Chopra v. Secretary of State for the Home Department

CHOPRA v SECRETARY OF STATE FOR THE HOME DEPARTMENT, TH/56948/79(2021)

Immigration Appeal Tribunal

[1981] Imm AR 70

Hearing Date: 30 April 1981

30 April 1981

Index Terms:

Returning resident -- Previous unconditional residence -- 'Returning resident' status acquired by continuous residence during years 1970-1973 -- Return to India with family in September 1973 -- Three short periods (8 months) in United Kingdom thereafter prior to re-entry again sought as returning resident in June 1979 -- Purpose of short stays to retain immigration status of 'returning resident' -- Real home with family in India -- Whether no longer "ordinarily resident" in the United Kingdom and accordingly properly refused settlement as a 'returning resident' in June 1979 -- HC 79, para 51 -- Immigration Act 1971, s 2(3)(d), s 33(1).

Held:

The appellant, a citizen of India, sought admission to the United Kingdom in June 1979 as a "returning resident" under para 51 of HC 79. n1 He had originally acquired that immigration status by reason of continuous residence between January 1970 and October 1972 and a further stay (9 months) in 1973; but in September 1973 he had returned with his family to India, and since then he had spent only 3 short periods (totalling 8 months) in this country. When interviewed in June 1979 he admitted that those short stays had been with a view to maintaining his status as a "returning resident". His application to be accepted again as a returning resident in June 1979 was refused, the Secretary of State taking the view that the appellant's real home was not in the United Kingdom but in India and, therefore, that he was not ordinarily resident in this country and accordingly not qualified for settlement under para 51 of HC 79, nor entitled to remain here under any other immigration rule. n1 Paragraph 51 of HC 79 is set out in footnote 2. The adjudicator to whom he appealed confirmed the decision of the Secretary of State, and the appellant appealed to the Tribunal. Held (dismissing the appeal): The Secretary of State had properly refused the appellant's application for indefinite leave to remain in this country, because it was clear on the facts that the appellant's real home was in India and, accordingly (following the Tribunal's decision in Moksud Ali v Secretary of State for the Home Department TH/55205/79(1952) d 28.1.81), that he was not 'ordinarily resident' in the United Kingdom at the time he left this country in 1977 so as to qualify for settlement under para 51 of HC 79; nor (as the Secretary of State also decided) did he qualify to remain under any other immigration rule. Dictum of WOOLF J in R v Secretary of State for the Home Department, ex parte Abu Baker (DC/442/8 d 19.3.81, unreported), on the meaning of the words "ordinary residence" in the context of immigration law, considered and applied (see p 73, post).

Counsel:

A. McGeachy of the United Kingdom Immigration Advisory Service, for the appellant. B. Hunter for the respondent. PANEL: P. N. Dalton Esq (Vice-President), L. W. Chapman Esq, Dr L. P. De Souza

Judgment One:

THE TRIBUNAL: The appellant Ashok Kumar Chopra is a citizen of India (born on 19 January 1940) whose application for the removal of the conditions of his stay in the United Kingdom was refused by the Secretary of State on 27 July 1979. Mr Chopra last arrived in the United Kingdom on 11 June 1979. According to the Home Office statement which was prepared for his later appeal to an adjudicator he arrived without an entry clearance but claimed to be a "returning resident"; n2 the immigration officer was not satisfied that he qualified for this status, but as he also said he wanted to stay for 5 or 6 months with a friend in Liverpool 15 he was given leave to enter for 6 months; at the same time the immigration officer advised him that if he wished to pursue the matter of returning resident status he should do so with the Home Office n3. A few days later (namely on 21.6.79) solicitors acting for Mr Chopra applied for the time limit on his stay to be removed. n2 The claim was made under para 51 of HC 79 which 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 (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 tha he has not been away for longer than 2 years." n3 It would appear that the immigration officer may have acted under para 70 of HC 79 which provides as follows: "Where a passenger is admitted but is aggrieved by a time limit or condition imposed, or it is clear that it will leave him dissatisfied, it should be explained that his proper course is to apply to the Home Office for a variation of his leave, and that he will have a right of appeal if variation is refused." Home Office records showed that the appellant initially entered the United Kingdom on 9 August 1968, when he was admitted for 6 months as a visitor; that in February 1969 application was then made for him to engage in employment; that this was refused, and that the appellant embarked from the United Kingdom on 28 June 1969. The appellant's passport showed the following periods of stay in the United Kingdom. Arrived 21.1.70 Embarked 29.10.72 Arrived 6.1.73 Embarked 18. 9.73 Arrived 25.9.73 Embarked 18.10.73 Arrived 31.5.75 Embarked 29. 8.75 Arrived 13.5.77 Embarked 13. 9.77Arrived 11.6.79 (admitted for 6 months) The reasons for the refusal of Mr Chopra's application in July 1979 are stated by the Home Office as follows:

"On his arrival in the United Kingdom on 11 June 1979 the appellant had told the immigration officer that he was a 'returning resident' and when questioned about previous periods of stay here the appellant admitted that these were made periodically in order to maintain his residence status. His family had returned to India in 1973, and the only assets which he held in the United Kingdom were funds in a bank account and also an ice-cream van. Under the Immigration Rules a passenger 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 two years. The Secretary of State noted that when the appellant embarked on 13 September 1977 he had only been in the United Kingdom for a matter of four months and, taking into account all the relevant facts which indicated that the appellant's real home was not in the United Kingdom, the Secretary of State could not be satisfied that he was ordinarily resident here when he left and that the appellant qualified for leave to remain under the Immigration Rules."

