Man Chiu Yu v. Secretary of State for the Home Department

MAN CHIU YU v SECRETARY OF STATE FOR THE HOME DEPARTMENT, TH/71399/80(2179)

Immigration Appeal Tribunal

[1981] Imm AR 161

Hearing Date: 8 October 1981

8 October 1981

Index Terms:

Patriality -- 'Right of abode' -- Residence in the United Kingdom by citizen of the United Kingdom & Colonies (Hong Kong) from August 1964 (when aged 20) to March 1973 -- Student from 1964 to 1971 dependent financially upon father in Hong Kong -- Summar vacations spent in Hong Kong in 1965, '66, '67, '68 and '70 -- Full-time long-term employment taken during period July 1971 to March 1973 -- Return to Hong Kong in March 1973 -- No evidence of appellant's actual intentions at time of studies and in staying on and taking employment on conclusion of his studies -- 'Ordinary residence' in the United Kingdom for 5 year period not established on application in 1980 for certificate of patriality -- Cases of Kanji (C.A. 12.4.78), Nilish Shah and Jitendra Shah (QBD 18.7.80) considered -- Immigration Act 1971, s 2(1)(e).

Held:

The appellant, a citizen of the United Kingdom and Colonies (Hong Kong), had been admitted to the United Kingdom without restrictions in August 1964. He was then 20 years old. From that time until July 1970 his father in Hong Kong maintained him here as a student. He returned to his home in Hong Kong for the summer vacations in 1965, 1966, 1967, 1968 and 1970. In July 1971, after obtaining his degree in estate management, he took full-time employment here appropriate to his qualifications and he continued in that employment till March 1973, when he returned to Hong Kong. In 1980 he applied in Hong Kong for a certificate of patriality, claiming that he had the 'right of abode' in the United Kingdom, having spent more than 5 years in this country without restrictions on his stay and that this period was the 'ordinary residence' set out in s 2(1)(c) of the Immigration Act 1971 n1 entitling him to the 'right of abode'. n2 His application was refused on the ground that for the greater part of the period August 1964 to March 1973 he was in this country as a student and not ordinarily resident for the purpose of acquiring patriality. n1 Section 2(1)(c) is set out on p 163, post. n2 Section 1(6) of the 1971 Act states that "the word 'patrial' is used of persons having the right of abode in the United Kingdom". Section 3(8) states that "When any question arises under this Act whether or not a person is patrial... it shall lie on the person asserting it to prove that he is"; and under sub-s (9) of s 3, "A person seeking to enter the United Kingdom and claiming to be patrial by virtue of section 2(1)(c)... shall prove it by means of such certificate of patriality as may be specified in the immigration rules, unless [an exception not relevant in the present case]...". Section 33(1) of the 1971 Act defines "certificate of patriality" as "such a certificate as is referred to in s 3(9)". The adjudicator to whom he appealed dismissed his appeal, inter alia because there was no evidence of the appellant's actual intentions while he was studying here, nor as to why he stayed on in employment after his studies and then in March 1973 returned to Hong Kong; in the absence of such evidence 'ordinary residence' in this country could not be found. On further appeal to the Tribunal, Held (dismissing the appeal): The adjudicator had rightly found that there was no evidence of an intention to settle here during the years 1964 to 1973, and the appellant was properly refused a certificate of patriality as not having the 'right of abode' as claimed on the ground of 'ordinary residence' under s 2(1)(c) of the Immigration Act 1971, for the following reasons: (i) the appellant was here during the period 1964-1970 for the specific purpose of education, and during the years 1964-1968 his 'centre of gravity' was in Hong Kong; Cases of Nilish and Jitendra Shah ([1980] 3 All ER 679) and Cicutti ([1980] 3 All ER 689), considered. n3 n3 R v London Borough of Barnet, ex p Shah & anr, [1980] 3 All ER 679; [1981] 2 WLR 86 (QBD); Cicutti v Suffolk County Council, [1980] 3 All ER 689; [1981] 1 WLR 558 (Ch D). (ii) the fact that the appellant after his studies took full-time employment here, paid national insurance and got himself a driving licence, staying on here some 20 months till March 1973, did not necessarily show that he intended to make this country his home.

