Taneja v. Entry Clearance Officer, Chicago

TANEJA v ENTRY CLEARANCE OFFICER, CHICAGO, TH/11706/75(766)

Immigration Appeal Tribunal

[1977] Imm AR 9

Hearing Date: 22 July 1976

22 July 1976

Index Terms:

Returning resident -- "Settled" under the 'returning resident rule' -- "Indefinite leave to enter or remain" -- Commonwealth citizen settled in the United Kingdom for 8 years prior to 22 May 1970 -- Not in the United Kingdom when Immigration Act 1971 came into force (1 January 1973) -- Studying in USA since January 1971 -- Week's visit to UK in April 1972 -- Entry certificate as 'returning resident' granted in March 1974 but not used during its validity -- Fresh application made in November 1974 refused -- Whether discretion to admit applicant under '2-year rule' by reason of any valid excuse for his not using entry certificate of March 1974 -- Whether applicant was entitled to indefinite leave to enter -- Mughal's Case ([1973] 3 All ER 796, CA) applied -- Immigration Act 1971, s 1(2) -- HC 79, paras 51, 52.

Held:

T, a citizen of India born in 1934, came to the United Kingdom in 1962 and stayed here in various employments till May 1970, when he left to take up studies in the USA. In April 1972 he returned to the UK for one week. In March 1974 he applied for and was granted an entry certificate as a 'returning resident' under para 51 of HC 79. n1 He did not use that entry certificate within the period of its validity and, claiming that he had been prevented from doing so by illness, he applied again in November 1974 for entry as a returning resident. In view of his absence from the UK for more than 2 years his application was considered under para 52 of HC 79 n2 and refused by the Entry Clearance Officer on the ground that T had no close family ties with the UK and had not lived in this country 'for most of his life'. n1 Paragraph 51 of HC 79 is set out on p 15, post. n2 Paragraph 52 is set out on p 15, post. On T's appeal to an adjudicator and, from the dismissal of that appeal, to the Tribunal, it was submitted for T, inter alia, that under para 51 of HC 79 n1 there was a discretion to extend the 2-years' time limit there prescribed, and that in the circumstances of T's failure to use the entry certificate granted to him in March 1974 that discretion should have been exercised in his favour. Before the Tribunal it was conceded that T, not having been in the UK at the coming into force of the Immigration Act 1971 on 1 January 1973 he did not meet the requirements of the latter part of s 2(1) of the Act, n3 but it was submitted that the adjudicator should nonetheless have followed the Tribunal's decision in Mazail Singh's Case (TH/4480/74(591) d 21.1.76) in which the Tribunal held the words 'ordinarily resident' and 'settled' to be synonymous for the purposes of the Immigration Act and rules and had allowed Mazail Singh to re-enter as a returning resident, because though not actually present in the UK on 1 January 1973 he had continued to be ordinarily resident there during his absence abroad (for some 2 years 3 months between October 1971 and 11 January 1973). It was not contended before the Tribunal that T could qualify for re-entry under para 52 of HC 79. n1 Paragraph 51 of HC 79 is set out on p 15, post. n3 The material part of s 1(2) of the Act is set out on p 13, post. Held: (i) Since T was residing in the USA when s 1 of the Immigration Act 1971 came into force, he could not claim to have been given under s 1(2) "indefinite leave to enter or remain in the United Kingdom". Court of Appeal decision in R v Secretary of State for the Home Department, ex p Mughal ([1973] 3 All ER 796, per SCARMAN LJ at pp 806, 807), applied. Tribunal decision in Entry Clearance Officer, New Delhi v Mazail Singh (TH/4480/74(591) d 21.1.76, unreported), disapproved. (ii) T, having been away from the UK for more than 2 years, was not entitled to re-enter under para 51 of HC 79. Tribunal decision in Hashim's Case ([1974] Imm. A.R. 75), holding that under the earlier rule (para 48 of Cmnd 4298) there was no discretion to extend the 2-year period of absence, applied.

