C (an Infant) v. Entry Clearance Officer, Hong Kong
| Publisher | United Kingdom: Asylum and Immigration Tribunal / Immigration Appellate Authority |
| Author | Immigration Appeal Tribunal |
| Publication Date | 25 May 1976 |
| Citation / Document Symbol | [1976] Imm AR 165 |
| Type of Decision | TH/6363/75(710) |
| Cite as | C (an Infant) v. Entry Clearance Officer, Hong Kong, [1976] Imm AR 165, United Kingdom: Asylum and Immigration Tribunal / Immigration Appellate Authority, 25 May 1976, available at: https://www.refworld.org/cases,GBR_AIT,3ae6b69e0.html [accessed 4 November 2019] |
| Disclaimer | This is not a UNHCR publication. UNHCR is not responsible for, nor does it necessarily endorse, its content. Any views expressed are solely those of the author or publisher and do not necessarily reflect those of UNHCR, the United Nations or its Member States. |
C (an infant) v THE ENTRY CLEARANCE OFFICER, HONG KONG, TH/6363/75(710)
Immigration Appeal Tribunal
[1976] Imm AR 165
Hearing Date: 25 May 1976
25 May 1976
Index Terms:
Patriality -- 'Right of abode' -- Illegitimate child, citizen of the United Kingdom and Colonies, born in Hong Kong -- Mother not qualified by citizenship (or otherwise) under Immigration Act 1971 to confer statutory right of abode -- Natural father born in United Kingdom and father's parents born and married in United Kingdom -- Entry to United Kingdom sought in capacity of student -- Whether applicant should be given 'indefinite leave to enter' under immigration rule by reason of paternal ancestry -- Immigration Act 1971, s 2(1)(b), 2(3)(a) -- HC 79, para 27.
Student -- Entry clearance -- Illegitimate child (17 years old) not qualified through mother for 'right of entry' under Immigration Act 1971 -- Intention to seek statutory right to remain in United Kingdom indefinitely on completion of studies -- Whether entitled to "indefinite leave to enter" under immigration rule by reason of paternal ancestry in United Kingdom though not coming for purpose of employment -- Whether entry certificate properly refused -- Immigration Act 1971, s 2(1)(b), s 2(3)(a) -- HC 79, paras 19, 27.
Held:
The appellant girl was an illegitimate child, a citizen of the United Kingdom and Colonies born in Hong Kong. Her mother did not fulfil the requirements of s 2(1)(b) of the Immigration Act 1971 so as to confer on the appellant a statutory 'right of abode' n1, but her natural father had been born in the United Kingdom and his parents had been born and married there. The appellant sought entry to the United Kingdom as a student, but her application was refused by the entry clearance officer because he was not satisfied (under para 19 of HC 79) that she intended to leave the United Kingdom on completion of her studies. The adjudicator to whom she appealed affirmed the decision of the ECO. On further appeal to the Tribunal it was submitted that although she did not qualify as a patrial for a right of abode under the Immigration Act 1971 (s 2(1)(b) and 2(3)(a) she should be granted 'indefinite leave to enter' under para 27 of HC 79 because her paternal grandparents were born in the United Kingdom, n2 and notwithstanding that her application for entry had been as a student and not in order "to take or seek employment" (under para 27) it would be open to her after arrival to apply for a variation of conditions to enable her to take employment and such an application could be granted under the limited discretion provided in paras 4 and 5 of HC 80. n1 Section 2(1)(b) of the 1971 Act reads as follows: "(1) A person is under this Act to have the right of abode in the United Kingdom if --... (b) he is a citizen of the United Kingdom and Colonies born to or legally adopted by a parent who had that citizenship at the time of the birth or adoption, and the parent either (i) then had that citizenship by his birth, adoption, naturalisation or (except as mentioned below) registration in the United Kingdom or in any of the Islands; or (ii) had been born to or legally adopted by a parent who at the time of that birth or adoption so had it;" Section 2(3)(a) provides that