The appellant's appeal to the adjudicator Mr A G Hawthorn was, at the request of his representative Mr D W Pilkington of the United Kingdom Immigrants Advisory Service, dealt with on the basis of the evidence already before the adjudicator and a written submission in which Mr Pilkington sought to distinguish the facts of the appeal from the facts in Secretary of State for the Home Department v Facey n4. The adjudicator in his determination dismissing the appeal referred to various cases in which the meaning of the word "settled" in the relevant rule -- para 51 of HC 79 -- was discussed and also to the meaning of the words "ordinarily resident" n5, and he concluded that the appellant had not established that at the relevant dates he was permanently resident here. The facts contained in the appeal papers, the adjudicator said, did not in his view establish the appellant's claim. It appears that the adjudicator referred by mistake to "permanent" residence; such type of residence is not referred to in the rule and the appellant's claim was that he was "ordinarily" resident in this country n5. n4 In Facey's Case, as also in Goodison's Case, (see [1979-80] Imm. A.R. 122), entry had been sought and obtained in the capacity of 'visitor', and claims to be regarded as returning residents were not raised till afterwards. The Tribunal held, inter alia, that a claim to 'returning resident' status could not be made in this country after entry had been sought and obtained in the category of visitor. This was later confirmed by the Divisional Court in the case of Aisha Khatoon Ali, [1979-80] Imm. A.R. 195. n5 Section 33(1) of the Immigration Act 1971 provides that the word 'settled' "shall be construed in accordance with section 2(3)(d)" of the Act; and s 2(3)(d) states that "... 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". Mr McGeachy for the appellant on his appeal to this Tribunal submitted that Mr Chopra had had a long period of residence in the United Kingdom, that he still had a bank account here and also an ice-cream van, and that he qualified for readmission as a returning resident under the first sentence of para 51 as a person who has been settled here "at any time during the 2 years preceding his return". Mr Hunter for the respondent submitted that the appellant fell fairly and squarely under the second sentence of para 51. Mr Hunter referred to the Divisional Court case of R v Secretary of State for Home Affairs ex parte Abu Bakar n6. In that case there was no dispute that Mr Abu Bakar was settled in the United Kingdom at the time of the coming into force of the Immigration Act 1971, and the dispute had been as to whether he was settled at any time during the two years preceding his return on 12 September 1980. Mr Abu Bakar first came to this country in 1963 and had started a catering business and become ordinarily resident here. He went to Bangladesh in August 1972 after he had been continuously resident here for about five years. Since then he had, more than once, returned to the United Kingdom and then left for Bangladesh, where he had stayed for much longer periods though he had always returned here within the required two-year period. On each return he had been given indefinite leave to enter. Finally, he left the United Kingdom on 21 March 1978 and returned on 17 March 1980, and on that occasion he was given only a limited leave -- to remain for six months. In fact he left after 12 days. Then on 12 September 1980 he returned, again seeking indefinite leave to enter; and this application was refused on 19 September and wsas the subject of his application in the Divisional Court. Counsel on his behalf contended in the Divisional Court that the immigration officer should have given him indefinite leave, because he had been ordinarily resident here during the two years before his return. The immigration officer concerned stated in an affidavit that he considered that it was clear that from 1973, at the latest, Mr Baker had not been ordinarily resident in the United Kingdom, but had been ordinarily resident in Bangladesh and had been paying short visits to the United Kingdom just within the two-year period in order to attempt to maintain the status of a returning resident. He further stated that Mr Bakar had no property in the United Kingdom; he had no savings in the United Kingdom and, in reality, no connections in the United Kingdom. In contrast to this, his family and his business were in Bangladesh. n6 DC/442/80 d 19.3.81 (unreported). In his judgment WOOLF J commented that the words "ordinary residence" appeared in various statutes dealing with many different subjects, and that the context in which the words appeared could cause very different emphasis as to what did or did not amount to "ordinary residence". He did not propose, he said, to give a definition which should be regarded as "an exhaustive or indeed even a limited interpretation of the words 'ordinary residence' for the purposes of immigration law"; and he continued: "... whatever those words mean in relation to immigration law, they do indicate some connection with this country which goes beyond a mere presence here. The word 'residence' itself does denote an element of having a home here. It does involve something beyond mere presence". and then later in his judgment:

"... if the position that arises is one where the immigration officer forms the view that the only reason that a person has come back to this country for a limited period of, say, twelve days is that he is returning to this country in order to attempt to maintain the status of a returning resident and that he has no real intention at that time to form any other connection with this country and to make it his residence, then in my view that does not amount to the sufficient additional element added to the presence to amount to ordinary residence. On the facts of this case, as I have recited them, it seems to me that the immigration officer, when he considered the history relating to the applicant's comings and goings given to him between 12 and 19 September, 1980, was perfectly entitled to come to the conclusion that although Mr Bakar had been back to this country during the previous two years he had not retained his ordinary residence in this country and that that ordinary residence had been lost during the previous two years, and it was not sufficient for him to come back merely to maintain the status if he did not come back as a resident. On the evidence before the immigration officer, he could clearly say that he was not satisfied that he was coming back as a resident."

