TNAG-1188-FCO40-1490-Implications-for-Hong-Kong-of-changes-in-the-British-nationa-1982 — Page 59

CONFIDENTIAL # Z

機密

For information (15.6.82)

NOTE FOR EXECUTIVE COUNCIL

XCCI(82)26

PA

Copy No .200

ORDINARY RESIDENCE UNDER THE UK

IMMIGRATION ACT 1971

of 40

ник 340

RECEIVES

||

59

Introduction

DESK INDEX

AM/6

A

B

On 7 April 1981, Members noted XCCI (81′)TT

(a copy of which is at Annex A) concerning the Home Office's refusal of applications for patriality (i.e. the right of abode in the United Kingdom) from some Hong Kong students who had returned to Hong Kong after five or more years in the UK. Members noted that the Commissioner, London Office had been requested to bring this matter to the attention of the Foreign and Commonwealth Office to find out if anything could be done to revert to the previous position (where virtually all such applications had been approved).

Advice from the Foreign and Commonwealth Office

2

(a)

(b)

(c)

The FCO has since advised as follows

the judgments in two recent Court cases (Annex B) were relevant to the interpretation of the expression "ordinarily resident" in section 2(1)(c) of the Immigration Act 1971 (see paragraph 6 below). These judgments had made more explicit the significance of intention as a means of assessing the quality of a person's residence in the UK. A person who stays there for a specific and limited purpose only (e.g. to study for a qualification) and in a temporary capacity (e.g. as a student supported by parents resident overseas) is not to be regarded as "ordinarily resident";

the Home Office had had to refuse several applications on the basis of this interpretation. This was not a question of the Immigration Rules being applied more strictly patriality falls under section 2 of the Immigration Act 1971 and the Home Office have no element of discretion;

can they question the courts' authority in matters of law;

since 1965 students had normally been admitted into the UK on time conditions. In a minority of cases, the student had undertaken a protracted course of studies, had been resident in the UK

G.S. 166

CONFIDENTIAL

機密