Nestor Bernaldo, Britto Philomeno Bernadette Britto v. Secretary of State for the Home Department

Immigration Appeal Tribunal

[1984] Imm AR 93

Hearing Date: 20 June 1984

20 June 1984

Index Terms:

Citizenship -- British Overseas Citizens -- Granted indefinite leave -- Applications for certificates of entitlement refused -- Relevant period of ordinary residence -- Meaning of ordinary residence -- Whether concurrent dual ordinary residence possible -- British Nationality Act 1981 s 11(1) -- Immigration Act 1971 s 2(1)(c), 2(3)(d).

Held:

The facts are set out in the determination. Held: (i) For the purposes of the Immigration Act 1971 and the Immigration Rules the requirement for Ordinary Residence was a settled purpose, specific or general. (ii) A person could be Ordinarily Resident in two places at once. (iii) The appellants had a settled purpose: to establish a home for the family and eventually to live in it permanently. T Gallivan of Counsel for the appellants. Mrs E France for the respondent.

Cases referred to in the Judgment:

Shah v Barnet Borough Council and other appeals [1983] 1 All ER 226, HL. PANEL: Professor DC Jackson (Vice-President), Major RAK MacAllan, Dr S Torrance

Judgment One:

THE TRIBUNAL: Determination The appellants, British Overseas Citizens, appeal against the decision of an adjudicator (Mr EJT Housden) dismissing their appeal against the refusal of certificate of entitlement to the right of abode in this country. Mr and Mrs Britto seek a certificate of entitlement and through that certificate British citizenship in accordance with the provisions of the British Nationality Act 1981 which came into force on 1 January 1983. By section 11(1) of that Act it is provided so far as is relevant that: "a person, who immediately before commencement -- (a) was a citizen of the United Kingdom and Colonies; and (b) had the right of abode in the United Kingdom under the Immigration Act 1971 as then in force, shall at commencement become a British citizen." The Immigration Act 1971 as in force on 31 December 1982 provided: "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." The meaning of "settled" is set out in section 2(3)(d): "2(3) In relation to the parent of a child born after the parent's death, references in subsection (1) above to the time of the child's birth shall be replaced by references to the time of the parent's death; and for purposes of that subsection -- (d) subject to section 8(5) below, 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 8(5) is concerned with exemption from immigration control and has no relevance to this case). The facts and the relevant period of ordinary residence The facts are not in dispute. The adjudicator summarised the appellant's history: "Mr Britto's history is briefly as follows. He is a cartographer who was trained in England although he was born in Mombasa, Kenya, and his family came originally from India. From 1945 to 1968 he worked for the Colonial governments of Uganda and Tanganyika. He then worked for the Government of Ethiopia for about 4 years, until 1973, training local people. He visited Britain in December 1972 and again in May 1973. In February 1973 he was engaged by the United Nations as Chief Cartographer with the UN Technical Assistance Programme in Ethopia, and remained in that post until August 1978 when he went to Nepal under similar arrangements. In March or April 1974 he bought a house here and he visited the UK from time to time thereafter. A detailed account of his movements, given in paragraph 4 of the Home Office Statement, shows that between 29 August 1977 and 23 January 1983 Mr Britto spent a total of 7 months in this country and a total of 4 years and 10 months overseas. Between 29 August 1977 and 9 October 1982 Mrs Britto spent one year and 4 months in the UK and 4 years and 1 month abroad. Although Mr Britto's youngest child accompanied him to Ethopia and Nepal, his daughter and older son were educated in the UK from 1974 and 1973 respectively. Both sons now live here with Mr and Mrs Britto, but their daughter lives in Bermuda where she is married to a US citizen. Mr Britto became a citizen of the United Kingdom and Colonies by registration on 16 December 1960 in Uganda." On 17 August 1977 Mr and Mrs Britto were granted indefinite leave to remain here. The grounds of refusal read:

"Mascarenhas & Co, Solicitors, have applied on your behalf on 24 December 1982, for the right of abode endorsement on the grounds that you were a citizen of the United Kingdom and Colonies who was settled in the United Kingdom, and at that time and while such a citizen been ordinarily resident for 5 years. However the Secretary of State is not satisfied that you have been ordinarily resident in the United Kingdom for such a period."

