R v Secretary of State for the Home Department, ex parte Margueritte
| Jurisdiction | England & Wales |
| Judge | THE MASTER OF THE ROLLS,LORD JUSTICE OLIVER,LORD JUSTICE KERR |
| Judgment Date | 19 July 1982 |
| Judgment citation (vLex) | [1982] EWCA Civ J0719-1 |
| Docket Number | 82/0328 |
| Court | Court of Appeal (Civil Division) |
| Date | 19 July 1982 |
In the Matter of an Application by Louis Mario Margueritte for a Declaration and Judicial Review
And In the Matter of a Decision by the Home Secretary Contained in Letters Dated 31st July 1980 and 17th November 1980
[1982] EWCA Civ J0719-1
The Master of The Rolls
(Lord Denning)
Lord Justice Oliver
Lord Justice Kerr
82/0328
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
(MR.JUSTICE WEBSTER)
Royal Courts of Justice
MR. L. J. BLOM-COOPER Q.C. (instructed by Messrs. Bernard Sheridan & Co.) appeared on behalf of the Appellant.
MR. D. N. R. LATHAM (instructed by The Treasury Solicitor) appeared on behalf of the Respondent.
It is a proud thing to be a British subject: or, as the Statute puts it, to be a citizen of the United Kingdom and Colonies. No wonder then that Louis Margueritte wishes to attain it. He came originally from Mauritius. That island was acquired by Great Britain in 1814 by cession from France. It was a dependent territory under the Crown until 1968 when it became independent under the Mauritius Independence Act 1968.
Louis Margueritte was born in Mauritius in 1952 whilst it was still a British Colony. In October 1972 when he was 20 years of age he came to England and was given leave to enter as a visitor for a few months. He "overstayed" until June 1974 when he went to France for three weeks. In July 1974 he returned to the United Kingdom and was granted leave to enter as a visitor limited to one month. He again "overstayed" without leave. He obtained work and was not found out. He lived as if "ordinarily resident" here. In 1978 he married. His wife had come from Mauritius herself originally but she had been settled here for some years. On marrying her, he became entitled to take advantage of her settlement. He applied for indefinite leave to remain. He was granted it on 1st June 1978 and has resided here ever since.
In September 1979 he and his wife applied to the Home Office for registration as citizens of the United Kingdom and Colonies. She was registered, but he was not. He consulted solicitors and applied for Judicial Review. It was refused by Webster J. Mr. Margueritte now appeals to this court.
The Law
The law as to British Nationality is contained in a principal Act which was passed in 1948. Mr. Margueritte's application comes under an amendment to it which was made in 1971. It is section 5A, which says, so far as material, that the Secretary of State may cause to be registered as a citizen of the United Kingdom and Colonies any person of full age and capacity who satisfies the Secretary of State of five conditions. The relevant condition here is section 5A sub-paragraph (3), which says that "throughout the period of five years ending with the date of his application to be registered…he has been ordinarily resident in the United Kingdom…"
Mr. Margueritte's application was made on 12th September 1979, so the relevant five years were from 12th September 1974 to 12th September 1979. During that time he was an "overstayer" from 12th September 1974 to 1st June 1978, but from 1st June 1978 to 12th September 1979 he was here on indefinite leave.
It appears that at one time the Home Office would have regarded Mr. Margueritte as satisfying the condition of five years "ordinarily resident". They used to hold that if an "overstayer" improved his position by getting indefinite leave to enter he could count the whole of his time here as being "ordinarily resident" here. This was acknowledged in a letter of 31st July 1980 in which the Home Office said:
"Until recently, the Secretary of State was able to regard a person who had remained here, without permission, as having satisfied the 5 years' ordinary residence requirement for the purpose of an application for registration providing that person's stay was eventually regularised." Then the letter went on to say that the new practice had been adopted as a result of a House of Lords ruling. It went on to say: "However, in a recent House of Lords' judgment it was established as a matter of principle that a person who remains in this country after the period for which he was granted permission cannot be lawfully resident here."
We asked what was that House of Lords judgment. We were told it was Suthendran v. Immigration Appeal Tribunal (1977) A.C. 359. But, on examining it, it is plain it had nothing whatever to do with the words "ordinarily resident" at all. It was concerned only with the effect of the words "a person who has a limited leave". The Home Office were quite mistaken in thinking that it had any application here at all.
