Secretary of State for the Home Department v. Patel (N.N.)

SECRETARY OF STATE FOR THE HOME DEPARTMENT v PATEL (N.N.), TH/47910/79(1688)

Immigration Appeal Tribunal

[1979-80] Imm AR 106

Hearing Date: 9 January 1980

9 January 1980

Index Terms:

"Indefinite leave to enter or remain" -- Commonwealth citizen settled in the United Kingdom on 1 January 1973 -- Not a patrial -- Departure from United Kingdom -- Whether right of re-entry without leave -- Immigration Act 1971, s 1(2), s 3(1).

Returning resident -- Original entry on employment voucher in January 1971 -- Return to India in October 1973 -- Two months' residence again in 1975 (September to November)' solely to maintain returning residence status' -- No employment taken -- Return to India -- Whether properly refused returning resident's entry clearance in October 1977 -- Whether had been 'ordinarily resident' in the United Kingdom during previous two years -- Whether could invoke 'returning resident' rule in November 1977 after entry as 'visitor' -- HC 79, para 51.

Held:

P was a citizen of India. He came to the United Kingdom in January 1971 with an employment voucher and he was given leave to enter for an indefinite period; his wife and youngest child joined him in June 1972. On 20 October 1973 P and his family left for India. On 28 September 1975 P returned to this country for two months with a view to maintaining his status as a 'returning resident'; he returned to India on 28 November without having entered into any employment here. On 5 October 1977 he obtained a 'visit' entry clearance from the entry clearance officer in Bombay, and then a few days later (on 14 October) applied for a 'returning resident' entry clearance; this was refused. On 14 November 1977 he arrived in the United Kingdom and was admitted on his visitor's entry clearance. On 17 November he applied for the conditions attached to his leave to be revoked. This application was refused and he appealed to an adjudicator on two alternative grounds, (1) that he was settled here when the Immigration Act 1971 came into force on 1 January 1973, and accordingly must "be treated as having been given" indefinite leave to enter or remain in the United Kingdom by virtue of s 1(2) of the Act n1; (2) that he was entitled to be regarded as a 'returning resident' under para 51 of HC 79 n2. n1 Section 1(2) of the 1971 Act is set out in the determination on p 108, post. n2 Paragraph 51 of HC 79 (omitting words not here material) provides as follows: "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 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 [1979-80] Imm AR 106 not been away for longer than 2 years." The adjudicator allowed P's appeal, holding on the first ground that s 1(2) of the Act gave P the right to have his conditions revoked. The adjudicator found against P on the second ground. On appeal to the Tribunal by the Secretary of State it was accepted that P was settled in the United Kingdom on 1 January 1973, but it was contended that once having left this country he became subject to immigration control and could not re-enter without leave in accordance with s 3(1) of the Act n3; were it otherwise, a man settled here on 1 January 1973, who was not a patrial, could leave the country, stay away some 30 or 40 years, and then claim the right to return. For P it was submitted that s 1(2) specifically provided for people in P's position, and to give effect to its express words P must be treated as if he has indefinite leave, and the adjudicator had been right to hold that his conditions should be revoked. n3 Section 3(1) of the 1971 Act is set out on p 108, post. Held: (i) allowing the Secretary of State's appeal, section 1(2) of the Act did not say that persons who were settled here on 1 January 1973 were to be treated "as having indefinite leave to enter or remain" but as "having been given" such leave; thus, once having left this country, they did not have a permanent right to return as they wished: they became subject (if not patrials) to s 3(1) of the Act; (ii) on the facts found by the adjudicator as to the nature, period and timing of P's visit to the United Kingdom between October 1973 and 14 November 1977 (see p 109, post), the adjudicator had not misdirected himself in law when he held that P had not been 'ordinarily resident' here at any time during the two years preceding 14 November 1977 and therefore was not admissible as a returning resident under para 51 of HC 79.

Counsel:

D. Massey for the Secretary of State. J. Harris, counsel for the respondent/applicant. PANEL: D. L. Neve Esq (President), Miss P. G. Liverman, Dr S. Torrance

Judgment One:

THE TRIBUNAL: The Secretary of State appeals to the Tribunal against the determination of an adjudicator (Mr W. E. M. Dawson), allowing the appeal of Nanubhai Patel (the applicant) against a refusal to revoke the conditions attached to his leave to be in this country. The facts of this case are not in dispute and can be summarised as follows: The applicant (who is a citizen of India) first arrived in this country on 24 January 1971 with an employment voucher. He was then given leave to enter the United Kingdom for an indefinite period. He remained in this country (apart from an absence of three days in July 1972) until 20 October 1973, being joined by his wife and youngest child in June 1972. [1979-80] Imm AR 106 The Immigration Act 1971 came into force on 1 January 1973. On 20 October 1973 the applicant, his wife and youngest child, all left for India. On 28 September 1975 he returned to this country for two months, solely in order to maintain his status as a 'returning resident', after which he returned to India. On 5 October 1977 he obtained a 'visit' entry clearance from the British Deputy High Commission in Bombay. Nine days later -- on 14 October 1977 -- he returned to the High Commission and applied for 'returning resident' entry clearance. This was refused but his 'visit' entry clearance was not cancelled and he arrived in the United Kingdom on 14 November 1977. Three days later he applied for the conditions attached to his leave to be revoked. This application was refused. He appealed to an adjudicator against the refusal; his appeal was allowed, and against Mr Dawson's determination the Secretary of State now appeals to the Tribunal. Two grounds of appeal were advanced before the adjudicator -- first, that the applicant was settled here on 1 January 1973, when the Immigration Act 1971 came into force, and accordingly must be treated as having been given indefinite leave to enter or remain by virtue of s 1(2) of the Act; secondly, in the alternative, that he was entitled to be regarded as a 'returning resident' under para 51 of HC 79. The adjudicator found in favour of the applicant on the first ground and against him on the second. He found for him on the first ground because he was satisfied that the appellant was settled in this country on 1 January 1973 and that s 1(2) of the Act gave him the right to have his conditions revoked. The Secretary of State's grounds of appeal against this finding are: --

"The adjudicator has misdirected himself as to the effect in law of indefinite leave to enter or remain conferred by the Immigration Act 1971, section 1(2)."