Consistently with the period on which the grounds of refusal focused the adjudicator saw the issue in this case as being whether the appellants "were ordinarily resident in the United Kingdom" for the last five years or more "that is prior to their application on 24 December 1982". Mrs France agreed that this approach placed a narrower construction on section 2(1)(c) of the Immigration Act 1971 than seems warranted. With respect to the adjudicator the provision requires that the appellants: (i) are citizens of the United Kingdom and Colonies; (ii) have "at any time" been settled in the United Kingdom; and (iii) were "at that time" (and while such a citizen) been ordinarily resident for the last five years. The period of five years is therefore linked to the time of settlement and not the time of application for certificate of entitlement. As a result and because of the need to prove entitlement by 31 December 1982 Mr and Mrs Britto must establish that at some date by 31 December 1982 they were settled here and that for five years prior to that they were ordinarily resident here. As they obtained indefinite leave on 17 August 1977 it follows that they will comply with the provision if at any date between 17 August 1977 and 11 December 1982 they were settled here and were ordinarily resident for five years prior to whichever date is selected. The relevant period of ordinary residence Our view, with which as we say Mrs France agreed, meant that the period relevant to the case was somewhat more extended than that dealt with in the explanatory statement or considered by the adjudicator. We therefore heard evidence from Mr Britto as to his movements and activities in this country prior to 1977. Putting together that evidence with that given the adjudicator and that set out in the explanatory statement Mr Britto connections with this country since 1972 have been: 23 November 1972 - 16 December 1972 To look for a house 26 May 1973 - 9 June 1973 To obtain place for son in college1 September 1973 - 17 September 1973 To escort son to college 27 July 1974 - 21 September 1974 Visit after house purchased 5 July 1976 - 14 August 1976 7 July 1977 -3 September 1977 Mr Britto confirmed that on each entry he was admitted as a visitor but, he said, it was always his intention to stay here. As did the adjudicator we accept that all material times Mr Britto intended to make this country his base and to establish a family home here. Mr Britto looked on the United Kingdom as his country of residence for the purposes of his employment with the United Nations: save for a trip to Goa he spent all his home leave here and he was repatriated back here at the end of his assignment. Most of his United Nations salary and his pension attached to his earlier government service is paid to a bank in Surbiton and he made his will here. He brought a house here and save for a period immediately subsequent to the purchase used it as a family home. While in Ethopia and Nepal the family lived in rented accommodation. The explanatory statement records Mr Britto movements since 1977: "Landed Embarked 25 July 1978 24 August 1978 3 July 1979 25 July 1979 11 August 1979 4 September 1979 10 August 1980 21 September 1980 3 July 1981 1 September 1981 19 December 1982 16 January 198323 January 1983" The statement records the dates of entry and departure of Mrs Britto separately. Save that in 1980 she alone made a visit of some eleven weeks the dates coincide with those of her husband and there has been no suggestion that the cases of the appellants differ. As the adjudicator said there may be other avenues along which the appellants can travel to reach their goal but Mr Gallivan stressed the importance to the appellants of being recognised as British citizens now. Mr Gallivan said that there was little opportunity for Mr Britto to obtain employemnt in his specialised field in the United Kingdom but that employment may be open in the EEC. In order to be abe to seek that employment he needs to have the right of abode in this country. The issue -- ordinary residence The issue in the case turns entirely on whether Mr and Mrs Britto have been ordinarily resident in this country for a period of five years ending at any date between 17 August 1977 and 31 December 1982. Ordinary residence on any date within the critical dates will satisfy the requirement of settlement and the period of five years must be read back from the date of settlement. The case therefore depends on the application of the criteria of ordinary residence. These were adumbrated by the House of Lords in Shah v Barnet Borough Council [1983] 1 All ER 226. The adjudicator applying the principles of Shah was of the view that Mr and Mrs Britto "were ordinarily resident in Ethiopia and Nepal not in the United Kingdom". The adjudicator was not certain whether a person may be ordinarily resident in two places at once. Before us Mr Gallivan accepted that Mr and Mrs Britto may have been ordinarily resident in Ethiopia and Nepal but, he said, this did not prevent concurrent ordinary residence in England. He submitted that it was clear from Shah that a person could be ordinarily resident in two places at once and that the history of Mr and Mrs Britto showed a gradual development to ordinary residence. If, said Mr Gallivan, a person can be ordinarily resident in two places concurrently clearly physical presence is not the determining factor -- the purpose and surrounding circumstances of the stays in the particular country must be considered. However so long as there was a "settled purpose" the actual purpose of the stay was irrelevant. In this case said Mr Gallivan all the factors save physical presence point to ordinary residence. Neither the Secretary of State nor the adjudicator had approached the case on the basis of concurrent ordinary residence. Mrs France accepted that a person could be ordinarily resident in two places at the same time and agreed that the purpose behind Mr Britto's periods of stay in this country should be considered. She pointed to the purposes of Mr Britto's stay in this country prior to 1977 which she said fitted with those of a visitor. It was Mr Britto's intention to settle here but while working in other countries he has no "settled purpose" in being here. The brief duration of the stay could not be disregarded -- the nature and quality of the presence was relevant. While it may be that Mr and Mrs Britto were ordinarily resident in the United Kingdom while they were here it did not follow that they remained ordinarily resident when they had left. The concept of "ordinary residence" All discussion of the meaning and application of this phrase now has to take place in the context of the Shah case. Application to the Immigration Act 1971 The case concerned the construction of the phrase in the Education Act 1944 but the import of the decision is general. One specific question put to the House of Lords was whether the phrase should have a special meaning in the Education Act in the light particularly of the Immigration Act 1971. Lord Scarman delivering the judgment of the House answered with the emphatic "no". Lord Scarman continued:

