HC Deb 24 July 1981 vol 9 cc793-800

Motion made, and Question proposed, That this House do now adjourn.—[Mr. Wakeham.]

2.30 pm
Mr. Peter Archer (Warley, West)

One of the more attractive features of the House is its capacity to range within a single day from a debate of global importance to the problem of an individual. We have been debating the future of mankind. I wish to tell the House the story of one man, although I suspect that it may be the story of others, too.

Mr. Pritam Singh is my constituent, because he lives in West Smethwick. Indeed, that is what the story is about. However, in investigating his case I learnt things that may be of assistance to other hon. Members whose constituents are in a similar predicament. Mr. Pritam Singh is a Sikh gentleman of 62. He came to this country more than a quarter of a century ago. He has here a home and wife, and he reared his family here. To my knowledge, no one has queried his honesty, his respectability, his standing in the community or his assiduity in observing his obligations. But, like many people who change their country of residence, he retains links with his country of origin. He still has connections with India. In particular, his father is still living there.

Given that Mr. Pritam Singh is 62, it does not require a computer to calculate that his father is a gentleman of advanced years, and for some years he has been in poor health. So Mr. Pritam Singh spends much of his time caring for his father and looking after his affairs.

I do not know whether he would agree, because I have not asked him, but I would describe him as a man with two homes. That does not fit into the tidy schemes designed by administrators. They want to know where a person lives, and I doubt whether there is space on their forms for more than one address. If home is where the heart is, they do not understand that a heart may be torn. There is no place in their scheme for a David Livingstone, a Lawrence of Arabia or a John Wesley.

Mr. Pritam Singh is a simple man. He can understand a rule if it is explained to him, and he believed, in his naivety, that the law was intended to be widely known and fully understood by those whose lives are governed by it. He had unconditional leave to reside in this country, and he believed that his home here was his castle. But he knew that if he spent more than two years abroad he risked losing his right to reside here, so when he was in India attending to his father's affairs he took care to return to the United Kingdom within the two-year period.

Poor Mr. Pritam Singh. The world is not as simple as that. The rules are certainly not as simple as that, and the minds of those who administer them are vastly more devious. If it is any consolation to him, he is not unique in not making a study of the rules each night before he retires to bed. I discovered the position only when I had to investigate his case.

The immigration rules of 1973, like those of 1980, provide that a passenger returning to the United Kingdom shall be admitted for settlement if he satisfies the immigration officer that he was "settled" in the United Kingdom when he left and that he has not been away for more than two years. In practice, that meant that, provided that when he last entered the United Kingdom he was admitted for an indefinite period, and that he had not been away for more than two years, he was again given indefinite leave to enter. The standard Home Office letter issued to a person given indefinite leave reads: You are now free to remain permanently in the United Kingdom … If you leave the United Kingdom you will normally be readmitted at any time within two years of your departure". Solicitors who ever have occasion to inquire more closely are normally told: A person who has been accepted for settlement and who returns to the United Kingdom within two years of his departure will continue to be treated as a returning resident provided he is admitted for settlement on each occasion and provided he always returns within two years of his last departure.

Among the minority communities everyone believed that they understood the position and knew what the regulations were. But that was too simple and straightforward for the administrative mind. It was observed that some people were returning to the United Kingdom just within the two-year period. The problem about giving people a clear right is that they tend to avail themselves of it, especially if it is widely known and clearly understood. I have still not grasped what mischief was alleged to have arisen from permitting people like Mr. Pritam Singh to have two homes, and to keep alive their right to reside in the United Kingdom with their families by confining journeys abroad within a two-year period.

I accept, as the Minister of State pointed out to me in correspondence, that between December 1973 and April 1980 Mr. Pritam Singh spent three periods in India, each of them of nearly two years. So, I imagine have many white people who would still say that their home was in the United Kingdom.

It was decided that that had to be stopped, so the practice was changed. The clear, simple rule no longer operated. To satisfy the immigration officer that a person has been settled in the United Kingdom when he last went abroad he has to show not only that he was here with indefinite leave to stay but that he was ordinarily resident here. After spending some time in India, Mr. Pritam Singh returned to the United Kingdom on 17 December 1977 and he was given indefinite leave to enter. On 1 July 1978 he went to India again and returned to the United Kingdom on 20 April 1980.

As so often happens on such occasions, there is probably not complete agreement between Mr. Pritam Singh and the immigration officer about what was said, but I doubt whether the conflict is wide. When he had last entered the United Kingdom he had been given indefinite leave to enter and he returned within the two years. The immigration officer asked him how long he intended to remain in the United Kingdom before he went to India again. He said that he would probably be going to India after another five months. Mr. Pritam Singh says that the immigration officer said to him, "You bloody people always come back just inside the two years."

