TNAG-1083-FCO40-1333-Implications-for-Hong-Kong-of-changes-in-the-British-nationa-1981 — Page 107

NOTE

Mr. Ford,

Please refer to Hong Kong telegram 445 of 17th March regarding Certificates of Patriality for Students.

2.

I have studied the two Court judgments referred to in paragraph 2 of that telegram. Both judgments were passed in July 1980. The first case, R v London Borough of Barnet, ex parte Shah and Another (1980) 3 All ER 679, concerned two unrelated Kenyans, Nilish Shah and Jitendra Shah. The second case, Cicutti v Suffolk County Council

(1980) 3 All ER 689, concerned an Italian, Ambrose Cicutti.

3.

All three plaintiffs had applied to the relevant local education authority for a grant in respect of university education; each application was refused on the ground that the applicant had not been "ordinarily resident" in the U.K. for the preceding three years. The judgments accordingly hinged on the term "ordinarily

resident".

4.

The Courts held that the term "ordinarily resident" is used to distinguish between persons who are resident for general (or "ordinary") purposes and those who are resident for a specific, special or limited purpose. The term embodies a number of different factors, such as time, intention and continuity. Mere presence, even for a period of three years, would not be enough; the residence must have a certain quality which is identified by the word "ordinarily".

5.

One element to which the Courts seemed to attach importance as contributing to this quality is whether the person has a genuine intention to reside in the U.K. per- manently. In this connection, it was held that "a man cannot truly be said to 'intend' something unless he has at least a reasonable prospect of bringing it about by his own act", and that "nobody can form a genuine intention to live in this country for general purposes if he has no right to be here save for a limited time and purpose, and no real expectations of having these limitations removed."

6.

Applying these general considerations to the cases of the three plaintiffs, the Courts ruled in favour of Nilish Shah and Cicutti but against Jitendra Shah. The circumstances of each case were as follows:

(a)

Nilish Shah

He was born in Kenya in July 1959. He came to the U.K. in August 1976 together with his parents, after

his father/...