Counsel:

A. McGeachy of the United Kongdom Immigrants Advisory Service, for the appellant. B. Hunter for the respondent. PANEL: P. N. Dalton Esq (Vice-President), Mrs Bonham-Carter, Mrs J. D Caine

Judgment One:

THE TRIBUNAL: The appellant is a citizen of the United Kingdom and Colonies (Hong Kong) born on 14 July 1944. He applied in Hong Kong on 6 February 1980 for the issue of a certificate of patriality. Various documents were produced in support of the application and the applicant was interviewed by the entry clearance officer, who then referred the application to the Home Office for a decision. The matters the Secretary of State took into consideration are set out as follows in the Home Office statement:

"The appellant was claiming to be patrial under s 2(1)(c) of the Immigration Act 1971 by virtue of his residence in the United Kingdom from 28 August 1964 to 14 March 1973. He had undertaken studies from 1964 to 1971 (having undertaken employment with a firm of Chartered Surveyors as part of his sandwich course) and had taken full-time long-term employment from 19 July 1971 to 4 March 1973. The Secretary of State noted however that of the 8 1/2 years that the appellant had spent here the greater part of his time was spent as a student; that whilst studyting he had been dependent financially upon his father in Hong Kong; and that he had returned to Hong Kong for his summar holidays after each of his first 4 years of study as well as in 1970. Taking these points into consideration the Secretary of State was not satisfied that the appellant was ordinarily resident for the purpose of acquiring patriality during the stated period. He therefore directed the entry clearance officer to refuse the application, which he did on 16 May 1980."