Mr. Pritam Singh was given leave to enter, limited to six months. That completely changed his status, as it was intended to do, for he would not be entitled to be here after a further six months and when he left the United Kingdom it would be a final farewell. If he returned it would not be as someone who was settled here when he last went abroad. Thus, he would have no claim to be admitted. After living in the United Kingdom since 1955, having made his home with his wife and rearing his family here, Mr. Pritam Singh was no longer entitled to be in the United Kingdom and he is now in India.

I have exchanged much correspondence with the Minister of State, the hon. Member for Aylesbury (Mr. Raison). He has helpfully suggested that Mr. Pritam Singh might apply to come here on the ground that he was married to a lady who was settled here. But I am not sure how that application would have been treated, because his wife was not born in this country and the rules about that have changed as well.

Mr. Pritam Singh's life was shattered because the administrators had no place in their scheme for men with two homes. What harm was he doing? Why is it so vital that he should spend all his time here or all his time in India? It has never been explained to him or to me.

The House will recognise two things about the change in procedure which led to Mr. Pritam Singh's predicament, both of them contrary, in my submission, to what the rule of law sets out to achieve.

First, the status of people is no longer regulated by a clear rule. If one asks what counts as being ordinarily resident in the United Kingdom, one is told that it depends on the facts. If one asks "What facts?", one is told "All the relevant facts."

For Mr. Pritam Singh, the facts were that he had his home, his wife and his family here. But that was not enough, and people such as Mr. Pritam Singh are no longer clear what they have to do in order not to endanger their status. We are not dealing with the criminal law, of course, and no one suggests that any blame attaches to Mr. Pritam Singh. But his conduct attracted a very severe penalty, and there is no way to explain clearly to someone in his position what he has to do in order to avoid that penalty.

Secondly, the change in practice was not made known. There was nothing in the media about it, because the media were not told. If Mr. Pritam Singh had looked in the rules he would have found nothing there about it. The change was known to immigration officers but it remained sealed within their breasts.

The rule of law requires that the rules of which we are governed should be widely known. Indeed, I understand that when the Minister of State was invited to embody this change in practice in the 1980 rules he declined for what may very well have been good reasons, but the matter was still not made clear.

I understand that the story is to have a happy ending. The hon. Member for Aylesbury, as we all know, is fully occupied at the moment, and the hon. and learned Member for Royal Tunbridge Wells (Mr. Mayhew) has kindly agreed to give me an answer today. I am most grateful to him. He has also been kind enough to tell me in advance of the debate that the file has been looked at again and that he may come as the bearer of glad tidings. If so, he will earn my gratitude and the gratitude of Mr. Pritam Singh and his family, because justice delayed is not really as bad as justice denied, despite our aphorism.

My hon. Friend the Member for Glasgow, Queen's Park (Mr. McElhone), in the previous debate, referred to the joy in Heaven over the repentant sinner. I suspect that when that repentant sinner comes from the Home Office, there is in Heaven the equivalent of a champagne celebration.

I thought it right to tell the House this story because I hope that the hon. and learned Gentleman can offer us some comfort, not only for Mr. Pritam Singh but for all those who are dependent upon this practice. Perhaps he can even go further and assure us that the Home Office will never treat people quite so contemptuously again. We all of us speak of the rule of law when it suits our book, but I wonder whether we realise its immense practical importance for the lives of people such as Mr. Pritam Singh.

Mr. Pritam Singh belongs to a community which I have the privilege of knowing very well. The people in that community respect the rule of law. But the rule of law applies to governed and governors alike, and I look forward to being assured by the hon. and learned Gentleman—just as I am pretty sure in my own mind—that in the Home Office, too, there are those who believe in the rule of law.

2.43 pm
The Minister of State, Home Office (Mr. Patrick Mayhew)

I confess to a certain feeling of regret that the hon. and learned Member for Warley, West (Mr. Archer), in the course of properly pursuing the interests of a constituent, adopted a rather florid style of presentation of this difficult case, which I do not believe is appropriate either to his position as somebody who has had experience of the administration of these difficult matters, as a former Law Officer, or to the task that officials have, on behalf of all of us in this country, to perform in administering what are necessarily difficult and rather complex immigration rules. These rules are necessary because any crowded island such as ours has to control the right to reside in it, in a manner that is careful and fair. It is a reasonable requirement, I would submit, for readmission to the United Kingdom that one should have been settled here. It goes back to the Immigration Act 1971 that "settled" imports having been ordinarily resident here.