for the purposes of sub-s (1) "'parent' includes the mother of an illegitimate child". n2 Paragraph 27 of HC 79 is set out on p 167, post. Held (dismissing the appeal): (i) The provisions made in respect to the rights of children in a number of recent statutes showed that it had been considered necessary specifically to mention illegitimate children when included in the word 'children', so that in the Tribunal's view the law as enunciated in Re M (an infant) ([1975] 2 QB 479; [1955] 2 All ER 911 at p 912) in respect of the father of an illegitimate child was still relevant, and accordingly on a true construction the word 'grandparents' in para 27 of HC 79 n2 could not be taken to include the paternal grandparents of an illegitimate child; n2 Paragraph 27 of HC 79 is set out on p 167, post. (ii) in any event, para 27 of HC 79 could have no application because the appellant had not applied for entry in order to take or seek employment but specifically to come here as a student n2; and n2 Paragraph 27 of HC 79 is set out on p 167, post. (iii) on the facts the Tribunal was satisfied that at the time the appellant made her student application to the ECO she fully intended to remain in the United Kingdom permanently.Counsel:
Lawrence Grant (The Law Clinic, University of Kent at Canterbury), solicitor for the appellant. K. E. R. Rogers for the respondent. PANEL: D. L. Neve Esq (Vice-President), G. J. Brown Esq, Mrs J. D. Caine.Judgment One:
THE TRIBUNAL: The appellant is a citizen of the United Kingdom and Colonies (Hong Kong) 17 years of age. She applied to the entry clearance officer in Hong Kong for an entry certificate to enable her to come to this country to take a course in the English language at the Language Tuition Centre, Oxford Street, London. Her application was refused because the entry clearance officer was not satisfied that she intended to leave the United Kingdom when her studies were complete. She appealed against the refusal and her appeal was heard by an adjudicator (Sir Norman Costar) who dismissed it on 6 November 1975. He granted leave to appeal to the Tribunal. Two matters were canvassed before the adjudicator. First, the question of the appellant's intentions; and secondly the question whether or not the appellant was admissible to this country having regard to her parentage. The adjudicator found against the appellant in respect of each of these matters and dismissed her appeal. Before us the two main grounds of appeal have again been pursued by Mr Grant. With regard to the question of the appellant's parentage, however, the argument advanced before us is somewhat different from that which was advanced before the adjudicator. In so far as the appellant's parentage is concerned, there is no dispute as to the facts. She is the illegitimate child of an English father born in this country and a woman called Anna Lau Ka Sook. Her parental grandparents were both born in the United Kingdom and were married in Richmond in 1898. Before the adjudicator it was argued that the appellant was patrial by reason of s 2(1)(b) of the Immigration Act 1971. However, the adjudicator interpreted this section as permitting patriality to be established in the case of an illegitimate child only through the mother. n3 His reasons for coming to this conclusion are fully set out in his determination and we agree with them. n3 The relevant provisions of s 2 of the Act are set out in footnote 1. At the appeal before us, however, Mr Grant informed us that he no longer relied upon the claim that the appellant is patrial under the section mentioned, but he still maintained that she should have been admitted in view of her ancestry by reason of para 27 of HC 79 which reads as follows:"Upon proof that one of his grandparents was born in the United Kingdom and Islands, an applicant who wishes to take or seek employment in the United Kingdom will be granted an entry clearance for that purpose. A passenger holding an entry clearance granted in accordance with this paragraph does not need a work permit and, subject to para 12, should be given indefinite leave to enter."
