 June 1969, where he had been ever since, Mr Tosir Khan had previously applied on 29 December 1970 for a United Kingdom entry certificate as a returning resident and was granted one but did not make use of it. When he was interviewed by the entry certificate officer, Mr Fromm, and asked if he had any property or a bank account in Britain the appellant said that he had sold his property in Oldham prior to returning to Bangladesh in 1969 and that he did not have a bank account in Britain. He also said that when he left Britain in 1969 he intended returning but the disturbances in Bangladesh in 1971 and lack of money had prevented him from doing so. The final paragraph of the explanatory statement is in the following terms: --

"8. Mr Khan wishes to resume his residence in Britain and has given two main reasons why he was unable to do so within two years of the date of departure (disturbances and lack of money). Mr Fromm, when dealing with 'returning resident' applications does take into account the disturbances of 1971, but in this particular case Mr Fromm considered that Khan had rather let matters slide. Mr Khan was issued with entry certificates, together with his family on 29.12.70 to enable him to enable him to return to Britain, but did not avail himself of these and of the following two months before the disturbances began. Mr Fromm considered this case under para 48 of Cmnd 4298 but he was not satisfied that Mr Khan had been ordinarily resident in the United Kingdom during the previous two years. Under para 49 of Cmnd paper 4298, Mr Khan had no strong family ties in the United Kingdom and had only lived there for about four years; he had not lived for most of his life in the United Kingdom. Mr Fromm therefore refused the application."

The appellant appealed and two witnesses gave evidence before the adjudicator, Mr Farmer. On 11.1.73 the adjudicator made various findings of fact on the evidence before him and then said in his determination: -- "I now propose to consider the matter in the light of paragraphs 48 and 49 of Cmnd 4298 n1. I find: -- n1 Paragraphs 48 and 49 of Cmnd 4298 read as follows: -- "48. With the sole exception of a person subject to a deportation order, any Commonwealth citizen is entitled to admission if he satisfies the Immigration Officer that he is ordinarily resident in the United Kingdom or has been so resident at any time during the previous two years. The record of movements in the passport will often show the period of absence from the United Kingdom and the identification of persons returning after a short absence, e.g. on holiday, will not ordinarily present difficulty. All those who have taken settled employment in the United Kingdom and whose stay was not subject to a time condition when they left the country are to be regarded as ordinarily resident here after their first entry and thus entitled to benefit from the relevant provisions. The Immigration Officer should satisfy himself that a Commonwealth citizen who claims to be returning to the United Kingdom after protracted absence has had his permanent home here at some time in the previous stwo years, hearing in mind that ordinary residence in the United Kingdom is compatible with lengthy absences abroad on business or in the employment of a firm based in the United Kingdom. 49. If a Commonwealth citizen is not entitled to return because he has not been ordinarily resident in the previous two years, and if he does not qualify to enter the United Kingdom under any order part of these instructions, he can still be admitted if, for example, he has strong family ties here and has previously lived in the United Kingdom for some considerable time. A Commonwealth citizen who had lived most of his life in the United Kingdom and wanted to return here could properly be re-admitted after quite a long absence." 1. The appellant has not resided in the United Kingdom during the two years previous to his last application for an entry certificate. 2. In view of the short time that he spent here in 1969, and after having carefully considered my findings as regards his general intentions, I am of the view that he was not ordinarily resident in the United Kingdom. 3. The appellant did not have a permanent home in this country in the two years previous to his last application. 4. I believe that he has some family ties here, but that they are not strong when judged in the context of his family in Pakistan. 5. After the most careful consideration I am unsable (and this is a finding that I make with some reluctance) to find that the appellant has lived in this country for a considerable time. For these reasons I dismiss the appeal." The appellant applied to the Tribunal for leave to appeal on the following grounds: -- "(1) The learned adjudicator erred in disregarding the fact that the appellant had entered the United Kingdom on 23 September 1963 as the holder of an employment voucher with the rights of employment and permanent stay in the United Kingdom. (2) The appellant's status as a settler is not adversely affected by the provisions of paragraphs 48 and 49 of Command 4298. (3) The learned adjudicator was wrong in holding that the appellant was not ordinarily resident in the United Kingdom, which finding is not in keeping with the Tribunal decision in the case of Shahbaz Khan v Secretary of State for the Home Department (TH/1819/71) n2 where the appellant having been lawfully admitted to the United Kingdom without conditions was held to be ordinarily resident here regardless of subsequent events. n2 [1972] Imm A R 172 at p 176. (4) The appellant had formed a settled and continuing intention to bring his family here in which he was thwarted by the intervention of a chain of events over which he had no control." Leave to appeal was granted and at the hearing of the appeal on 20 July 1973 Mr Ahmed Ali on behalf of the appellant submitted a letter he had received from Mr Fromm in which it is stated: --