The appellant appealed to an adjudicator, Mr E. J. T. Housden. In his determination the adjudicator referred to s 2(1) of the Immigration Act 1973 which reads in part: "2(1) 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 past five years or more." It has been conceded at the hearing of the appeal before the adjudicator that the appellant was a citizen of the United Kingdom and Colonies who came here before the coming into force of the 1968 Commonwealth Immigrants Act and was here free from any restrictions on his stay. His period of residence in the United Kingdom lasted from August 1964 to March 1973, with some holidays in Hong Kong. The adjudicator said that because the appellant was here for much more than five years without any time restriction on his stay, the only matter he, the adjudicator, had to decide was whether the appellant was 'ordinarily resident' here. Mr Hedges on behalf of the respondent cited the case of Kanji (Court of Appeal, 12 April 1978) n4 in which it was held that a schoolgirl of Asian origin and Tanzanian citizenship who attended school in the United Kingdom but spent some (but not all) of her holidays in Tanzania, was not ordinarily resident in the United Kingdom for the purpose of s 7(1)(b) of the Act, which protects certain persons ordinarily resident in the United Kingdom from deportation. The adjudicator, for reasons which he set out in his determination, did not think Kanji was a particularly apt precedent, inter alia because it was possible to distinguish between the case of a 13-year old girl and that of an adult student in relation to his of her 'home' and, therefore, place of ordinary residence. The adjudicator did not think it necessarily followed that, because the appellant was a student in this country (from 1964 until July 1970) and made annual visits to Hong Kong, of between 45 and 71 days in length from 1965 to 1968 inclusive, he was not ordinarily resident here. The adjudicator quoted an extract of the judgment of Somervell LJ in the case of Macrae v Macrae n5 in which it was stated "ordinary residence can be changed in a day". n4 Re N. A. Kanji, an application for a writ of Habeas Corpus, (unreported). n5 [1949] 2 All ER 34; [1949] p 397, (CA). The adjudicator said that he did not know why Mr Yu chose to stay on in this country when his studies had ended after he had obtained his degree in estate management in July 1971; his reasons for doing so would provide the key to this appeal. If he intended settling here (and had so intended throughout or for the greater part of his period of studies), he would probably have been ordinarily resident here. If on the other hand it was always his intention to return to Hong Kong and he was simply earning a little capital or staying here for some other temporary purpose, then he could not have been ordinarily resident here. Mr Housden said he had no evidence of the appellant's actual intentions during the time he was employed by the GLC in a post appropriate to his qualifications, nor did he know why in March 1973 he gave up that employment and went back to Hong Kong. On the evidence before him the adjudicator could not find that the appellant was ordinarly resident in the United Kingdom before his departure in 1973 and it followed that he could not find that the appellant was patrial as defined in s 2(1)(c) of the Act. Leave to appeal to the Tribunal having been obtained, Mr A McGeachy of the UKIAS who appeared for Mr Yu, argued that the entry clearance officer had applied the wrong test and looked at the wrong matter. It was submitted that the correct test is set out in two cases. The first of these cases was R v London Borough of Barnet, ex p Shah & anr n6. In that case it was necessary to decide the meaning of the words 'ordinarily resident' and we note that early in the judgment of the Divisional Court, ORMROD LJ said: "To determine the 'ordinary' meaning of 'ordinarily' is something of a linguistic feat in itself. Nor is the word 'resident' at all easy". The appeal concerned two students Nilish Shah and Jitendra Shah who were not related. The evidence showed that Nilish Shah came to this country for the purpose of being educated here and settling here; Jitendra came to study here for a limited period and then return to his own country. As the headnote of the case in the All England Law Report shows the phrase 'ordinarily resident' in the Local Education Authority Awards Regulations (SI 1979 No 889) was used to distinguish between person who were resident for general (or ordinary) purposes and those who were resident for a specific, special or limited purpose. Consequently the court found Nilish 'ordinarily resident' here and Jitendra not. It was stated in the judgment: "In our judgment, therefore, an important though not the only element to be considered in ascertaining whether an individual is 'ordinarily resident' in the United Kingdom for the purpose of reg 13(a) (of the Local Education Authority Award Regulations 1979) is the purpose of, or the reason for his presence in the United Kingdom and his intention in coming and remaining here. "Why is he in this country', is a relevant question. If the answer is for a specific or limited purpose rather than the general purpose of living here, he will not be ordinarily resident here." n7 n6 [1980] 3 All ER 679; [1981] 2 WLR 86. n7 Nilish Shah was born in Kenya in August 1959. In August 1976 his father obtained from the British High Commission in Nairobi a Special Voucher entitling him to enter the United Kingdom for settlement within the meaning of the Immigration Act 1971; Nilish was himself given an entry certificate marked 'Accompany Parents-Settlement'. Nilish and his parents arrived together at Heathrow the same month and were given indefinite leave to enter. Nilish entered upon a period of study at colleges of further education, and in 1979 he was offered a place at Manchester University for a B.Sc. degree course. His parents had returned to Kenya within a few weeks of their arrival in this country, and Nilish visited them during his summer vacations, but during the term he lived in a house in New Southgate which belonged to his father, grandfather and an uncle. In August 1979 he applied for a local education authority award, this was refused by the London Borough of Barnet, substantially on the ground that he had not been 'ordinarily resident' in the area during the preceding 3 years because he had entered the United Kingdom when aged 17 as the dependent of his parents and they had returned to Kenya, and it appeared to the authority that his 'real home' was in Kenya. The Queen's Bench Divisional Court, to which Nilish applied for judicial review of the local education authority's decision, held that there was no evidence on which the authority could decide that Nilish was ineligible for an award under reg 13(a) of the Local Authority Award Regulations 1979: the 'real home' test by itself was not particularly helpful, and in the absence of any suggestion that Nilish's parents did not intend to settle in the United Kindom, the only proper inference appeared to be that Nilish came to this country for the purpose of settling here, i.e. for all ordinary purposes of living and not for the specific purpose of being educated here. Jitendra Shah, on the other hand, had been admitted to the United Kingdom on a student entry certificate granted to him in Nairobi. He was at the time of his admission also 17 years old, and he had been given extension of stay to enable him to continue his studies, but on each occasion on condition that he did not enter employment or engage in any business; in other words, he had permission to remin only as a student and for a limited period. His parents lived in Kenya, and in the United Kingdom he had been living at the home of an older brother. The Divisional Court held that in his case the local education authority had properly found that he was not 'ordinarily resident' in this country. Per curiam ([1980] 3 All ER at p 688): "The contrast between two cases brings out very clearly the difference between 'resident' and 'ordinarily resident' in the legislative context of reg 13(a). Nilish's answer to the question 'Why are you here?' would be 'To live, to study and to remain'; Jitendra's answer could only be 'To study, to qualify if possible and then to leave'.