Counsel:

Z. H. Chishti of the United Kingdom Immigrant Advisory Service, for the appellant. C. Manchip for the respondent. PANEL: Sir Derek Hilton, President, Mrs L. Bonham Carter, Sir Gordon Whitteridge

Judgment One:

THE TRIBUNAL: This appeal was against the determination of an adjudicator (Mr J. K. Brownlees) dismissing the appeal of the appellant against the refusal to grant him an entry certificate as a returning resident. The appellant, Mr Dharam Bir Taneja, a citizen of India born on 28 October 1934, was granted an entry certificate by the respondent on 22 March 1974 as a returning resident. Subsequent events are recorded in the Home Office statement as follows: "2. However, on 11 September 1974 the Second Secretary (Consular) at the Indian High Commission in London wrote to the Home Office on the appellant's behalf enclosing a note from the appellant's brother (Annex A), outlining the appellant's recent history. He also explained that Mr Taneja, who was still in the United States of America, had been unable to use the entry certificate granted to him for return to the United Kingdom as he had suffered a 'set-back of deep depression and showed symptoms of extreme anxiety'. In view of this condition the appellant's brother claimed that Mr Taneja's doctor had advised against travelling. The brother requested that the appellant now be approved entry once more to resume residence in the United Kingdom. 3. The Home Office in turn wrote on 25 September 1974 to our representatives in the United States of America and advised them of the situation. They were provided with a copy of Annex A and requested to re-interview the appellant to determine if there were circumstances sufficiently exceptional to warrant allowing the appellant to return to the United Kingdom for settlement outside the normal 2-year period (para 52 HC 79). n4 n4 Paragraph 52 of HC 79 is set out on p 15, post. 4. On 24 October 1974 the entry clearance officer at the British Consulate General, Chicago, replied confirming the issue of the original entry certificate and stating that despite a request to call for interview sent to the appellant on 9 October 1974, Mr Taneja had not responded. 5. On 10 January 1975 the entry clearance officer in Chicago wrote again to the Home Office and stated that the appellant had recently left the United States of America for India with his brother, but that before they went he had taken the opportunity of interviewing them both. The appellant originally entered the United Kingdom just prior to the introduction of the Commonwealth Immigrants Act 1962. His passports confirmed that he was settled in the United Kingdom for 8 years prior to his arrival in the United States of America on 22 May 1970. Since his arrival in the United States of America he had returned to the United Kingdom only once, in April 1972, when he had stayed for one week. The entry clearance officer went on to report that the appellant had been employed by the Indian High Commission as a temporary typist grade II from 22 October 1962 until February 1963, when he worked for Glenhurst (London) Limited until July 1968. He then changed his employment and worked for Rockford Marketing Limited until November 1969. 6. Since January 1971 the appellant has been studying business data processing and accounting at the University of Cincinatti, Ohio, and he produced a reference from the Director of Student Counselling there. However, Mr Taneja told the entry clearance officer that he had always felt that his future lay in the United Kingdom, where greater opportunities existed than in India and that he had been happy working in Britain. He said that he had simply taken the opportunity in 1970, through his elder brother, to study in the United States of America. With regard to his family the entry clearance officer remarked that all his close relatives were in India, i.e. three brothers, his parents being dead. His only relative in the United Kingdom is a distant cousin. The entry clearance officer considered that the appellant had no close connections with this country. The entry clearance officer went on to point out that the appellant was not expected to return to the United States of America in the foreseeable future and that further correspondence should be sent to the appellant c/o Mr P. D. Taneja, 388-E Government Quarters, Karul Bagh, Dev Nagar, New Delhi 5. With regard to the appellant's mental state the entry clearance officer opined that apart from bouts of depression there appeared to be no evidence of real mental illness. He enclosed a letter from the appellant's medical practitioner which supported this view. A form (IM2, application for entry) dated 29 November 1974 was also submitted. The Secretary of State considered the case in view of all the relevant facts. The appellant had applied for an entry certificate with