I shall deal in reasonable detail with the history of the application, which, as the right hon. and learned Gentleman said, has a happy conclusion. However, I thought that I ought to begin by rebutting the not entirely temperate manner in which the right hon. and learned Gentleman dealt with the history.

The case to which the right hon.and learned Gentleman referred raises an aspect of immigration control that is often misunderstood, and I am glad of the opportunity to explain the position of persons such as Mr. Singh. I shall do that before dealing with the history of the application.

I ought to begin by setting out the relevant provisions in the immigration rules. Paragraph 56 of the rules provides that a Commonwealth citizen—which Mr. Pritam Singh is—who satisfies the immigration officer that he was settled in the United Kingdom at the coming into force of the Immigration Act 1971—that is, on 1 January 1973—and that he has been settled here at any time during the two years preceding his return is to be admitted for settlement. There is, of course, provision for the admission of passengers who have been away for longer than two years, but that is not a consideration in this case.

Elsewhere in the immigration rules a person is stated to be settled in the United Kingdom when he is ordinarily resident here without having entered or remained in breach of the immigration laws and is free from any restriction in the period for which he may remain. The term "ordinarily resident" is not defined in the rules or in the Immigration Act, but, as various court judgments have indicated—and not only in immigration Control—is to be determined in any particular case as a question of fact and degree according to all the circumstances. That is about as fair an approach as one can get to any issue of fact of this nature. It is the basic common law approach.

The practical application of the rules gives rise to no difficulty in the vast majority of cases, and until the latter part of 1978 it was generally accepted that return within the two-year period was all that was required to establish a claim to returning resident status. Determinations by the appellate authorities in the few cases of dispute reaffirmed that view and it was the Home Office practice to admit for settlement with in two years of departure any person who was free of conditions when he left. But later that year the Government of the day became aware of an increasing number of people with no real connection with this country who sought to preserve their resident status by judiciously timed visits where the element of ordinary residence was clearly lacking. Steps to curb what was properly seen as a misuse of the immigration rules were introduced. The Government of that day were not the present Government, but that of which the right hon. and learned Gentleman was a distinguished member.

The "two-year rule" does not in itself mean that a person necessarily retains his ordinary residence in this country throughout a prolonged absence overseas. As I have said, ordinary residence is a matter of fact and degree, and the test, broadly speaking, is whether someone's real home was in the United Kingdom at the relevant period and whether a continuing connection existed sufficient to maintain the status of ordinary residence. Where that was in doubt, the new arrangements provided for the admission of a passenger claiming resident status for six months, during which time it was open to him to put forward evidence to show that, whatever may have been the situation in the past, in future he intended living here.

I cannot for the life of me see how it represents a fundamental breach of the rule of law or the principles of natural justice that somebody in those circumstances should be admitted for only six months in the first instance so that he may establish that in future he intends to live here.

As I am sure the House will appreciate, the question of ordinary residence can raise complex issues, but some of the pointers to be taken into account in considering whether ordinary residence is established in a particular case would be ownership or current tenancy of property for the person's own residential use, whether the person had permanent employment either here or abroad, the length of his previous stay, the presence of close family here, and absence of evidence of an intention to make his real home elsewhere. The grant of indefinite leave to enter by an immigration officer does not of itself make a person settled in this country; he can become ordinarily resident only after he has been given leave to enter.

I deal with Mr. Pritam Singh's position. The right hon. and learned Gentleman said that Mr. Pritam Singh came to this country in about 1955. I have no hesitation in accepting that. I have no hesitation, either, in accepting what the right hon. and learned Gentleman said at the outset, that no one has ever questioned Mr. Pritam Singh's integrity in any way. I acknowledge that freely and readily. I accept also that he was settled here on 1 January 1973, the date on which the Act came into force.

We have not seen Mr. Pritam Singh's earlier passports, but we know that between December 1973 and his most recent return to this country in April of last year he spent the greater part of his time overseas. When he arrived here on the last occasion he told the immigration officer that he wished to stay for five months to visit his son and that his wife had arrived back in the country about three months previously.

The immigration officer was aware that Mr. Pritam Singh had formerly been resident in the United Kingdom, and he considered whether Mr. Pritam Singh satisfied the criteria for returning residents, to which I have already referred. He did not doubt that Mr. Pritam Singh was settled in the country on 1 January 1973, but, as I have explained, in deciding Mr. Pritam Singh's application for leave to enter the officer also had to determine whether it could properly be said that he had been ordinarily resident here during any part of the preceding two years.