So we come to the words "ordinarily resident". Mr. Blom-Cooper submitted to us that this depended solely on the facts of the man's residence here and not on the legality or illegality of it. He suggested that an "illegal entrant" who came into this country clandestinely in a little boat was qualified to apply for citizenship as soon as he had been living here and working here openly for five years. Likewise, he said, to an "overstayer". He supported this by reference to some observations in Regina v. Governor of Pentonville Prison Ex Parte AZAM (1974) A.C. 18 by Lord Wilberforce at page 67 D-E and Lord Salmon at page 72 E-F. But those observations are to be explained by remembering that before 1st January 1973 it was only the landing here which was an offence. Once he got in, however unlawfully, and lived openly here he was to be regarded as lawfully here and could not be removed. I described the position myself in those periods in my judgment in Azam's case at pages 28–29. So it seems to me that those observations of Lord Wilberforce and Lord Salmon are not applicable to the present case and we have got to come back to the words of the Statute itself: "ordinarily resident".
When they were first used in the 1948 Act there were no such persons in existence such as "illegal entrants" or "overstayers". So I do not think we should construe the words "ordinarily resident" as at that time in 1948. It was in 1973 that those persons first came into being and staxted living in England. I think those words should be construed in their new setting. They have to be applied in a new setting and should be construed accordingly. In this new setting the Immigration Act 1971 contains specific provisions as to whether such a person is to be regarded as "ordinarily resident" here. There is a general provision in section 33(2) of the Immigration Act 1971 which says:
"It is hereby declared that, except as otherwise provided in this Act, a person is not to be treated for the purposes of any provision of this Act as ordinarily resident in the United Kingdom or in any of the Islands at a time when he is there in breach of the immigration laws." There is also a special provision in Schedule I paragraph 2 to the same effect.
Although that declaration is itself only "for the purposes of any pro- vision of this Act" I think it is permissible to have regard to it when considering the new section 5A of the 1948 Act. It is part of the new setting in which the words "ordinarily resident" have to be construed.
Applying it I am of opinion that an "illegal entrant" or an "overstayer" is not to be treated as "ordinarily resident" here at a time when he is in breach of the immigration laws. Furthermore, I think the broad principle which we stated in this court in the case of In re Abdul Manan (1971)1 W.L.R. 859 at page 861 still applies. I said:
"The point turns on the meaning of 'ordinarily resident' in these statutes. If this were an income tax case he would, I expect, be held to be ordinarily resident here. But it is not an income tax case. It is an immigration case. In these statutes 'ordinarily resident' means lawfully ordinarily resident here. The word 'lawfully' is often read into a statute:…It should be read into these statutes."
I would apply that principle here. Mr. Margueritte was not lawfully resident here during those five years which I have mentioned.
I would put it on an even wider ground. It is still a privilege to be a National of this country—to be registered as a citizen of the United Kingdom and Colonies—and to hold a British Passport. This privilege should not be accorded to a person who has come into this country unlawfully or has stayed here unlawfully in breach of our laws. He may, and often does, redeem his fault so as to get indefinite leave to remain. But that is as far as we should go for him. We need not give him British Nationality as well.
Then we were referred to the recent British Nationality Act 1941 but I need not consider those provisions today because they do not come into consideration in this case. I would dismiss the appeal accordingly.
I agree that this appeal fails. The question which has been much debated is: What is the natural meaning of the words "ordinarily resident"? Does it mean merely habitually resident or does it import some quality beyond mere habit and, in particular, that residence to be "ordinary" must also be regular in the sense of lawful? It was construed in the latter sense by this court in In Re Abdul Manan (1971) W.L.R. 859 in the context of the Commonwealth Immigration Acts of 1962 and 1968; but in Regina v. Governor of Pentonville Prison Ex parte Azam (1974)A.C. 18 both Lord Wilberforce (with whom Lords Hodson, Pearson and Kilbrandon agreed) and Lord Salmon (who dissented) were at one in expressing the view that, apart from the special provisions of section 33 of the Immigration Act 1971, all...
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