TNAG-1188-FCO40-1490-Implications-for-Hong-Kong-of-changes-in-the-British-nationa-1982 — Page 65

A Note on "Ordinary Residence"

in the United Kingdom under

section 2(1)(c) of the Immigration

Act 1981

Annex B

The law relating to "ordinary residence" was considered by the Courts in the United Kingdom in 1980. The cases are R v. London Borough of Barnet, ex parte Shah and another /1980 7 3 All E.R. 670 and Cic:tti v. Suffolk County Council 1980 73 All E.R. 689. Both cases were concerned with the meaning of "ordinarily resident" for the

purposes of reg. 13(a) of the Local Education Authority Awards Regulations.

2.

In the first case, which actually involved two separate applicants, the Court decided that -

3.

Cn

"The concept of "ordinary residence" embodied. a number of different factors, such as time, intention and continuity, each of which might carry different weight according to the context in which, and purpose for which, it was used in a particular statute. the true construction of reg. 13(a) the phrase "ordinarily resident" was used to distinguish between persons who were resident for general (or "ordinary") purposes and those who were resident for a specific, special or limited purpose. An important, but not the only, test in ascertaining the person's purpose or reason for being in the United Kingdom and his intention in coming and remaining there was to ask why that person was in the country."

?

The Court then applied that test to the facts of each applicant's case before them. In the first, the applicant had been born in Keyna and had come to England with his parents when he was 17. His father was admitted for "settlement" under a special voucher, while the applicant was given an entry certificate marked "Accompray parents settlement". Both he and his parents were admitted for an indefinite period. His parents returned to Kenya shortly after, while the applicant stayed with relations in England,

· attended school in England and returned to Kenya during school holidays. In his case, the Court, applying the tent mentioned in paragraph 2, decided that he had come to England for the purpose of settling, i.e. for all ordinary purposes of living, and not for the specific purpose of being educated, and was therefore "ordinarily resident"

4.

The facts of the second applicant's case were slightly different. He, too, was born in Kenya. He came to England when he was 17 on his own and was admitted for 2 months under a student's entry certificate which was extended from time t time. He had no right of entry into the United Kingdom. He stared with his brother and attended secondary schools. The