HG
HOME OFFICE
Lunar House Wellesley Road Croydon CR9 2BY
Telephone 01-686 0333 ext
ise ente
7871x
RM Sands Esq
Migration & Visa Department
Clive House
Petty France
vm
Foreign & Commonwealth O
286/3-
21 SEP 1981
Richar
LONDON
SW1
Dear Ri.
HONG KONG STUDENTS:
PATRIALITY
Please reply to The Under Secretary of State Your reference
GVM 286/3
Our reference
IMG/81 387/1196/1
Date
17 September 1981
See (370)
Ray Prosser has asked me to reply to your letter of 3 August concerning represen- tations made by the Hong Kong Government on the above matter.
The Home Office has been advising the Hong Kong Immigration Department recently to refuse a number of patriality applications made by persons who during their stay here were students. Our view, confirmed by legal advisors in August 1980, is that the judgment in the Shah case last year is relevant to the interpretation of the expression "ordinarily resident" in section 2(1)(c) of the Immigration Act. We also take into account the similar judgment in the Cicutti case. The se judgments make more explicit than heretofore the significance of intention as a means of assessing the quality of a person's residence. Although "ordinary residence" is still differentiated from "domicile", for which long-term intentions are of greater importance, the courts would appear to say that a person who stays here for a specific and limited purpose only, and in a temporary capacity, is not to be regarded as ordinarily resident. In the particular case of Shah this meant that one of the parties, who had been admitted as a student, could not be regarded as ordinarily resident and therefore failed to qualify for a local authority grant. The judgment was given in the context of the Education Act 1962, but took into account a wide range of case law relating to taxation and divorce. It therefore seems clear that the court intended its remarks about ordinary residence to have a more or less general application.
It is in a sense unfortunate that this judgment, which has to some extent changed our understanding of "ordinary residence", should have coincided with the passage of the British Nationality Bill. Undeniably we have had to refuse several applications which might previously have been granted. However this is unavoidable, since we cannot question the courts' authority in matters of law. Hong Kong are of course wrong to speak of the Immigration Rules being applied more strictly: patriality falls entirely under section ? of the Act, and there is no element of discretion as with the Rules.
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It may be worth pointing out to Hong Kong that since 1965 students have normally been admitted on time-conditions and have never been able to meet the primary requirement of section 2(1)(c), that of settlement. In a minority of cases the student has undertaken a very protracted course of studies, has been resident here for more than 5 years, and has managed to acquire settled status. Although we would probably us! regard such a person as ordinarily resident from the date when he became settled, we are having to look critically at the preceding period when the applicant was here
a student only with no indication that he had any other reason for his stay. However, we are prepared to look care fully at any case where the applicant has been resident as a student for more than 10 years, and to examine the possibility that he was obliged to return to Hong Kong by some unforeseen occurrence such as the death
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