29 March 2009

BM's status as a resident

So what does Binyam Mohamed's residential status mean?

The Times Reports, "[f]or seven years he was held in detention in four countries, claiming that he was tortured brutally in Morocco before being sent to Guantánamo Bay, where his presence as a UK resident caused friction between London and Washington.

Yesterday Binyam Mohamed, 30, arrived back in Britain – where he has no home or family – presenting the Government with a complex security and immigration dilemma.

Mr Mohamed, who was arrested in Pakistan in 2002 on suspicion of plotting to detonate a radioactive “dirty bomb” in the United States, was detained – not arrested – after flying in to RAF Northolt, northwest London, aboard a Gulfstream jet chartered by the Government to fly him back from Cuba.

The Ethiopian-born man who came to Britain in 1994 to claim asylum, was yesterday held under the Terrorism Act 2000 and questioned by the Immigration Service and the Metropolitan Police for five hours.

He was granted temporary admission to Britain for two years. The Home Office must now try to decide how to deal with any application by Mr Mohamed to stay in this country permanently, should he wish to do so.

The point that is of interest in this post is what is meant by resident in the statement, "where his presence as a UK resident caused friction between London and Washington" and throughout most of the reports about him in the media?

The problem is that this aspect of the case seems to be glossed over.

So, what does 'UK resident mean'? I take it to mean, 'someone ordinarily resident in the UK'.

"Ordinarily resident ... [is taken to mean] living lawfully in the United Kingdom voluntarily and for settled purposes as part of the regular order of their life for the time being, whether they have an identifiable purpose for their residence here and whether that purpose has a sufficient degree of continuity to be properly described as 'settled'."

The above paragraph, as explained in A, R (on the application of) v West Middlesex University Hospital NHS Trust [2008] EWHC 855 (Admin) originated from Lord Scarman.

"22 It is common ground that the test for ordinary residence is to be found in the speech of Lord Scarman in R v Barnet London Borough Council ex parte Shah [1983] 2 AC 309. The question was whether five students admitted with time-limited leave to enter for the purpose of study qualified for an award from a local education authority for a first degree course. The qualification was three years' ordinary residence in the United Kingdom. All five had been resident in the United Kingdom for the requisite period but none had the right of abode here. The local education authority had refused to make the award on that ground. Lord Scarman began by observing that "ordinary residence" is not a term of art in English law and that the words should be construed in their statutory context as ordinary words in common usage:

"Unless, therefore, it can be shown that the statutory framework or the legal context in which the words are used requires a different meaning, I unhesitatingly subscribe to the view that 'ordinarily resident' refers to a man's abode in a particular place or country which he has adopted voluntarily and for settled purposes as part of the regular order of his life for the time being, whether of short or of long duration.

Now that that is clear, we can move on to questions as to whether or not BM will be deported, and if he isn't deported; whether or not this situation will begin to accrue rights for others.

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