Mr Grant has argued that both the appellant's paternal grandparents were born in the United Kingdom and thus the first requirement of para 27 is fulfilled. With regard to the reference to an applicant "who wishes to take or seek employment in the United Kingdom" n4 he has submitted that, although it is true that the appellant in this case was applying to come to this country to take a course of study, nevertheless if admitted as a student it would be open to her after her arrival to apply for a variation of her conditions to enable her to take employment here, since paras 4 and 5 of HC 80 provide for a limited discretion in such cases, provided the application is approved by the Department of Employment. n4 Paragraph 27 appears in Part III of HC 79 under the general heading "Passengers coming for employment or business or as persons of independent means", and para 27 is headed "Exception on grounds of United Kingdom ancestry". In reply to these submissions Mr Rogers has made the following points. It was conceded by Mr Grant that an illegitimate child cannot claim patriality under s 2 of the Immigration Act 1971 by virtue of his father's citizenship (he can claim through his mother's citizenship because this is expressly provided for), and he (Mr Rogers) has referred us to various authorities for the proposition that the word "parent" in a statute does not include the father of an illegitimate child. The authorities to which he has referred us are: the third edition of Halsbury's Laws of England Vol 21, at p 136, where it is stated: "Generally, however, in the absence of a contrary intention, express or implied, and unless it is more consonant with the object of the statute to include illegitimate children, all statutory provisions respecting children refer exclusively to legitimate children"; the judgment of VAUGHAN WILLIAMS LJ in the case Woolwich Union v Fulham Union n5 in which the following passage occurs: n5 [1906] 2 KB 240. "He relied for the purpose of that argument upon the technical rule of law that the word 'child' or 'children' means a legitimate child or legitimate children, and that meaning must prima facie be given to the word whenever it occurs in a statute. It is of course true that that is only prima facie the meaning to be given to the word, and that a wider meaning may, in the case of some statutes, be given to it, so as to include an illegitimate child or illegitimate children, where that meaning is more consonant with the object of the statute"; and lastly the judgment of DENNING LJ (as he then was) in the case of Re M (an infant) n6 in the course of which he said this: n6 [1955] 2 QB 479; [1955] 2 All ER 911. "In my opinion the word 'parent' in an Act of Parliament does not include the father of an illegitimate child, unless the context otherwise requires"; and later in the judgment: "The natural father has no right at law to succeed on intestacy. He has no rights at all, so far as I can see, though no doubt he can apply for the child to be made a ward of court just as anyone else can. The truth is that the law does not recognise the natural father at all. The only father it recognises as having any rights is the father of a legitimate child born in wedlock." Mr Rogers has argued that if an illegitimate child cannot acquire rights under the immigration rules through her natural father, a fortiori she can have no claim through her natural father's parents. He therefore submits that in para 27 the word "grandparents" cannot refer to the paternal grandparents of an illegitimate child. His second submission with regard to para 27 of HC 79 was that in this case the appellant's application was to come here as a student and not in order to take employment; and although she told the entry clearance officer that she wished to take up permanent residence in the United Kingdom by applying for a United Kingdom passport if she was admitted, there was no mention of her "wishing to seek employment" and the whole application was conducted upon a "student" basis. This being so, Mr Rogers has suggested that para 27 has no application. In answer to Mr Rogers' submissions regarding legitimacy, Mr Grant has submitted that the construction to be placed upon the words in s 2 of the Immigration Act is not necessarily the construction to be put upon the words in para 27 of HC 79, and this because the provisions contained in s 2 with regard to legitimacy stand on their own, whereas the provisions of para 27 are contained in rules made by the Secretary of State by virtue of s 3(2) of the Immigration Act 1971. Mr Grant's submission was that in making the rules under this section, and particularly in making the rule in para 27 of HC 79, the Secretary of State was deliberately widening the ambit of the qualifications which might enable an applicant to gain admission to this country: and in his submission, having widened the ambit of ancestry from "parents" to "grandparents", it was not unreasonable to suppose that this was to include the grandparents of illegitimate children. The tendency of modern Acts, Mr Grant has suggested, is to bestow greater rights and recognition upon illegitimate children; and in this connection he has referred us to the Family Law Reform Act 1969, the Guardianship of Minors Act 1971, and the Matrimonial Causes Act 1973. We have referred to these Acts; the Family Law Reform Act 1969, which deals with the property rights of illegitimate children, provides that the word "child" in certain specified Acts (which do not include any immigration statutes) is to be taken to include an illegitimate child. In the Matrimonial Causes Act 1973 the interpretation section provides that for the purposes of that Act "child" includes "illegitimate child". Section 14 of the Guardianship of Minors Act 1971 provides that certain other sections of that Act shall apply to illegitimate children as well as to legitimate children. We feel it is to be noted that in the case of each of these three Acts it was considered necessary specifically to provide that in the case of certain legislation "child" was to include "illegitimate child". To our minds the very fact that it was necessary to make these provisions indicates clearly that the law as enunciated by DENNING LJ in the case quoted still stands. We therefore feel that in para 27 "grandparents" cannot be taken to include the paternal grandparents of illegitimate children. If we are wrong in this, in any event, we are of opinion that para 27 would not apply to the appellant in this case because she applied to come to this country as a student and not in order to take or seek employment. In our view, therefore, the appellant's claim on the ground of her ancestry must fail. There remains the question of her intentions to consider, and in this regard the relevant passages of the entry clearance officer's statement read as follows: "Mr Lam [the entry clearance officer] further asked why she had enrolled for an English course only, when she could take a similar course of study in Hong Kong. She stated that the purpose of her application was to obtain entry to the United Kingdom expeditiously so that she could enrol at another school after she had been admitted. Later in the explanatory statement in para 6 it is stated:"When Mr Lam asked her about her mother's proposed visit to Peru, she stated that her mother had not made any definite travel arrangements yet. When she was asked if she would join her mother in Peru when she had completed the course she stated she would not because she intended to stay indefinitely in the United Kingdom. She added that as her late father was born in the United Kingdom she would apply for a United Kingdom passport after she had been admitted as a student. She expressed her belief that is she obtained a United Kingdom passport she would be entitled to free admission to the United Kingdom as if she were a resident there."