"Ordinary residence is not a term of art in English law. But it embodies an idea of which Parliament has made increasing use in the statute law of the United Kingdom since the beginning of the nineteenth century. The words have been a feature of the Income Tax Acts since 1806. They were used in English family law when it was decided to give a wife the right to petition for divorce notwithstanding the foreign domicile of her husband: see the Matrimonial Causes Act 1950, s 18(1)(b). Ordinary or habitual residence has, in effect, now supplanted domicile as the test of jurisdiction in family law; and, as Eveleigh LJ in the Court of Appeal reminded us (see [1982] 1 All ER 698 at 705, [1982] QB 688 at 721-722), the concept is used in a number of twentieth century statutes, including (very significantly) the Immigration Act 1971."

Lord Scarman took the meaning of "ordinary residence" to have been established by the House of Lords in two tax cases in 1928 -- Levene v IRC [1928] AC 217 and IRC v Lysaght [1928] AC 234. He rejected a contention that these cases gave the phrase a special "tax" meaning saying:

"The converse is the case. The true reading of the speeches delivered is that the House decided to construe the words in their tax context as bearing their natural and ordinary meaning as words of common usage in the English language . . ."

Lord Scarman concluded:

"Unless, therefore, it can be shown that the statutory framework or the legal context in which the words are used requires a different meaning, I unhesitatingly subscribe to the view that "ordinarily resident" refers to a man's abode in a particular place or country which he has adopted voluntarily and for settled purposes as part of the regular order of his life for the time being, whether of short or long duration."

We are of the view that the Shah case applies to the Immigration Act 1971 and the immigration rules (a view taken by the Tribunal in previous decisions -- see (eg) Kaniz Sultana (2888)). We are supported in that view by Lord Scarman in Shah (at 239). Although he did not decide the issue, in Lord Scarman's view, "ordinary residence" is used in the Immigration Act 1971 in its "natural and ordinary meaning". Lord Scarman pointed to the use of ordinary residence "to denote something less than right of abode and settlement". We agree that these are positive pointers to the use of "ordinary residence" in its natural and ordinary meaning. Concurrent dual ordinary residence In our view it is clearly that a person may be ordinarily resident in more than one place at the same time. In Shah (at p 234) Lord Scarman referred to Re Norris (1888) 5 Morr 111 as accepting that proposition. In that case (concerned with jurisdiction in bankruptcy) a man who lived with his family in Belgium maintained a hotel room in England. It was held that he could be ordinarily resident in both countries. Lord Scarman implicitly approved Re Norris in drawing the distinction between domicil and ordinary residence. In substance, assuming the definition of ordinary residence to be as set out in Shah it would hardly make sense to restrict ordinary residence to one place only. It follows that the Tribunal decision in Gogna (2153) delivered before Shah cannot stand. The elements of ordinary residence Lord Scarman adopted as his basic definition:

