Dinubhai Patel and Another v. Secretary of State for the Home Department

Dinubhai Patel & Another v Secretary of State for the Home Department

Immigration Appeal Tribunal

[1984] Imm AR 147

Hearing Date: 4 September 1984

4 September 1984

Index Terms:

Patriality -- Right of abode -- Appellants entered for settlement 1975 -- First appellant (husband of second) resident 1975-1977 and from 1981 onwards -- Second appellant absent on numerous (on two occasions lengthy) periods between 1977-1983 -- Applications for certificates of entitlement to right of abode refused -- Whether appellants had been ordinarily resident for the last five years -- Immigration Act 1971 s 2(1)(c).

Held:

The facts are set out in the determination. Held: (i) The first appellant's absence between 1977 and 1981 (in which for some time he participated in the running of the family factory) destroyed the continuity which was an inherent element of "ordinary residence". (ii) The second appellant maintained between 1977 and 1983 a regularity of substantial contact with the United Kingdom which served to maintain the foundation of ordinary residence laid in the years 1975 to 1977.

Cases referred to in the Judgment:

Shah v Barnet London Borough Council [1983] 1 All ER 226, HL. Osman (Unreported) TH/117372/83 (3257) of 13 June 1984. Britto (Unreported) TH/110756/83 (3253) of 20 June 1984.

Counsel:

K Drabu of the United Kingdom Immigrants Advisory Service for the appellants. A Gammons for the respondent. PANEL: Professor DC Jackson (Vice-President), AW Lockwood Esq, Dr S Torrance.

Judgment One:

THE TRIBUNAL: The appellants, who are British Overseas citizens and who are husband and wife, appeal against the decision of an adjudicator (Mr EJT Housden) dismissing their appeal against the refusal to grant certificates of entitlement to the right of abode in the United Kingdom. The appellants' case is based on the Immigration Act 1971, section 2(1)(c) which reads: "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." Section 3(d) of the Act defines "being settled" 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."

The issue in this appeal is whether either appellant has been ordinarily resident in the United Kingdom for the required period. By virtue of section 2(1)(c) and the coming into force of the British Nationality Act 1981, success depends upon the appellants being settled here at a date prior to January 1983 and to have been ordinarily resident for five years preceding that date. The facts are not in dispute. The appellants went to India from Uganda in 1972. They came to the United Kingdom on 28 June 1975 for settlement with their family of four children. After arrival Mr Patel was employed for part of 1976 and 1977 and was thereafter self-employed. In 1977 (the explanatory statement records the date as 4 November) Mr Patel returned to India -- initially, he said, intending to stay for a holiday of some two to three months. However, there was trouble in a factory, apparently owned by the family and normally run by Mr Patel's brother, and Mr Patel had to stay to deal with that trouble. He did not return to the United Kingdom until 23 April 1981. From that date Mr Patel has been resident in this country at all material times. According to Mr Patel's evidence before the adjudicator, after 1975 Mrs Patel's movements as between India and the United Kingdom were: To India To England 13 March 1977 23 May 1977 9 February 1978 25 March 1979 25 November 1979 23 April 1981 15 December 14 May 1982 1982 Since 1975 the four children (and while here Mr and Mrs Patel) have lived at the family house owned by Mr Patel's brother. The house is shared between Mr Patel's family and his brother's family. The adjudicator applied the decision in Shah v Barnet Borough Council [1983] 1 All ER 226 in holding that neither appellant was ordinarily resident in the United Kingdom for the required period of five years. However, the adjudicator did express the view that the tax cases of Lysaght [1928] AC 234 and Levene [1928] AC 217 which, as he said, held that a tenuous connection could be the basis of ordinary residence, had been overtaken by Shah. The adjudicator's decision in the present case was prior to the decisions of the Tribunal in Osman (3257) and Britto (3253). The principles established by Shah were set out by Lord Scarman in that case and were cited in Britto: "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 or 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 Britto the tribunal noted that Lord Scarman had followed the decisions of Lysaght and Levene and had adopted them in formulating the principles which are set out above. Also in Britto the Tribunal emphasised that, following Shah, it is now established that a person may be ordinarily resident concurrently in more than one place. Mr Drabu relied on the decisions in Britto and Osman. In Britto the connection with the United Kingdom was relatively slight in terms of duration of physical presence but it was regular. Mr and Mrs Britto were employed outside the United Kingdom but had bought a house here, regarded the house as the family home, intended to live here once Mr Britto was retired and stayed in the house annually and as regularly as Mr Britto's work permitted. The Tribunal held that Mr and Mrs Britto were ordinarily resident in the United Kingdom. In Osman the appellants (husband and wife) came to the United Kingdom on 30 April 1976 and on 4 July 1976 they "went back to Mozambique to wind up their family business there and settled their affairs. They returned to this country on 19 April 1978 and, apart from an absence of 2 weeks in 1982 (on holiday) and 8 weeks in 1983 (also on holiday) they have lived here ever since". The Tribunal summarised the case:

"From the somewhat exiguous evidence before us it appears that the appellants came here in 1976 intending to settle here; that they returned to Mozambique simply to finalise their residence there and clear up their affairs, and that, although they were probably ordinarily resident there for 22 months while so doing, they did not cease to be ordinarily resident in the United Kingdom."

Mr Drabu drew our attention to the Tribunal view in Britto as to the relevance of physical presence. In that case the Tribunal said:

"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 a question of fact and degree in each case."

The principles of ordinary residence seem to us relatively well-established, but the difficulties of application do not lessen. We repeat what was said in Britto -- that that ordinary residence is a question of fact and degree in each case. We are concerned in this case not with whether the appellants became ordinarily resident in India but whether they remained ordinarily resident in the United Kingdom. Further, in this case there is no distinction between ordinarily resident and being settled for (as we understand it) the appellants were not subject to any restriction on the period for which they could remain in this country. We consider the case of each appellant separately. Mr Patel Both Mr Drabu and Mr Gammons agreed that we must weigh the connection between Mr Patel and England in coming to the decision on ordinary residence. In our view, Mr Patel's absence from England from 1977 until 1981 destroyed the continuity which is an inherent element of ordinary residence. It is arguable that during the initial period of his stay in India the connection with the United Kingdom was enough to classify his absence as temporary. However, during the later part of the stay it cannot be said in any meaningful sense that he had "a regular habitual mode of life' in this country. Mrs Patel In our view Mrs Patel is in a different category to her husband in relation to ordinary residence. The adjudicator found "marginally against her". For us the scale tips the other way. Between 1975 and 1983 Mrs Patel was physically absent for numerous and on two occasions lengthy periods. However, there is a regularity of substantial contact which, unlike Mr Patel, serves to maintain the foundation of ordinary residence laid in the years 1975 to 1977. It has to be remembered that any period of five years will suffice providing Mrs Patel was settled here on the last day of that period. In any event, looking at the period 1975 to 1982 as a whole, we are of the view that Mrs Patel had a regular habitual mode of life in this country.

DISPOSITION:

Appeal of the first appellant dismissed. Appeal of the second appellant allowed.

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