Mr Grant has submitted that the appellant was at all times perfectly open with the entry clearance officer as to her position and her intentions, and there was no attempt whatsoever at deception. He has referred us to the case of the Entry Certificate Officer, Hong Kong v Lai n7 in which the Tribunal held that a distinction should be made between a person's wish and his intentions. He has submitted that the appellant only intended to remain in the United Kingdom permanently if she were legally permitted so to do, and that when she told the entry clearance officer that this was her intention she believed that she was entitled under the regulations to remain in this country permanently. The fact that she had been honest and open should indicate that she only wished to remain in the United Kingdom permanently if this were permitted, and that if this were not so she would return to Hong Kong at the expiration of any leave which she might be granted. n7 [1974] Imm A R 98 TH/1642/73(246). Mr Grant has put in evidence a letter from the appellant to her solicitor in Hong Kong, dated 5 May this year which reads as follows: "Dear Mr Cotton, I am writing to confirm our conversation regarding my application for an entry certificate into the United Kingdom. The reason I stated in my application that the length of my proposed stay in the United Kingdom was indefinite was that at the time I was under the impression that as my father was a citizen of the United Kingdom I was entitled to stay here indefinitely. It now seems that I was mistaken. As I now understand the position my present wish is to pursue the 4 weeks' intensive English course then to study 'A' levels and if I am successful then to study medicine. If I am successful in qualifying as a doctor it is my definite intention to return to Hong Kong to be with my mother. I would also return if I fail any of the examinations and am advised by my tutors that I am not likely to succeed on re-examination." This letter is attached to a letter from Hastings & Co, her solicitors, which reads as follows: "I enclose an original letter dated the 5th instant which I received from (Miss C) following a long discussion with her. I am quite satisfied that the intentions expressed by (Miss C) in this letter as to her return to Hong Kong on completion of her studies or if she should unfortunately fail to achieve her object of qualifying as a doctor of medicine are quite sincere and she has promised me not only as her solicitor but as a friend of her family that she will abide by them." Mr Rogers has asked us to compare this letter from the appellant, dated 5 May this year, with a letter which she wrote dated 12 December 1974. In the course of this letter the appellant said: "Firstly I herewith state that I never mentioned verbally or in writing that I intend to stay permanently in England after completing my studies." This seems to be in contradiction of what she said in her letter of 5 May ("The reason I stated in my application that the length of my proposed stay in the United Kingdom was indefinite was that..."). Mr Rogers has submitted that what we have to consider is what the appellant's intentions were at the time that she made the application to the entry clearance officer. Having considered the matters which we have outlined and the submissions made to us by Mr Grant and Mr Rogers we are satisfied that when she made the application to the entry clearance officer the appellant fully intended to remain in this country permanently and we are not satisfied that she would have returned to Hong Kong upon the expiration of any leave which she might have been granted. Mr Grant's second ground of appeal must also fail therefore.DISPOSITION:
Appeal dismissed.Copyright notice: Crown Copyright