". . . a man's abode in a particular place or country which he has adopted voluntarily and for settled purposes as part of the regular order of his life for the time being, whether of short or long duration."

elaborating on the settled purpose that:

"The purpose may be one or there may be several. It may be specific or general. All the law requires is that there is a settled purpose. This is not to say that the propositus intends to stay where he is indefinitely; indeed his purpose, while settled, may be for a limited period. Education, business or profession, employment, health, family or merely love of the place spring to mind as common reasons for a choice of regular abode. And there may well be many others. All that is necessary is that the purpose of living where one does has a sufficient degree of continuity to be properly described as settled."

He added: ". . . if there be proved a regular, habitual mode of life in a particular place, the continuity of which has persisted despite temporary absences, ordinary residence is established provided only it is adopted voluntarily and for a settled purpose." In the Shah case the issue turned on the relevance of the particular purpose of a residence (in that case to study) as compared to the regular mode of life adopted voluntarily and for a settled purpose. The adjudicator saw the case before him as presenting the converse of Shah and he held that on the principles of Shah Mr and Mrs Britto were "ordinarily resident in Ethiopia and Nepal not in the United Kingdom". It is with the negative part of that holding that Mr Gallivan takes issue and stresses that the case should be approached not as posing alternatively but concurrent "ordinary residence". As we have said in Shah Lord Scarman specifically followed the decisions in 1928 of Levene and Lysaght. Both these cases posed the issue which we face. In Levene at the material times the appellant had no fixed place of abode but lived in hotels in England and abroad, being in England for between 19 and 22 weeks each year over five years. He was held to be ordinarily resident during each year. Viscount Cave LC referred to a number of earlier tax cases in which it was held that a person who had an "establishment" -- be it a home or accommodation available to him -- in this country but used it for only a relative short period of a year was held to be ordinarily resident for that year. In Cooper v Cadwalader (1904) 5 Tax Cas 101 a citizen of the United States who was the tenant of a house in the Highlands visited it (with his valet) for two months each year during the grouse season. He was resident in this country. In Loewenstein v De Salis (1926) 10 Tax Cas 424 a man for whom a "hunting box" was made always available which he used regularly but not exceeding 4 1/2 months in the year was resident here. In AG v Coote (1817) 4 Price 183 it was said that if a man "came here for the purpose of establishing a residence it were enough if he should reside here only two weeks". In all those cases and in Levene the emphasis is not so much on the duration of the presence but on the regularity and the purpose. The purpose (in Lord Scarman's words the "settled purpose") is used to distinguish "ordinary" from "occasional" residence -- a visit which is not part of the regular order of life. Application to the facts of this case Both Mr Gallivan and Mrs France urged us to look at the purpose of the stay in this country. Mrs France focused on the actual purpose of each visit -- (to put the children in school, to purchase the house) while Mr Gallivan urged us to hold that it is not the nature of the purpose that is relevant but whether it is a settled purpose. Mrs France added that a mode of life implies presence. We take Mrs France's point about the capacity to have a regular habitual mode of life but with respect disagree that this necessarily implies a physical presence. We agree that without some physical presence "ordinary residence" would be difficult to establish, but presence will decrease in importance in the light of a continuous and regular substantive connection such as is evidenced by a home. However we emphasise that it is a question of fact and degree in each case. Clearly, as Mr Gallivan said, Mr and Mrs Britto had a settled purpose (which was to establish a home for the family and eventually to live in it permanently). The regular habitual mode of life consisted of the availability of the home for, apart from the year immediately after the purchase, the house was available and used by the family, and the "visits" by Mr and Mrs Britto made whenever leave permitted. Through these visits and their context was a continuity in this "regular habitual mode of life" (which was missing in Kaniz Sultana (2888)). Mr and Mrs Britto are in the position not unlike the English civil servants working abroad. Once accept that there may be concurrent ordinary residence and the element of physical presence becomes less dominant. In this case the family home and the accepted family intention taken together with the regular visits (even though limited in duration) lead us to the conclusion that Mr and Mrs Britto were ordinarily resident here for the required period.

DISPOSITION:

Appeal allowed

SOLICITORS:

Messrs Mascarenhas

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