"As regards the returning residents caught in the 1971 disturbances, I instructed my staff to lend a sympathetic ear to the many persons who were well over the two year limit, and I would think that the number of persons we cleared to return to Britain in such circumstances (and the Home Office concurred with those arrangements) must have run well into three figures. We thus got over the post independence problems with the minimum of difficulties and all those who wished to return to the U.K. have long since done so."

Mr Lockett said, concerning this letter, that he thought some instructions went out to Bangladesh about persons who had overstayed the two-year limit. The members of the Tribunal said that they would like to see a copy of those instructions and the appeal was adjourned. At the resumed hearing of the appeal Mr Lockett produced a note by the Home Office which is in the following terms: --

"Returning residents. Paragraphs 48 and 49 of Cmnd 4298. Application to Commonwealth Citizens from Bangladesh."

"A Commonwealth citizen not entitled to return to the United Kingdom under the terms of paragraph 48 of Cmnd 4298 was admissible under paragraph 49 if, for example, he had strong family ties here and had previously lived in the United Kingdom for some considerable time. The civil disturbances in what is now Bangladesh made travel to the United Kingdom impossible between March and June, 1971 and between December 1971 and February 1972. Where an applicant for an entry certificate as a returning resident had lost his entitlement under paragraph 48 the entry certificate officer considered whether or not to exercise a discretion on behalf of the Secretary of State outside the Rules so as to take account of the periods during which an applicant was prevented from travelling because of the suspension of services to the United Kingdom," Mr Ahmed Ali submitted that the appellant's case should be considered under s 2 (2)(a) of the Commonwealth Immigration Act 1962 and para 48 of Cmnd 4298. Section 2 (2)(a) provides: --

"The power to refuse admission shall not, except as provided by subsection (5) of this section be exercised on any occasion in respect of a person who -- (a) satisfies an immigration officer that he is ordinarily resident in the United Kingdom or was so ordinarily nesident at any time within the past two years."

The relevant part of para 48 is as follows: --

"With the sole exception of a person subject to a deportation order, any Commonwealth citizen is entitled to admission if he satisfies the Immigration Officer that he is ordinarily resident in the United Kingdom or has been so resident at any time during the past two years."

Mr Ahmed Ali submitted that the two conditions are disjunctive and severable and in no way interconnected. n3 If an appellant satisfies the first condition then the second condition is not applicable. As to the first condition, Mr Ahmed Ali said that the appellant came into this country with the primary intention of taking permanent employment and so became ordinarily resident and remained ordinarily resident after an absence of a considerable time, which, Mr Ali suggested, could extend to three or four years. With respect, we cannot agree with this submission. The evidence shows that the appellant decided to return to Bangladesh in 1969 because, through ill-health, he was unable to work and so decided to return to his family. At that time his business, if it had not already ceased, was moribund, and he sold his house in Oldham, closed his bank account and left. In such circumstances it can only be absurd to say that when the appellant applied in April 1972 for an entry certificate he was ordinarily resident in the United Kingdom. n3 Under para 51 of H.C. 79 (replacing para 48 of Cmnd 4298) a 'returning resident' is required to satisfy the immigration officer either that he was settled in the United Kingdom at the coming into force of the Immigration Act 1971 and has been settled here at any time during the 2 years preceding his return, or alternatively that he was settled in the United Kingdom when he left and has not been away for longer than 2 years. As to the second condition, it was not part of Mr Ali's case that the appellant had been resident in the United Kingdom at any time during the two years previous to his application for an entry certificate. It was however part of Mr Ali's case that if the Secretary of State considered some of the cases for 'returning resident' entry certificates outside the Rules and allowed some of the applicants to return and refused others, then those refused could appeal. We do not say that those refused cannot appeal, but we do say that, in our view, such appeals to ad adjudicator must fail because of the provisions of s 8(2) of the Immigration Appeals Act 1969, now s 19(2) of the Immigration Act 1971. Mr Ahmed Ali did not argue that the appellant should be granted an entry certificate by virtue of the provisions of para 49 of Cmnd 4298.

DISPOSITION:

Appeal dismissed.

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