"We are fortified in our construction of this regulation by the reflection that it is almost inconceivable that Parliament could have intended to bestow major awards for higher education, out of public funds, on person permitted to enter this country on a temporary basis, solely for the purpose of engaging in courses of study at their own expense. Such an improbable result is not to be accepted if it can properly be avoided."

The decision of the Divisional Court in respect to Nilish and Jitendra Shah, allowing the appeal of the former and dismissing the appeal of the latter was upheld by the Court of Appeal on 10.11.81 (R v Barnet London Borough Council, ex p Shah & other appeals). In the Court of Appeal four other student award cases were also considered, including one in which the student concerned (Miss Joanne Ablack) was held to be entitled to receive a local education authority award notwithstanding that she was the daughter of a former West Indian diplomant in the United Kingdom who had returned to his own country; she, however, had the right of abode, having been born in the United Kingdom, and she had continued to live here after her parents' return to their home country. Extracts from the judgments of LORD DENNING MR. EVELEIGH and TEMPLEMAN LJJ are reproduced in the Note commencing on p 194, post. There was evidence that Mr Yu was educated for some years in this country during which time he returned each year to his home in Hong Kong. So he was here for the specific purpose of education but the adjudicator could find no evidence of his actual intentions during that time. Mr McGeachy urged that there was evidence that Mr Yu intended to stay in this country because he got a full-time job, paid national insurance and got a driving licence. We agree, however, with Mr Hunter that such actions did not necessarily show that the appellant intended to make this country his home. The adjudicator carefully considered this matter and in our view rightly found that there was no evidence about the appellant's intentions on which it could be found that the appellant had intended staying here. The second case to which Mr McGeachy referred was that of Cicutti v Suffolk County Council n8. That case also involved an application for a local education authority award for university study; and in that case the phrase "the appellant's centre of gravity" was used by Sir Robert Megarry V-C when considering whether the Italian student applicant was 'ordinarily resident' in this country or in Rome, where his parents lived. On the facts of that case he concluded:

"The mere existence of foreign connections seems to me to be per se of small importance in considering where a person is 'ordinarily resident'; what matters far more is where he moves and dwells and has his being, and for what purpose he does so. His (Mr Cicutti's) centre of gravity, once in Rome and Italy, came to be in Ipswich and the United Kingdom."

n8 [1980] 3 All ER 689; [1981] 1 WLR 558 ibid at p 695. Cicutti's Case was cited and overruled in the Court of Appeal in R v Barnet London Borough Council, ex p Shah & other appeals, [1982] 1 All ER 698; [1982] WLR. Extracts from the judgments in the Court of Appeal in that case are given in the Note beginning on p 194, post. It seems to us that it could equally well be argued that the appellant's "centre of gravity" during the years 1965 to 1968 was Hong Kong, where his parents were and where he went regularly after each school year. For these reasons we find that the adjudicator properly dismissed the appellant's appeal and this appeal is consequently dismissed.

DISPOSITION:

Appeal dismissed.