R v. Immigration Appeal Tribunal, Ex parte Sai Ho Frederick Ng

R v IMMIGRATION APPEAL TRIBUNAL Ex Parte SAI HO FREDERICK NG

Queen's bench Division

[1986] Imm AR 23

Hearing Date: 14 November 1985

14 November 1985

Index Terms:

Right of abode -- "ordinarily resident" -- meaning -- whether where a person leaves the United Kingdom after terminating employment in respect of which he receives accrued holiday pay, his ordinary residence in the United Kingdom extends to the date up to which he is paid or whether his ordinary residence ceases on the earlier date upon which he physically leaves the United Kingdom -- Immigration Act 1971 ss 2(1), 2(3)(d), 33(1).

Held:

The applicant was a citizen of the United Kingdom and Colonies who arrived in the United Kingdom on 29 August 1962. He worked in the United Kingdom and his last employment ended on 31 August 1967. In that employment by 1 August 1967 he had accumulated entitlement to three weeks, six days paid leave. In consequence he ceased to attend his place of work regularly, by agreement, on 4 August, although he was paid up to and including 31 August 1967; he was on leave from 5 August 1967 to 20 August 1967; he went to his place of work on 21 August and 22 August and then left the United Kingdom for Hong Kong on 24 August 1967. His new employers in Hong Kong began on 31 August 1967. In 1983 he was refused a certificate of patriality, he not being considered to have been ordinary resident in the United Kingdom for "five years or more" as required by section 2(1)(1) of the Immigration Act 1971. To qualify, on the facts, he had still to be ordinarily resident in the United Kingdon on 29 August 1967. On that date he had left the United Kingdom for Hong Kong with no intention of returning to the United Kingdom. He was still however within the period covered by the accrued leave from his United Kingdom employment. His appeal against the Secretary of State's refusal to grant him a certificate of patriality was allowed by an adjudicator but that decision was reversed on appeal by the Secretary of State, by the Tribunal. The adjudicator decided the appeal in the appellant's favour on the basis that the was employed in the United Kingdom up to and including 31 August 1967. The Tribunal decided the case on the basis that his ordinary residence in the United Kingdom ceased when he left the country on 24 August 1967. The appellant sought judicial review. Held: 1. It was an inevitable inference from the facts that when the appellant left the United Kingdom he intended to reside and be employed in Hong Kong for the foreseeable future. 2. It followed that he was not or did not remain ordinarily resident in the United Kingdom after he left on 24 August 1967.

Cases referred to in the Judgment:

R v Barnet London Borough Council Ex Parte Shah [1983] 2 AC 309; [1983] 1 All ER 116.

Counsel:

Roger McCarthy for the appellant. M Harris for the respondent PANEL: Webster J

Judgment One:

WEBSTER J. This is an application for judicial review by which the applicant Sai Ho Frederick Ng, applies to quash a determination of the Immigration Appeal Tribunal made on 7 November 1984. That Tribunal decided that the applicant did not have a right of abode in the United Kingdom because he had never been ordinarily resident here for five years or more. In effect, the Tribunal decided that he had only been ordinarily resident here for four years and 360 days. The appeal arises in this way. Section 2(1) provides:

"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 ordianrily resident there for at least five years or more."