a view to admission to the United Kingdom as a returning resident. However, he had been absent from the United Kingdom for over 2 years; indeed he had only returned to the United Kingdom for a period of one week since 1970. Furthermore the appellant had no strong family ties here, had not lived most of his life in the United Kingdom and clearly had more close connections with his home country than with this one. The Secretary of State therefore could find no special circumstances to justify the appellant's readmission to the United Kingdom as a returning resident outside the normal 2-year rule. Accordingly the entry clearance officer in New Delhi was instructed to refuse the application." After hearing the testimony of two friends of the appellant and submissions on behalf of the parties the adjudicator dismissed the appeal, concluding his determination as follows: "Mr D. J. Barrell, Chief Immigration Officer, commenced his argument by submitting that the Tribunal had been wrong in its earlier determination in Mazail Singh n5 in finding that under the 1971 Act and 1972 Rules 'settled' is synonymous with 'ordinarily resident'. In his opinion s 2(3)(d) of the Immigration Act 1971 n6 showed that 'settlement' meant more than 'resident': 'ordinarily resident' meant being subject to condition, on removal of which the person concerned became settled. Furthermore s 7(2) of the same Act meant that a person settled here could not be in breach of Immigration Law. The passage commencing 'Out of deference...' in the judgment of the Court of Appeal of 26 July 1973 in the appeal of Mohd Ashraf Mughal n7 showed clearly that the present appellant had no entitlement to return under para 51. Furthermore the Tribunal in its determination in Mazail Singh n5 had been in error in taking the length of stay in the United Kingdom, and the ties here, into consideration in coming to its determination under para 51 of HC 79. n5 Entry Clearance Officer, New Delhi v Mazail Singh, TH/4480/74 (591) d 21.1.76 (unreported). The facts in Mazail Singh's Case are summarised on p 17, post, together with the relevant words of the Tribunal in that case (a differently constituted panel). n6 Section 2(3)(d) of the Act is in the following terms: "Subject to s 8(5) below [certain categories of exempt persons], references to a person being settled in the United Kingdom and Islands are references to his being ordinarily resident there without being subject under the immigration laws to any restriction on the period for which he may remain". n7 R v Secretary of State for the Home Department, ex Mughal, [1973] 3 All ER 796, per SCARMAN LJ at p 807; see passage cited on pp 15-17, post. Turning to para 52 of the same Immigration Rules Mr Barrell cited the Tribunal determination in the appeal of Costa n8 as establishing that applicants under para 52 had to establish both length of stay in the United Kingdom and strong family ties with this country. The present appellant, whose circumstances were similar to those in Regidor n9, in which the Tribunal had allowed the appeal of the Immigration Officer, London Airport, had failed to show either length of stay in relation to his overall lifespan, or close strong family ties. The fact that he had been granted a returning resident's entry certificate in 1974 did not affect the issue as it had not been taken up: nor were his reasons for failing to do so very relevant. The evidence suggested that his state was not a very bad one. The appeal should accordingly be dismissed. n8 [1974] Imm A R 69 at p 74. n9 TH/970/74 (437) (unreported). Mrs C. Circus reviewed the appellant's history in relationship to the United Kingdom and submitted that in accordance with the determination of the Tribunal in Mazail Singh, a determination which had not been challenged, the appellant was ordinarily resident and qualified for entry as such. He had obtained his entry certificate in March 1974, and would have returned within time if he had not suffered from his illness and depression. With regard to para 52, the grounds of appeal showed that the appellant had wished to equip himself for a future life in the United Kingdom and thus had left for the United States to study, being a chief accountant when he left here. He had every intention of returning to the United Kingdom at all times, and his return had been delayed by illness beyond his control. The appeal should be allowed. The appellant is not a patrial and in consequence he could only enter the United Kingdom by leave (s 3(1)(a) of the Immigration Act 1971). He was not in the United Kingdom on 1 January 1973 when the Act came into force, but it is argued in his behalf, as it was on behalf of Mughal before the Court of Appeal, that he was settled here and therefore had indefinite leave to enter under s 1(2) of the 1971 Act, the latter part of which reads as follows:

'... indefinite leave to enter or remain in the United Kingdom shall by virtue of this provision be treated as having been given under this Act to those in the United Kingdom at its coming into force, if they are then settled there (and not exempt under this Act from the provisions relating to leave to enter or remain).'

Since the appellant was not in the United Kingdom on 1 January 1973 I find, for the reasons fully set out by SCARMAN LJ in Mughal, in the passage cited by Mr Barrell, n10 that the appellant did not at the time he applied for and was refused entry clearance fall within the category established by s 1(2) of the Act, and in consequence was not entitled to indefinite leave of entry. n10 For the passage cited, see pp 16-17, post. It is not in dispute that when the appellant applied for entry clearance he had been away from the United Kingdom for longer than two years and accordingly he has no claim to entry under the provisions of para 51 of HC 79, which confer no discretionary powers to extend this time limit. Finally I am satisfied that Mr Taneja has neither lived in the United Kingdom for most of his life nor has strong family ties here (I agree with Mr Barrel in his interpretation of the principle enunciated by the Tribunal in its determination in Costa n11: that there has to be a combination of the two) and that he cannot benefit under para 52 of HC 79." n11 [1974] Imm A R 60, at p 74. The Tribunal granted leave to appeal on the following grounds: "1. The learned adjudicator has erred in law in not following the Tribunal decision in the case of Mazail Singh (TH/4480/74(591)) which is binding on him unless overruled. 2. The learned adjudicator ought to have taken note of and deprecated the argument by the Chief Immigration Officer that the decision of the Tribunal in Mazail is wrong. Both the Chief Immigration Officer and the learned adjudicator have no appellate jurisdiction over the Tribunal. 3. The learned adjudicator has further erred in law in holding that there are no discretionary powers to extend the time limit prescribed under para 51 of HC 79. Paragraphs 51 and 52 read together make it abundantly clear that para 51 is directory and not mandatory. 4. That the learned adjudicator ought to have held that on the probative medical evidence of sickness on record there were exceptional circumstances warranting grant of entry clearance to the appellant as a returning resident and particularly as he had already been granted an entry clearance but was prevented from utilising it due to his illness. The appeal ought to have been allowed." At the hearing before us Mr Chishti confirmed that the facts were not in dispute. As the appellant was not in the United Kingdom when the Immigration Act 1971 came into force on 1 January 1973 it was agreed that the appellant did not meet the requirements of the latter part of s 1(2) of that Act. Mr Chishti reminded us in detail of the facts and submitted that para 51 of HC 79 was not mandatory but allowed the exercise of discretion. The appellant had not abandoned his residence in the United Kingdom as he intended to return after his studies in the United States. He had been unable to return with the 2-year period owing to his illness, and in such a case discretion should be exercised to consider the special circumstances. Mr Chishti further submitted that the adjudicator had to follow the Tribunal decision of 21 January 1976 in Entry Clearance Officer, New Delhi v Mazail Singh n12 -- such decision was binding on him until it was upset by a higher court. That decision was not affected or overruled by the Court of Appeal decision in R v Secretary of State for the Home Department ex p Mohammed Ashraf Mughal on 26 July 1973. n13 n12 TH/4480/74 (591) (unreported) n13 [1973] 3 All ER 796, (Lord Denning MR, Megaw and Scarman LJJ). Mr Chishti said that he was not pressing the appeal under para 52 of HC 79. In reply Mr Manchip submitted that the decision of the Tribunal in Mazail Singh n12 in holding that a person was ordinarily resident in the United Kingdom while abroad, provided that he had an intention to return, was misconceived. Such decision appeared to confuse the concept of domicile with ordinary residence. Mr Manchip pointed out that the adjudicator in the present appeal was aware of the decisions in Mazail Singh and Mughal when reaching his decision and that he was able to conclude that in the Mazail Singh appeal the Tribunal's attention had not been drawn to the Court of Appeal decision in Mughal. In his submission para 51 was mandatory and para 52 was discretionary. In the case of Hashim v Entry Certificate Officer, Dacca n14 the Tribunal so found under the former immigration rules and in his submission the same principles applied under the current rules. n12 TH/4480/74 (591) (unreported) n14 [1974] Imm A R 75; TH/2293/73 The immigration rules governing this appeal are contained in paras 51 and 52 of HC 79, which read: "51. A passenger who satisfies the Immigration Officer that he was settled in the United Kingdom at the coming into force of the Act, and that he has been settled here at any time during the 2 years preceding his return, is to be admitted for settlement. Any other passenger returning to the United Kingdom from overseas (except one who received assistance from public funds towards the cost of leaving this country) is to be admitted for settlement on satisfying the Immigration Officer that he was settled in the United Kingdom when he left and that he has not been away for longer than 2 years. 52. A passenger who has been away from the United Kingdom too long to benefit from the preceding paragraph may nevertheless be admitted if, for example, he has lived here for most of his life." The appellant was residing in the USA on 1 January 1973 when s 1 of the Immigration Act 1971 came into force and he could not therefore claim to have been given under s 1(2) "indefinite leave to enter or remain in the United Kingdom" n15 as he was not here on that date. In the Mughal Case n16 SCARMAN LJ said: n15 Section 1(2) is set out in full in the additional passage from the judgment of SCARMAN LJ which is reproduced in footnote 17. n16 [1973] 3 All ER 796 at p 807. "For the reasons I have attempted to give I think the rules cover those who are to be treated under s 1(2) as having indefinite leave to enter. n17 Accordingly such a person, if he seeks to enter the United Kingdom, has to satisfy the immigration officer that he is entitled to the leave he claims -- exactly as, I would add, a patrial has to prove that he is a patrial (see ss 1(1) and 3(8)). Mr Mughal failed so to satisfy the immigration officer. n17 The words here cited from the judgment of SCARMAN LJ were preceded by the following passage (Mughal's Case, ibid, at pp 806, 807): "Counsel for the applicant submitted that on its true construction s 1 (2) of the 1971 Act conferred on those to whom it applied a right to come and go comparable with that given to patrials. The submission is, in my view, based on a misapprehension of the purpose of the 1971 Act. The 1971 Act draws a fundamental distinction between those who have the right of abode and everyone else. The right of abode carries with it the freedom to come and go into and from the United Kingdom without let or hindrance. This freedom is, in express language, given to no one other than patrials, and those Commonwealth citizens who can claim the benefit of s 1 (5). But, so the argument runs, s 1 (2) confers on a class of people, of whom it is said the applicant is one, an entitlement which is the equivalent of this freedom. The subsection reads as follows:

'Those not having that right may live, work and settle in the United Kingdom by permission and subject to such regulation and control of their entry into,

stay in and departure from the United Kingdom as is imposed by this Act; and indefinite leave to enter or remain in the United Kingdom shall, by virtue of this provision, be treated as having been given under this Act to those in the United Kingdom at its coming into force, if they are then settled there (and not exempt under this Act from the provisions relating to leave to enter or remain.)'

The first sentence makes clear that those who do not have the right of abode may live work and settle in the United Kingdom only by permission and subject to the regulation and control imposed by the 1971 Act. The second sentence appears to deal with a class of persons who, not having this right, need permission to be here; for they are to be treated as having been given indefinite leave to enter or remain in the United Kingdom. 'Leave to enter or remain' is a species of 'permission': it is not an apt phrase to describe presence here as of right. Save for the adjective 'indefinite' there could be no doubt but that the leave given by the subsection was subject to the rules laid down by the Secretary of State under s 3 (2) regulating the entry into and stay in the United Kingdom of persons required by the 1971 Act to have leave to enter, and to the other provisions of the Act dealing with leave to enter, e g s 3 (4) whereby a person's leave lapses on his going abroad. Does the qualifying adjective 'indefinite' remove the s 1 (2) type of leave out of the range of the general provision of the 1971 Act regulating leave to enter or remain here? In my opinion, it does not. Indefinite leave is to be contrasted with limited leave to enter or remain: see, forexample, s 3 (5). It means no more than leave for an indefinite period. The 1971 Act treats entry as a moment at which conditions, including a condition as to time of stay, may be attached to leave to enter; there is nothing inconsistent with the tenor of the Act in construing 'indefinite leave to enter' as meaning leave to enter for an unlimited period of time. But, conversely, it would be very odd if the Act used the language of 'leave' to describe a right which was outside the control of the Act; and I do not so read the subsection. Accordingly, the indefinite leave given by s 1 (2) is only one sort of the permission available under the Act to those not having the right of abode, and is subject to the regulation and control of entry imposed by the Act. Such regulation is to a large extent to be found in the Immigration Rules (1972) made under s 3 (2), r 51 of which provides:

'A passenger who satisfies the Immigration Officer that he was settled in the United Kingdom at the coming into force of the Act, and that he has been settled here at any time during the 2 years preceding his return, is to be admitted for settlement...'"