Section 1(2) reads as follows: "(2) Those not having that right [the right of abode] 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). Mr Massey does not complain against the adjudicator's finding of fact that the applicant was settled here on 1 January 1973, but he submits that, once having left this country, the applicant again became subject to the immigration regulations. In his submission to hold otherwise would be to ignore s 3 of the Act, sub-s (1) of which reads: [1979-80] Imm AR 106 "(1) Except as otherwise provided by or under this Act, where a person is not patrial -- (a) he shall not enter the United Kingdom unless given leave to do so in accordance with this Act; (b) he may be given leave to enter the United Kingdom (or, when already there, leave to remain in the United Kingdom) either for a limited or for an indefinite period; (c) if he is given a limited leave to enter or remain in the United Kingdom, it may be given subject to conditions restricting his employment or occupation in the United Kingdom, or requiring him to register with the police, or both." Mr Massey points out that, if it were otherwise, a man settled here on 1 January 1973 could leave, stay away for thirty or forty years, and then claim the right to return. In reply, Mr Harris submits that s 1(2) means exactly what it says and effect must be given to its express words. It specifically provides that persons in the position of the applicant shall be treated as having been given indefinite leave to enter or remain. Thus the applicant must be treated as if he has indefinite leave and the adjudicator's determination was quite right. In our view this is not an easy point to decide, but after consideration we have come to the conclusion that a purpose of s 1(2) is to deal with the immigration status of persons in this country when the Act came into force. Persons settled here at that time are to be treated as having been given indefinite leave to enter or remain. The underlining is ours, and it is to be noted that the Act does not say "as having indefinite leave to enter or remain". We were somewhat worried as to why the words "to enter" were added to the words "or remain" in view of the fact that the sub-section applied to persons already settled here; but if one approaches the section as we have tried to suggest the reason becomes clear -- such non-patrials' presence in this country is thereby regularised as if they had been admitted with indefinite leave, and the status of such persons -- which might otherwise remain in limbo, as it were -- is thereby defined. This is not to say that, once having departed these shores, they have a right for the rest of their lives to return as they wish. Once having left, s 3 of the Act must come into force. For these reasons we consider that the adjudicator misdirected himself in this regard. There remains the question of the appellant's admissibility as a returning resident under paragraph 51 of HC 79. No cross-appeal has been filed on behalf of the appellant against the adjudicator's determination in this respect, but in fairness we invited the parties to address us in this connection. The adjudicator's determination of this point reads as follows: "4. As regards the second proposition for the appellant it turns on whether the appellant was settled here as defined in para 1 of HC 79 during the two years prior to his arrival here on 14 November 1977. In fact of the period 14 November 1975 to 14 November 1977 the appellant had been here for only 14 days as part of a visit from 28 September 1975. When there is added to this the fact that the appellant, since leaving the United Kingdom in October 1973, had by 14 November 1977 been here for only 2 months (28 September until 28 November [1979-80] Imm AR 106 1975) during which he had not worked, it seems to me impossible to sustain the proposition that the appellant had at any time during the 2 years prior to 14 November 1977 been ordinarily resident here. I would have reached this conclusion without taking into account the reason for the appellant's 2-month visit in 1975 which I accept from the explanatory statement was that it was solely to retain his status as a returning resident. On taking this matter into account I consider that it provides further support for the view that the 14 days the appellant spent here in November 1975 was not a period during which the appellant was ordinarily resident here. The case for the appellant under paragraph 51 of HC 79 in my opinion fails." There is some doubt as to whether para 51 of HC 79 could (after entry as a visitor) properly be invoked at all in view of the Tribunal's determination in the appeal of Facey n4, heard on 26 October last, but -- even accepting for the purposes of argument Mr Harris's submission that the facts of this appeal distinguish it from Facey -- it seems to us that the adjudicator's findings of fact were adequately supported by the evidence and we are unable to find that he misdirected himself as to the law in this connection. n4 Secretary of State for the Home Department v Facey & anr, TH/32001/78(1638) (unreported). Facey's Case was later cited in the case of Goodison v Secretary of State for the Home Department TH/30424/78(1718) which is reported at [1979-80] Imm A R 122. For the facts in Facey's Case and the reasons for the Tribunal's decision in that case, see Goodison's Case, post. For the reasons we have given with regard to the other ground of appeal, however, this appeal is allowed and the Secretary of State's refusal is to stand. n5 n5 The doubt expressed in the penultimate paragraph of this determination was later resolved by the Divisional Court. The case was that of a Pakistan citizen who had been admitted as a visitor under the Rules for Control On Entry (HC 81). The Court held that the lady concerned could not later claim the status of a 'Returning Resident' under the Rules for Control After Entry (HC 82). See the judgment of LORD LANE CJ in R v Immigration Appeal Tribunal, ex p Aisha Khatoon Ali which is reported [1979-80] Imm A R 195.

DISPOSITION:

Appeal allowed.

SOLICITORS:

Suchak & Co, Wembley.