The applicant is a citizen of the United Kingdom and Colonies, but he first arrived in the United Kingdom on 29 August 1962. He worked from September 1962 to October 1964 with the British Reinforced Concrete Engineering Co Ltd and he was then employed on 7 August 1964 by British Lift Slab Ltd. His employment with British Lift Slab Ltd ceased on 31 August 1967 and he was paid up until that date, which was more than five years after Hong Kong on 24 August 1967. He stopped working for British Lift Slab Ltd on 5 August 1967 and he was paid up until 31 August, as I have said, because at the time he was owned three weeks and six days' leave. He started his leave on 5 August, and remained in the United Kingdom. He remained on leave, in fact, until 21 August. He went back to work for two days and then left the United Kingdom for Hong Kong on 24 August. When he left for Hong Kong he stayed for two weeks in the European YMCA and on 31 August 1967 he began work as a education officer employed by the Hong Kong Government, a job which he had found through the Crown Agents. He has continued to be employed by the Hong Kong Government since that date and he has continued to live in Hong Kong except for occasional visits to the United Kingdom. In 1983 he was refused a certificate of patriality by the entry clearance officer in Hong Kong. He appealed against that refusal and on 29 June 1984 the adjudicator, Dr Pearl, determined the appeal in his favour. It was common ground on that appeal that the appellant had been settled in the United Kingdom at some time and issue on that appeal and before the Immigration Appeal Tribunal subsequently was whether at that time he had been ordinarily resident here for the last five years or more. The adjudicator set out the facts, cited some well-known dicta from the speech of Lord Scarman in Shah v Barnet London Borough Council [1983] 1 All ER 226, and emphasized a passage in that speech at page 236, where Lord Scarman said: "Ordinary residence is ultimately a question of fact, depending more on the evidence of matters susceptible of objective proof than on evidence as to state of mind." Having cited that passage, the adjudicator went on in these terms: "During those five days" -- that is to say those five days after the appellant arrived in Hong Kong before he began his new employment" -- "the objectives proof is tht the appellant was till in the employ of a British company using up his holiday leave on full pay. He intended to take up a job in Hong Kong but this was to start on 31 August. "I therefore decide that the appellant satisfies the test laid down by Lord Scarman and that he continued to be ordinarily resident in the United Kingdom until 31 August 1967 when his employment with the United Kingdom company ceased. Accordingly Section 2(1)(c) covers his case, and the decision of the Secretary of State is contrary to the Immigration Act." He therefore allowed his appeal. The entry clearance officer appealed to the Immigration Appeal Tribunal and that Tribunal also cited some of the same passages from the speech of Lord Scarman which the adjudicator had cited and then concluded: "We are of the opinion that regrettably for Mr Ng, he ceased to be ordinarily resident in this country either on his departure or on his arrival in Hong Kong. His purposes in going to Hong Kong was clear and 'settled'. We cannot agree with the adjudicator that if Mr Ng had stopped for a few days in France on his way to Hong Kong that on the facts he necessarily would have remained ordinarily resident in this country. Further, the facts are that he want to Hong Kong --the place of his employment. We concluded tht Mr Ng became ordinarily resident in Hong Kong on his arrival there.

"The question whether Mr Ng remained ordinarily resident in England is not necessarily answered by becoming ordinarily resdident in Hong Kong. However, in our view, as from Mr Ng's arrival in Hong Kong it could not bee said that England was his abode adopted for a settled purpose. His departure was not for a temporary absence and clearly he ceased to be ordinarily resident at some time on or after 24 August when he left. The factors of employment and payment of National Insurance and tax may be relevant where there is no clear picture of permanent move from one country to another. However, on the facts of this case, viewed objectively that move took place when Mr Ng physically went to Hong Kong. He then ceased to be ordinarily resident in England."

In order to bring himself within Section 2(1)(c) on the facts of this case, the appellant has to show that on some date at least five years after he first began to reside in this country, he was settled in the United Kingdom and that on that date he had been ordinarily resident here for at least that period of five years. The word "settled" for the purposes of the Act is defined in Section 33(1) and is to be construed in accordance with Section 2(3)(d) of this Act. Section 2(3)(d) provides that -- and I quote only the material words -- "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 earlier date on which the applicant could rely for the purposes of establishing his entitlement under the act for this purpose was, therefore 29 August 1967, four days after he had left the United Kingdom. The question therefore, was -- which the adjudicator and the Tribunal appreciated, although they arrived at their conclusion in a slightly different way -- whether on that date the appellant was ordinarily resident in the United Kingdom. This is a short point and I can only approach it shortly myself. In my view, the Tribunal asked themselves the right question and drew from the fact an inference which was at least a proper one and in my view an inevitable one. It was in my view an inevitable inference that when the appellant left the United Kingdom, he intended to reside and be employed in Hong Kong for the foreseeable future. In the light of that inference, the conclusion that he was not or did not remain ordinarily in this country after he left it was, in my view, one which cannot be challenged and it is itself inevitable. Mr McCarthy has asked me to take the view that the Tribunal reversed unjustifiably a primary finding of act made by the adjudicator, but in my view, although the ajudicator seemed to gain some assistance, from considering what the position would have been, as a matter of hypothesis, had the appellant not gone to Hong Kong, but gone to France on holiday, I do not find it possible to see in his reasons any finding that the appellant was on holiday until he took up employment in Hong Kong, nor do I find anything in the Tribunal's determination of the reason to the effect that they have reversed any such finding, had it been made. In my view, they did nothing of the sort and there is no room for the leading of any new evidence or to any further enquiry. The inference which I have already described is in my view an inevitable one from the facts before both the adjudicator and the Tribunal, and I would accordingly dismiss this appeal.

DISPOSITION:

Application dismissed.

SOLICITORS:

Pipe, Smith and Basham, London; Treasury Solicitor.