TNAG-1083-FCO40-1333-Implications-for-Hong-Kong-of-changes-in-the-British-nationa-1981 — Page 2

these legal decisions. In 1976 in answer to a request for guidelines from the Hong Kong Immigration Department the Home Office had advised that ordinary residence was a notoriously elusive concept. The Home Office was also of the view that it was difficult for students to establish ordinary residence in the UK on the grounds that a person was normally deemed to be ordinarily resident in the UK only if he had established his main home there and was not dependent on the support of relatives.

6

Between 1973 and 1979 there were 36 applications for the grant of the right of abode from Hong Kong students who had lived in the UK for 5 years or more, had all conditions of stay there removed and had subsequently re turned to Hong Kong. However, in spite of the views stated in paragraph 5 above the Home Office had approved virtually all the se applications.

Recent Development

7

In May 1980 however an application from such a person was refused by the Home Office. In reply to D of I's request for clarification, the Home Office wrote in October 1980 and set out their views on interpretation of "ordinarily resident" for partriality purposes as follows:

(a) the time spent in the UK by a student as a minor

supported by parents living overseas should generally not be counted as "ordinary residence";

(b)

if a person is in the UK for a specific or limited purpose (e.g. to study with the intention of returning to Hong Kong), rather than the general purpose of living there, he will not be "ordinarily resident" in the UK. (This view relied on a UK court judgment under the Education Act - see Annex A for a note on the se cases).

8

As a result, a Hong Kong student who had, for example, lived in the UK for 8 years and 3 months using a Hong Kong passport but who had subsequently returned to Hong Kong, was refused the grant of the right of abode on the grounds that he had not been ordinarily resident in the UK for 5 or more years because he was a minor during the first 5 years of stay and he was in the UK only for the specific or limited purpose of studying with the intention of returning to Hong Kong during the remaining years.

C.S. 166

CONFIDENTIAL