Secretary of State for the Home Department v. Sin Lai Jacqueline Wong

SECRETARY OF STATE FOR THE HOME DEPARTMENT v SIN LAI JACQUELINE WONG

Immigration Appeal Tribunal

[1992] Imm AR 180

Hearing Date: 13 November 1991

13 November 1991

Index Terms:

Spouse -- refusal of leave to remain in the United Kingdom -- Secretary of State not satisfied that the couple intended to live together as man and wife -- husband a British citizen working abroad -- appeal allowed by adjudicator -- whether adjudicator erred in directing that the appellant before him be granted indefinite leave to remain -- whether, on the facts, the husband was settled in the United Kingdom. Immigration Act 1971 s 33(2A); HC 388 para 131.

Held:

The respondent was a citizen of Hong Kong, married to a British citizen who himself was working abroad and had been so working since 1985. The respondent had been refused leave to remain in the United Kingdom because the Secretary of State, in the circumstances, concluded that the couple did not intend to live together as man and wife. An appeal was allowed by the adjudicator, who directed that the appellant before him be granted indefinite leave to remain. The Secretary of State appealed to the Tribunal, submitting that the rules provided that in the first instance, leave for twelve months should be granted. The Tribunal considered also the requirement of the rule that the sponsor should be settled in the United Kingdom. Held 1. The adjudicator erred in directing that the respondent be given indefinite leave to remain: if she qualified under the rules, then in the first instance a period of limited leave was mandatory. 2. However, on the facts, the sponsor was not settled in the United Kingdom. A person could (following Shah) be ordinary resident in more than one country: "settled" in the 1971 Act was defined as ordinarily resident and free of immigration control: however there was nothing to show that the sponsor had an abode in the United Kingdom. That was a prerequisite to the grant of leave to his spouse. 3. The appeal accordingly would be allowed.

Cases referred to in the Judgment:

R v Barnet London Borough Council ex parte Shah [1983] 2 AC 309: [1983] 1 All ER 226.

Counsel:

T Wilkie for the appellant; K Lannaman for the respondent PANEL: Professor DC Jackson (Vice President), AA Lloyd Esq, Major D Francombe

Judgment One:

THE TRIBUNAL: The Secretary of State appeals against the decision of an adjudicator (Mr JS Brodwell) allowing the appeal of Sin Lai Jacqueline Wong against the refusal of leave to remain as the wife of Patrick Wong, a British citizen. The application of the respondent was refused on the ground that the Secretary of State was not satisfied that the parties intended to live together as husband and wife. The adjudicator heard evidence from the respondent and her father-in-law. He found the sponsor and the respondent to be truthful people, allowed the appeal and directed that the respondent be granted leave to remain permanently. The grounds of appeal asserted the general ground that the adjudicator's decision was against the weight of the evidence and that the direction for permanent stay was wrong, in that if the respondent's application were granted the rules provided for an initial 12 month period of leave. Leave was granted first, on the ground that the case raised the question as to whether the sponsor, the respondent's husband, was settled in this country at the material date and secondly, whether the direction was properly made. Leave was not granted insofar as it might have been sought to challenge the adjudicator's finding as to the intention of the parties to live together as husband and wife. The applicable immigration rule is that set out in HC 388 paragraph 131. That rule sets out a number of requirements, and is introduced by the following phrase: "Where a person with limited leave seeks an extension of stay on the basis of marriage to a person settled here, an extension will not be granted unless the Secretary of State is satisfied . . .". [as to requirements listed (a) to (h)] The rule concludes: "When the Secretary of State is satisfied that all the conditions at (a)-(h) above apply, the applicant will be allowed to remain, for 12 months in the first instance". It is not contested that the respondent satisfies all the conditions listed at (a) to (h). However, an applicant, in order to rely on the rule, must also show that the other party to the marriage is settled here. Once that is shown then, as the rule says, the applicant will be allowed to remain for 12 months in the first instance. It therefore follows that, if Mr Wong is settled here, the Secretary of State is correct in asserting that the leave granted would be for 12 months in the first instance. The substantive issue for us is therefore, whether at the date of decision (ie 4 April 1990) Mr Wong was settled here. The general definition of settled is to be found in the Immigration Act section 33(2A) as being "ordinarily resident . . . without being subject under the immigration laws to any restriction on the period for which he may remain". Mr Wong is a British citizen and therefore the solo issue is whether at the critical date, he was ordinarily resident in this country. The meaning of "ordinary residence" is to be taken from the House of Lords decision in Shah v Barnet Borough Council [1983] 1 All ER 226. In that case Lord Scarman defined the concept as being: "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". As to the settled purpose, Lord Scarman added: "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 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". The facts Mr Wong gave evidence before us. He said that he had first entered the United Kingdom in 1971 where he lived with his parents until 1985. He left his parents and the country in 1984 or 1985 because he was looking for a job. He travelled and found a job in Hong Kong. He did not see Hong Kong as his home, and he did not buy any property there. He intended to return to the United Kingdom -- his family was here. He did not set any time, but his parents asked him to come back. He came back to the United Kingdom in 1987 because he was getting married. His wife, the respondent in this case, came with him and he spent less than a month in the United Kingdom. On that occasion he had not ended his job. His wife and he came back to the United Kingdom in 1989, and he stayed for about a month. The application was then made for his wife to stay. Mr Wong said that he had been working for the same company since 1985. There is before us a letter dated 15 November 1989 from Sun Hung Kai Securities Limited, stating that Mr Wong had worked for that company since 16 April 1985. Mr Wong said that in 1990 he was given the chance to go to Indonesia on a one year contract. There is on file a copy of a letter dated 26 April 1990 from Sun Hung Kai Securities to Mr Wong, setting out the terms and conditions of that contract. It appears from that letter that he was to be transferred to PT Sun Hung Kai Securities as Manager, and his existing contract with the parent company was to cease on the date he took up his Indonesian contract. The secondment was to continue after the one year term until terminated by either party. The terms and conditions were also set out in the letter. Mr Wong told us that the company provided a flat in Indonesia as part of the package, that the one year has now ended but the contract had been extended -- the company had asked him to stay on until the project was completed. As the letter states, Mr Wong said that further continuation was up to the company, for they could ask him to go. He said that continuing the post depended on his performance. His home was not Hong Kong or Indonesia -- that was "work". He had not looked for work as yet apart from his job. So, he might be able to help his father if his contract ended. He and his wife had purchased a house in this country. His parents owned a house, and he had a married sister living here. He and his wife owned the house jointly, and he wished his children to be brought up here. He had an uncle who looked after his house while he was away. If his contract was terminated, he would come back to the United Kingdom. During the years 1985 to 1989 he went holidaying in places other than the United Kingdom. Conclusions It is possible, as Mr Lannaman said, for a person to be ordinarily resident in more than one place. So, a person whose base is in this country but who works abroad for periods of time may well be ordinarily resident both in this country and abroad. The ordinary residence may continue despite the absence from one place to another. As Lord Scarman said in the Shah case: ". . . 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". The difficulty for Mr and Mrs Wong is that in reality between 1985 and 1989 the sole physical contact has been two visits. It may well be that Mr Wong remains domiciled in this country (this is not a matter we have to decide), but it does seem to us that regrettably there is simply not the factual contact which will enable us to say that Mr Wong had an abode in this country which he had adopted "as part of the regular order of his life for the time being". There is simply nothing there. Mr and Mrs Wong have purchased a house since the date of decision, and it may well be that if Mrs Wong and her child are allowed to stay in this country, Mr Wong's life would become focused around his base here. Unfortunately, for him and his wife, the rules require that that focus exists as a prerequisite for leave to be granted to Mrs Wong as his wife. Therefore it will be for Mr Wong to make his decision as to whether he wishes to adopt "a regular habitual mode of life" in this country. Mrs Wong's right to remain here as his spouse will depend upon that. In our view, therefore, Mrs Wong's case cannot succeed under the immigration rules. The appeal of the Secretary of State is therefore allowed and, although for a reason different to that given initially by the Secretary of State, the refusal of leave to remain is reinstated.

DISPOSITION:

Appeal allowed

SOLICITORS:

Sheffield Law Centre