R v Immigration appeal tribunal (ex parte Siggins)
| Jurisdiction | England & Wales |
| Judgment Date | 11 February 1985 |
| Date | 11 February 1985 |
| Court | Queen's Bench Division |
Queen's Bench Division
Nolan J
N Blake for the applicant.
G Pulman for the respondent.
Cases referred to in the judgment:
Levene v Inland Revenue CommissionersELR [1928] AC 217.
Edwards v BairstowELRUNK [1956] AC 14: [1955] 3 All ER 48.
Shah v Barnet London Borough CouncilUNK [1983] 1 All ER 226.
Ordinarily Resident working holidaymaker whether temporary or occasional absences abroad broke period of ordinary residence in the United Kingdom whether intention to return preserved ordinary residence in the United Kingdom whether subsequent return re-inforced significance of that intention.
Practice and Procedure how Court should proceed where Tribunal hears no evidence and bases determination on inferences from primary facts.
The applicant was a Commonwealth citizen against whom the Secretary of State had decided to initiate deportation proceedings. That decision was challenged on appeal on the basis that the applicant had been ordinarily resident in the United Kingdom on 1 January 1973 and had been so resident for the last five years and came within the exempting provisions of section 7 of the Immigration Act 1971. It was established before the adjudicator that the applicant was ordinarily resident on 1 January 1973: it was held that the appellant's visits abroad, in particular a period of casual work in the United States, broke the qualifying period of last five years ordinary residence required under the Immigration Act. The Tribunal upheld the adjudicator's determination. On application for judicial review it was argued that applying the principles in Shah those periods of absence had not, on the facts, broken the applicant's period of ordinary residence in the United Kingdom.
Held: 1) Because the applicant could be ordinarily resident in more than one place at any material time, it was a question of fact whether in the circumstances he had remained ordinarily resident in the United Kingdom.
2) On a review of those facts and taking into account that the applicant's subsequent conduct showed he had carried out his earlier expressed intention of returning to the United Kingdom, he had remained ordinarily resident in the United Kingdom throughout the relevant period.
Nolan J: In this case Brian Frances Siggins seeks an order to quash the determination of the Immigration Appeal Tribunal dated 24 January 1984, whereby they allowed the appeal of the Secretary of State from the determination of the Chief Adjudicator in the applicant's favour. The application is brought with leave granted on renewal by Forbes J.
The facts of the matter appear from the adjudicator's decision. Mr Siggins entered the United Kingdom originally on 26 May 1972. It now seems clear that he did so as a working holiday-maker. The working holiday-maker is a creature recognised by paragraph 28 of HC 79 and now appears to have become extinct. That paragraph reads: Young Commonwealth citizens who come to the United Kingdom for extended holidays of up to five years before settling down in their own countries, and who satisfy the Immigration Officer that they intend to take only employment which will be incidental to their holiday, should be admitted for 12 months and should be advised that it will be open to them to apply for extensions of stay within the maximum of five years allowed.
From then until the time of these proceedings Mr Siggins' stay in this country was marked by frequent absences of varying length. At the time of the hearing before the adjudicator on 22 April 1983, his last entry had been on 7 February 1980. On 11 February of that year the Secretary of State refused his application for indefinite leave to remain in this country. His appeal against that refusal was dismissed by an adjudicator on 18...
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