This matter of "ordinary residence" was also considered by the Tribunal in the recent case of Moksud Ali n7. The following is an extract from the Tribunal's determination in that case:

"Where was the appellant's real home when he left the United Kingdom on 2 March 1977? The Tribunal has no hesitation in finding that it was in Bangladesh and not in the United Kingdom. His wife and family were there. He owned land there. When he sought entry to this country on 7 October 1978 he had, apart from two short sojourns in this country, resided in Bangladesh ever since 1972, a period of almost six years. He needed to live there because his wife's ill-health prevented him from continuing his residence in this country. The 'centre of gravity', to adopt the phrase used in the Cicutti case n8, once in Brighton and the United Kingdom, had come to be in Bangladesh. The country in which in the settled routine of his life he has regularly, normally and continuously lived since 1972 has been Bangladesh. His stays in the United Kingdom since then have been merely sojourns."

n7 Moksud Ali v Secretary of State for the Home Department, TH/55205/79(1952) d 28.1.81 (unreported). n8 Cicutti v Suffolk County Council [1980] 3 All ER 689 Ch.D., per Sir Robert Megarry, V-C. It is clear on the undisputed facts in the present case that the appellant's real home is in India and that the Secretary of State properly refused the appellant's application for indefinite leave to remain in the United Kingdom as a returning resident under para 51 of HC 79, because he was not satisfied that Mr Chopra was ordinarily resident in the United Kingdom when he left in 1977; and he also properly found that Mr Chopra did not qualify to remain under any other immigration rule. n9 n9 The judgment of Woolf J on 19.3.81 in the case of Abu Baker was again considered by the Tribunal on 27 July 1981 in a case in which the appellant (Abdul Aziz Choudhury) had first come to this country in 1957, since when he had been in and out on various occasions and, at the time of his last arrival in June 1979 he had spent 12 or 13 of the preceding 22 years in the United Kingdom and 9 years in Bangladesh; his last departure from the U.K. had been on 5 July 1977. The Tribunal said that the evidence before the adjudicator "showed that the appellant had a house and some land in Bangladesh; his wife, two sons and four daughters had never been to the United Kingdom, except for his oldest daughter who had spent 2 1/2 years here upon marriage before returning to Bangladesh. The appellant owned no property in this country, although he had a bank deposit account here amounting to @1.08 only. His previous presence in this country had been for the purpose of earning money and obtaining medical treatment which he could not obtain in Bangladesh". On these facts the adjudicator did not consider that the appellant had been "settled in the United Kingdom" when he left in July 1977; the adjudicator dismissed the appeal. It was agreed by the parties' representatives before the Tribunal (Mr A McGeachy and Mr D A Birks) that the appeal must turn on the question of "ordinary residence", since para 1 of HC 79 provided that a person was "settled in the United Kingdom" when he was "ordinarily resident here without having entered or remained in breach of the immigration laws" and when "free from any restrction on the period for which he may remain". It was not disputed that Mr Choudhury had been in this country lawfully and without any restriction on the period for which he might remain. The Tribunal considered submissions on ordinary residence made by the parties' representatives:

"Mr McGeachy submitted that it is possible for a person to be ordinarily resident in two countries at the same time, but since in our view residence connotes physical presence (although they do not necessarily mean the same thing), and since it is impossible to be physically present in two countries at the same time, we are unable to accede to this submission. Mr McGeachy also submitted that in deciding that the appellant had not been ordinarily resident here the Secretary of State and the adjudicator had wrongly taken into account the appellant's motives for being in this country. In his submission the appellant's reasons for being in this country were irrelevant in deciding whether he was ordinarily resident here. Mr Birks submitted that the appellant's motives were relevant because a person's purpose in living in a particular country can help to decide whether he is ordinarily resident there."

The Tribunal then considered the judgment of Woolf J in Abu Baker's Case and its application by the Tribunal in Chopra's Case (above), and concluded their determination as follows:

"In our opinion the appellant in 1977 regarded his home as being in Bangladesh and -- this being so -- following the guidance given by Woolf J, he cannot be regarded as having been ordinarily resident in this country."

The Tribunal added, however, that they might "be wrong in so finding and would welcome guidance on this point from a higher authority". The appeal was dismissed. (TH/68478/80(2095) d 27.7.81, before D. L. Neve Esq (President), Miss M. F. Appleby and Dr S. Torrance.)

DISPOSITION:

Appeal dismissed.