Thomas Tak Sang Kwok v. Secretary of State for the Home Department

Thomas Tak Sang Kwok v Secretary of State for the Home Department

Immigration Appeal Tribunal

[1984] Imm AR 226

Hearing Date: 11 December 1984

11 December 1984

Index Terms:

Patriality -- Right of abode -- Citizen of United Kingdom and Colonies -- Original entry as student -- Following marriage to person settled here granted indefinite leave -- Application of 18 April 1983 for certificate of entitlement to right of abode refused on basis that appellant had been in United Kingdom "in breach" of immigration laws -- Whether "breach" entailed liability to prosecution for offence against immigration laws -- Immigration Act 1971 ss 2 (as amended by British Nationality Act 1981 s 39), 33(2) -- HC 80 para 25 (as amended by HC 5716).

Held:

The facts are set out in the determination. Held: In the circumstances of the appellant's stay without leave he was in breach of the immigration laws and subject to a sanction for failure to acquire that leave.

Cases referred to in the Judgment:

Shah v Barnet London Borough Council [1983] 1 All ER 226, HL.

Counsel:

Ms S Dias of Counsel for the Appellant. D Wilmott for the Respondent. PANEL: Professor DC Jackson (Vice-President), AW Lockwood Esq, Dr S Torrance.

Judgment One:

THE TRIBUNAL: The appellant appeals against a decision of an adjudicator (Mr WJ Coley) dismissing his appeal against the refusal of the Secretary of State on 9 August 1983 to grant a certificate of entitlement to the right of abode. The facts are not in dispute. The appellant, a citizen of the British Dependent Territories arrived in the United Kingdom on 7 September 1974 and was granted leave as a student initially for 12 months and subsequently until 31 July 1977. On 17 January 1977 he married Lucia Lee who, it is accepted, was then settled here. On 31 January 1978 the appellant applied for indefinite leave on the basis of -- as the explanatory statement says "his marriage to a British subject". On 6 March 1978 the appellant left the United Kingdom and, it appears from his passport, returned on 10 April 1978 when he was given leave to enter for two months. On 27 April 1978 his application for indefinite leave was granted. On 18 April 1983 the appellant's solicitors applied on his behalf for a certificate of entitlement to the right of abode relying on the Immigration Act 1971 section 2(1)(c). The applicable legal structure The British Nationality Act 1981 came into force on 1 January 1983. It therefore applies to this application. By section 39 of that Act the Immigration Act 1971 section 2 was amended so as to provide (so far as relevant to this case) that the right of abode under the Act depends on British citizenship. It is accepted that at the commencement of the British Nationality Act the appellant qualified to become a British Dependent Territory citizen. To qualify as a British citizen the appellant must either become registered as such after the commencement (ie 1 January 1983) or have qualified by the commencement of the British Nationality Act as a British citizen. We are concerned with the latter. To qualify the appellant must comply with section 2(1)(c) of the Immigration Act 1971 as it was prior to the British Nationality Act 1981 preserved in the present context through section 11 of the latter Act. Section 2(1)(c) as applicable sets out the requirements with which the appellant must comply: "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 last five years or more." It was not disputed that the appellant was, at all material times, a citizen of the United Kingdom and Colonies. He must therefore show that (1) at any time prior to 1 January 1983 he had been settled in the United Kingdom and (2) for a period of five years ending with the selected date of settlement he had been ordinarily resident in this country. For the purposes of section 2(1)(c) "settled" is defined as follows: ". . . 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." (Section 2(3)(d) Immigration Act 1971.) It is provided in section 33(2) of the Immigration Act 1971 that:

"33(2) It is hereby declared that, except as otherwise provided in this Act, a person is not to be treated for the purposes of any provisions of this Act as ordinarily resident in the United Kingdom or in any of the Islands at a time when he is there in breach of the immigration laws."

It is agreed that ordinary residence must be construed in accordance with the principles set out in the House of Lords decision in Shah v Barnet London Borough Council [1983] 1 All ER 226. Those principles, however, do not affect the specific provision of section 33(2) that residence in breach of the immigration law is not "ordinarily resident". (See the Tribunal decision in Lai (3087)). The application of the law to this case The Secretary of State refused the appellant's application on the basis that from 31 July 1977 until (at the earliest) 6 March 1978 the appellant had been in the United Kingdom "in breach" of the immigration laws. If this conclusion is correct it appears indisputable that the appellant cannot succeed. Assuming in the appellant's favour that he was ordinarily resident here from his arrival and settled here from the granting of indefinite leave, he still cannot point to a period of 5 years of ordinary residence ending at the latest by December 31 1982. It is clear that the statutory pre-requisites for the certificate of entitlement leave no room for discretion in the Secretary of State or the appellate authorities. Ms Dias pointed out, quite rightly, that at the time of the appellant's marriage the applicable immigration rule (as set out in paragraph 25 of HC 80 as amended by HC 5716) provided that "a man admitted in a temporary capacity who marries a woman settled here should, on application, have the time limit on his stay removed". Ms Dias argued that this rule provided the appellant with an entitlement to be here after he had married and that therefore he was not in breach of the immigration laws during the time that he had no leave. Mr Wilmott countered, however, by pointing out that the granting of leave depended not only on the qualification under paragraph 25 but on the discretionary elements introduced into consideration of any application for leave by HC 80 paragraph 4. We agree with Mr Wilmott's contention and its consequence that paragraph 25 does not provide an entitlement. It follows, therefore, that the appellant cannot rely on this rule to show that he was not "in breach" of the immigration laws. The Tribunal raised with both parties the question of criteria of "breach" for the purposes of section 33(2) of the Immigration Act 1971 and in particular whether "breach" entails a liability to prosecution for an offence against the immigration laws. Mr Wilmott contended that "breach" meant any failure to comply with the legal requirements of those laws, and in the context of this case remaining in the United Kingdom without leave was such a breach. He supported this argument by reference to the power to deport a person who remains beyond the time limited by the leave. We agree that in the circumstances of the appellant's stay in this country without leave he was in breach of the immigration laws. He was a person whose entitlement to be in this country depended on leave to remain, he had not acquired that leave to remain and he was subject to a sanction for the failure to acquire it. Finally, Ms Dias sought to distinguish the appellant's case from overstayers in general (as eg those involved in Hamood (Stephen Brown J 7 February 1983), Chelliah (3011) and Lai (3087)) in that the appellant believed, she said, that he had a right to be here because of his marriage. However, it seems to us that given that "breach" is not restricted to criminal liability the belief does not go to whether there is a breach or not. Such a belief would obviously be a relevant factor in assessing any penalty which might follow from the breach, but it cannot affect any consequence (such as entitlement to the right of abode) which depends on the absence of a breach. For these reasons, therefore, we are of the view that the Secretary of State was correct in refusing the certificate of entitlement. Such a conclusion has no effect whatsoever on any claim which the appellant may have to citizenship through registration.

DISPOSITION:

Appeal dismissed.

SOLICITORS:

Ellison & Co

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