TNAG-1085-FCO40-1335-Implications-for-Hong-Kong-of-changes-in-the-British-nationa-1981 — Page 72

Foreign and Commonwealth Office London SW1A 2AH

HKK 340

34011

RECEIVED RAINY

Telephone 01- 233 3184

- 2 OCT 1981

DESK OFFICER

INDEX

L M Davies Esq CMG OBE Secretary for Security Government Secretariat HONG KONG

(385)

51

Your reference

مئن

د.

814.00 PGD ISTIO

Our reference

Date

1 October 1981

Dear Dim,

HONG KONG STUDENTS:

1.

170

CERTIFICATES OF PATRIALITY

In your telegram No 481 to David Ford, you asked that our attention be drawn to the Home Office's refusal to approve applications for patriality from a number of Hong Kong students who had returned to Hong Kong after 5 or more years in the UK. The Home office have now explained the background to these decisions.

2. As you suspected, the judgment in the Shah case last year is, as Home Office Legal Advisers have confirmed, relevant to the interpretation of the expression 'ordinarily resident' in Section 2(1)(c) of the Immigration Act. This judgment and the similar one in the Cicutti case make more explicit than hitherto the significance of intention as a means of assessing the quality of a person's residence in the UK. 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.

3.

It is, of course, unfortunate that this judgment has coincided with the passage of the British Nationality Bill. The Home Office have had to refuse several applications which might previously have been granted. However, this has been unavoidable since they cannot question the courts' authority in matters of law. It is not a question of the Immigration Rules being applied more strictly: patriality falls entirely under Section 2 of the Act, and the Home Office have no element of discretion.

4.

The Home Office also point out 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 he would probably be regarded as ordinarily resident from the date when he became settled, the Home Office are having to look critically at the preceding period when the applicant was here as a student only, with no indication that he had any other reason for his stay. However, they are prepared

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