I answer, therefore, the appellant's first two submissions as follows: section 1(2) confers on those to whom it applies a form of leave which is subject to the control imposed by the 1971 Act and the Immigration Rules (1972). A person claiming this form of leave has on entry to satisfy an immigration officer that he is entitled to it. Out of deference to the argument placed before us I have expressed my views on the meaning of 'indefinite leave to enter' and its place in the general scheme of the 1971 Act. n17 But, in truth, Mr Mughal cannot bring himself within the class of those entitled to be treated as having been given such leave. He is faced with this difficulty: he was not in the United Kingdom when the Act came into force, but in Pakistan, visiting his wife and children. The difficulty is, in my view, insurmountable; I am not prepared to accept that, when Parliament speaks of persons in the United Kingdom in the context of a statute which is largely concerned with coming and going, entering and remaining, it means to include those who, in fact, are not in but outside the United Kingdom at the relevant time. Should it be said that so strict an interpretation is harsh and operates unjustly on people taking a holiday abroad, there is an answer: first, there was plenty of warning, for the provision was enacted on 28 October 1971, but did not come into force until 1 January 1973; and secondly, by s 1(5) of the Act, Commonwealth citizens, who are settled in the United Kingdom at the coming into force of the Act, are to be no less free to come and go than if the Act had not been passed. The effect of this subsection (to which the Immigration Rules faithfully adhere) is that any such citizen who satisfies an immigration officer that he is ordinarily resident in the United Kingdom, or had been so at any time during the two years preceding his entry, is to be allowed to enter. The ordinary residence to which the section refers is, of course, lawful residence: see Re Abdul Manan." n18 n17 The words here cited from the judgment of SCARMAN LJ were preceded by the following passage (Mughal's Case, ibid, at pp 806, 807): "Counsel for the applicant submitted that on its true construction s 1 (2) of the 1971 Act conferred on those to whom it applied a right to come and go comparable with that given to patrials. The submission is, in my view, based on a misapprehension of the purpose of the 1971 Act. The 1971 Act draws a fundamental distinction between those who have the right of abode and everyone else. The right of abode carries with it the freedom to come and go into and from the United Kingdom without let or hindrance. This freedom is, in express language, given to no one other than patrials, and those Commonwealth citizens who can claim the benefit of s 1 (5). But, so the argument runs, s 1 (2) confers on a class of people, of whom it is said the applicant is one, an entitlement which is the equivalent of this freedom. The subsection reads as follows:

'Those not having that right may live, work and settle in the United Kingdom by permission and subject to such regulation and control of their entry into, stay in and departure from the United Kingdom as is imposed by this Act; and indefinite leave to enter or remain in the United Kingdom shall, by virtue of this provision, be treated as having been given under this Act to those in the United Kingdom at its coming into force, if they are then settled there (and not exempt under this Act from the provisions relating to leave to enter or remain.)'

