Secretary Of State For The Home Department v. Rekha Ashok Kumar Jayantilal Haria

The Secretary Of State For The Home Department v Rekha Ashok Kumar Jayantilal Haria

Queen's Bench Division

[1986] Imm AR 165

Hearing Date: 12 March 1986

12 March 1986

Index Terms:

Right of abode -- whether when the appellant voluntarily but physically left the United Kingdom, the accepted family intention to return, was sufficient to provide a continuation of ordinary residence in the United Kingdom, earlier established -- whether re-admission as a returning resident would be conclusive evidence before the appellate authorities of continuing ordinary residence, in the context of a claim to a right of abode. Immigration Act 1971 s 2(1)(c)

Held:

The facts are set out in the determination. Held: 1. Leaving the United Kingdom for reasons of economic necessity does not amount to leaving involuntarily. 2. The expressed family intention to return to the United Kingdom at some time, was no more than an intention, and was sufficient to ground a claim to continuing ordinary residence in the United Kingdom. 3. Re-admission to the United Kingdom by an immigration officer would not be conclusive evidence before the appellate authorities, of ordinary residence at any particular time, in a claim to a right of abode.

Cases referred to in the Judgment:

R v Barnet London Borough Council ex parte Shah [1983] 2 AC 309: [1983] All ER 226 Britto v the Secretary of State for the Home Department [1984] Imm AR 93

Counsel:

P Curwen for the appellant; EA Yaansah for the respondent PANEL: Professor DC Jackson (Vice-President), Mrs A Weitzman JP, BL Shibko Esq

Judgment One:

THE TRIBUNAL: The Secretary of State appeals against a decision by an adjudicator (Mrs HC Rose) allowing the appeal of Rekha Ashok Kumar Jayantilal Haria against the refusal of a certificate of entitlement to the right of abode. The case for the respondent is based on section 2(1)(c) of the Immigration Act 1971. That provision reads: "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 is common ground that the respondent is a citizen of the United Kingdom and Colonies, and that on 19 May 1976 she was granted indefinite leave. By virtue of the British Nationality Act 1981 the respondent's right depends upon her establishing that prior to 31 December 1982 (i) she has been settled at some time in the United Kingdom and (ii) has been ordinarily resident for a period of five years consecutively preceding the latest date selected as the date of being settled. The facts are not in dispute. The respondent arrived in the United Kingdom on 8 February 1973 and remained here until 10 April 1977. She then returned with her husband to Kenya and remained there until 26 September 1979. She returned to this country on 26 September 1979. She returned to Kenya on 7 March 1980 returning to this country in November 1982. She went back to Kenya on 30 March 1983, staying until 24 August 1983 returning on that date to this country. She has lived here since that date. The adjudicator summarised the background to the respondent's movements between Kenya and the United Kingdom. ". . . Mrs Haria first came to the UK in 1973 from Kenya to join her husband. He had first arrived in 1968 as the dependant of his parents, but they had returned to Kenya after a few months. He then lost his "settled" status, and fought to regain it. In 1976 he was granted indefinite leave to remain. In 1977, the family business in which they were engaged, grocery shops, and the clothing business, failed. Mrs Haria in evidence said that rather than live on Supplementary Benefit and be a burden on the State, as a business opportunity presented itself in Kenya, they returned there to make enough money to come back to this country. A son was born in 1974, and after 2 1/2 years in Kenya, she returned to the UK for 6 months, during which period 26.9.79-7.3.80, a daughter was born, and she said her son went to school. Her husband was not able to sell the business in Kenya and she was unable to work because of the 2 young children. She had worked in Boots for a short period from September 1976-February 1977. After a further 2-year period in Kenya, they returned to settle. She returned to Kenya on 30.4.83 -- till 24.8.83, for a holiday, and during this period they sold the business and their house, and returned to live with her parents in this country, where she has been ever since". The adjudicator applying Lord Scarman's judgment in the case of Shah [1983] All ER at pages 233-235 and the Tribunal decision in Britto [1984] Imm AR 93 held that the respondent satisfied the requirements of section 2(1)(c). The adjudicator held that the respondent and her family settled here in 1973 and "hoped to establish a normal settled way of life". The adjudicator continued: ". . . Because her husband's business failed in 1977, and he was offered the opportunity to open up a new business in Kenya, he left. He had in the interim demonstrated clearly his intention to settle permanently in the UK and had been granted indefinite leave to remain in 1976. Mrs Haria's second child was born in the UK, and although they had no property of their own in the UK, it was because they were unable to afford to buy it, and lived with her parents, or parents-in-law". The adjudicator concluded: "I find that the accepted family intention in the case of Mrs Haria, was to remain settled in this country, and despite interruptions, brought about by legitimate considerations which caused the fmaily to live and work abroad for a time, the acceptance of concurrent ordinary residence as laid down in Shah, means that Mrs Haria has been ordinarily resident here for the required period, and is therefore entitled to a Certificate of Entitlement to the Right of Abode". In so concluding the adjudicator applied the principle of ordinary residence as set out in Shah by Lord Scarman. This reads: "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". It should be said that Lord Scarman, perhaps putting the same principle in different words also stressed the need for continuity of contact and having an abode in a country "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". Mr Curwen stressed the need for continuous contact with this country in order for a person to be said to be ordinarily resident and asked rhetorically whether the respondent's absences could properly be described as "temporary". He contrasted the facts of this case with those of Britto in which there was a continuing contact over a number of years. In this case, said Mr Curwen, the only contact was the residence here of the two sets of parents. Whatever the intention, the conclusion as to ordinary residence has to be based on what happened. Although there was a purpose to set up in business in this country again, there was in fact no business here and no money invested for a fresh start here. Mr Yaansah emphasised that the respondent had been here from February 1973 until April 1977 ie a period of four years and two months. He said that the absence from April 1977 to September 1979 was a critical period for the purposes of this case. He pointed to the respondent's reasons for returning to Kenya in 1977 (ie because of business problems). Mr Yaansah argued that there was nothing to show that in 1977 the respondent was taking a definitive step to stay out of the United Kingdom permanently. The evidence showed that she intended to come back. Mr Yaansah also argued that to arrive at a conclusion as to concurrent ordinary residence, it was necessary to know the ground of admission of the appellant in 1979. However we agree with Mr Curwen that even if it were established that the respondent was admitted as a returning resident, this would not show that she was ordinarily resident, either when admitted or during the whole or any part of the period during which she was in Kenya. Even if it could be said (which we do not in this case think it can be said) that in the opinion of an entry clearance officer the respondent was ordinarily resident in this country at any particular date, that opinion could not bind the adjudicator or the Tribunal when considering the issue in the context of an application of a declaration of a right to abode. Conclusions In our view, regrettably on the facts, when Mrs Haria left this country and went to Kenya in 1977 she ceased to be ordinarily resident in this country. While there was a specific purpose in going and it would appear from the evidence the move was founded on economic necessity, this did not mean that the move was involuntary. Further, as Mr Curwen pointed out, there was little substantive contact with this country and certainly no evidence that the intention to return at some future date was anything more than an intention. We differ with respect from the adjudicator in that in our opinion the "accepted family intention" together with the reason for the move to Kenya cannot found a continuation of the ordinary residence which was undoubtedly there prior to the departure in 1977. We find it impossible to say that on the facts during her absence from this country Mrs Haria remained in this country "for settled purposes as part of the regular order of her life for the time being". Looking at the whole history of Mrs Haria and her family there was not a sufficient degree of continuity of an abode in this country to say that she remained ordinarily resident here during the period of her physical absence from 1977 to 1979.

DISPOSITION:

Appeal allowed

SOLICITORS:

United Kingdom Immigrants Advisory Service