Taking full account of all the circumstances presented to him, the officer found himself not satisfied, as is required by the immigration rules, that Mr. Pritam Singh qualified for entry as a returning entry. In the course of the preceding 6¼ years, he had spent almost 5¾ years abroad. Furthermore, he said that he would be returning to India within five months. Nevertheless, the officer felt able to grant him leave to enter for six months under the practice to which I referred a few moments ago, so that he within that period might have the opportunity to establish that he intended in the future, never mind the past, to make his home here.

It was shortly afterwards that Mr. Pritam Singh, as he was perfectly entitled to do, approached the right hon. and learned Gentleman, who wrote to my hon. Friend the Minister of State, the hon. Member for Aylesbury (Mr, Raison), on 12 May 1980 asking that the question of Mr. Pritam Singh's status should be investigated. In the ordinary course of a case of doubt of this kind, evidence of resumption of ordinary residence would be sought under the arrangements introduced in November 1978, to which I have already referred. These arrangements are currently, under review. I have already privately indicated to the right hon. and learned Gentleman that they are in the process of review in the Home Office. These arrangements provide that where clear indication is given that an applicant has so arranged his affairs as to show that he intends to reside here permanently, this can usually be accepted as constituting the re-establishment of ordinary residence.

There was, unfortunately, considerable delay before the initial information about Mr. Pritam Singh's passports arid their contents, requested of Mr. Pritam Singh, could be obtained. By that time, it so happened, unfortunately, that he had been forced by family illness overseas to return to India. I say frankly that I think that it would, with hindsight, have been better if he had been asked for evidence that he was ordinarily resident here at the time of his last visit in 1977–78, or, alternatively, told that he could provide evidence to show that he had re-established ordinary residence on the present occasion. It was, in the event, suggested to him that if he wished to return to this country his best course would be to apply to the British high commission in New Delhi.

Our information to date is that Mr. Pritam Singh has not yet done so. Should he apply within the usual two-year period, our review of the facts now available leads to the conclusion that it would, in all the circumstances, be right to grant Mr. Pritam Singh the facility of a returning resident entry certificate without further questions. If the right hon. and learned Member will let me have Mr. Pritam Singh's address in India, we shall ask the entry certificate officer to get in touch with him, to explain this decision and to arrange for the necessary endorsement in his passport to be made straight away and without delay, so as to ensure that Mr. Pritam Singh is readmitted for settlement on his return.

Mr. Archer

I am, of course, very grateful for the announcement which the hon. and learned Gentleman has been able to make, and particularly for the assurance that there will not be the usual delays which, perhaps unavoidably, sometimes accompany such applications. However, since we have a moment, perhaps I may ask the hon. and learned Gentleman to address his mind to what was part of the burden of what I tried to say. If I have a close relative overseas and I spend a great deal of time with that relative because of his illness, I shall never be precluded from returning to my home in this country. It seems that even now, because of the interpretation of being habitually resident here, if Mr. Pritam Singh spends a great deal of his time with his ailing father he will lose the right to return to this country. Does that seem wholly fair?

Mr. Mayhew

He does not lose the right to return to this country. In all these matters the question whether one is ordinarily resident here is determined, as case law has established, by a consideration of all the facts and circumstances of each case. It is a matter of fact in each case as to which way the balance is struck. But in any event, as I indicated, it is not a question of the right to return being lost. The practice is that the person may return for a period of up to six months, in which time it is open to him to establish that for the future he intends to make his home here. So nothing is lost.

However, to revert to what I said at the outset, all who take an interest in the control of immigration to this country must, if they are fair, acknowledge that this is a country which is highly populated and, in many areas, overcrowded. They must acknowledge that it is as much in the interests of those who wish to immigrate here from overseas that rules should be clearly, fairly and carefully applied, as it is in the interests of those who are indigenous to this country.

Therefore, it is not right to say that the rules and their application, which are relevant to this history of Mr. Pritam Singh, evidence a capricious approach to these matters, or that—I refer here to a particularly florid passage of the right hon. and learned Gentleman's speech—the Home Office was indifferent to the rule of law. That is not right. It does not assist in any way Mr. Pritam Singh's case or its presentation.

These matters are seldom all right or all wrong. I have acknowledged that it would have been better, in the instant case, if a fuller explanation of the Home Office practice had been given to Mr. Pritam Singh at the time.

I hope that the matter has now been clearly explained. I trust that Mr. Pritam Singh will feel able to take up the offer that has been made. If he does so, I give the assurance that no further questions will need to be asked and that he will be able to return here.

Question put and agreed to.

Adjourned accordingly at two minutes to Three o'clock.