The first sentence makes clear that those who do not have the right of abode may live work and settle in the United Kingdom only by permission and subject to the regulation and control imposed by the 1971 Act. The second sentence appears to deal with a class of persons who, not having this right, need permission to be here; for they are to be treated as having been given indefinite leave to enter or remain in the United Kingdom. 'Leave to enter or remain' is a species of 'permission': it is not an apt phrase to describe presence here as of right. Save for the adjective 'indefinite' there could be no doubt but that the leave given by the subsection was subject to the rules laid down by the Secretary of State under s 3 (2) regulating the entry into and stay in the United Kingdom of persons required by the 1971 Act to have leave to enter, and to the other provisions of the Act dealing with leave to enter, e g s 3 (4) whereby a person's leave lapses on his going abroad. Does the qualifying adjective 'indefinite' remove the s 1 (2) type of leave out of the range of the general provision of the 1971 Act regulating leave to enter or remain here? In my opinion, it does not. Indefinite leave is to be contrasted with limited leave to enter or remain: see, forexample, s 3 (5). It means no more than leave for an indefinite period. The 1971 Act treats entry as a moment at which conditions, including a condition as to time of stay, may be attached to leave to enter; there is nothing inconsistent with the tenor of the Act in construing 'indefinite leave to enter' as meaning leave to enter for an unlimited period of time. But, conversely, it would be very odd if the Act used the language of 'leave' to describe a right which was outside the control of the Act; and I do not so read the subsection. Accordingly, the indefinite leave given by s 1 (2) is only one sort of the permission available under the Act to those not having the right of abode, and is subject to the regulation and control of entry imposed by the Act. Such regulation is to a large extent to be found in the Immigration Rules (1972) made under s 3 (2), r 51 of which provides:

'A passenger who satisfies the Immigration Officer that he was settled in the United Kingdom at the coming into force of the Act, and that he has been settled here at any time during the 2 years preceding his return, is to be admitted for settlement..."'

n18 [1971] 2 ALL ER 1016; [1971] 1 WLR 859. The facts in the appeal of Mazail Singh, n19 which was allowed by the adjudicator, showed that the appellant had lived in the United Kingdom free from conditions from 1961 until 16 October 1971, when he travelled to India, and that some 2 years and 3 months later he applied for an entry certificate as a returning resident. On 1 January 1973 he was therefore not in the United Kingdom. In dismissing the appeal of the entry clearance officer the Tribunal said in that case: n19 TH/4480/74 (591) (unreported).

"It appears to us that under the Act and Rules 'settled' is synonymous with 'ordinarily resident' and that provided an intending returning resident was ordinarily resident in the United Kingdom on 1 January 1973 and at any time during the two years immediately preceding his return or his attempt to return, as in the subject case, he has the right to return as a returning resident to the United Kingdom. On the facts here it appears to us that the respondent was ordinarily resident and hence settled in the United Kingdom on 1 January 1973 and that he never lost this status. Hence under the first sentence of para 51 of HC 79 he had the right to re-enter the United Kingdom as a returning resident."

In the light of the Court of Appeal decision in Mughal n20 it appears that the case of Mazail Singh was incorrectly decided and we feel sure that the Tribunal would have found otherwise had its attention been drawn to the Mugha decision. n20 [1973] 3 ALL ER 796. This case therefore falls to be decided under the provisions of the second sentence of para 51 and para 52. The requirements of the second sentence of para 51 are similar to those in para 48 of Cmnd 4298 under which the Tribunal decided the appeal of Hashim. n21 In that case the Tribunal said (at p 79): n21 Hashim v Entry Clearance Officer, Dacca, [1974] Imm A R 75; TH/2293/73 d 14.11.73.

"The Tribunal accepts, as we did in the case of Shahbaz Khan n22 quoted before us, that the appellant on his admission unconditionally in 1963 became ordinarily resident here, but we cannot accept that he continued to be so resident for immigration purposes when he left this country to return to Bangladesh and remained there more than 2 years. Nor can we agree with Mr Ali that in the normal case there is any discretion to extend the two-year period within the immigration rules. The type of case referred to at the end of para 48 which might be construed to give some discretion to an Immigration Officer does not apply to the appellant. We are satisfied that the appellant cannot bring himself within the requirements of para 48 and that his appeal falls to be decided under para 49."

n22 [1972] Imm A R 172 at pp 175-176. We agree with that decision and we cannot accept that the appellant in the case before us, having been away from the United Kingdom for more than 2 years, can meet the requirements of para 51 of HC 79. Mr Chishti did not argue the case under para 52, but on the facts available we are satisfied that the appellant cannot succeed under that paragraph.

DISPOSITION:

Appeal dismissed.

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