VALMONT v. THE UNITED KINGDOM
Inadmissible
Nicolas Bratza
The first applicant, Michel Valmont, born in 20 March 1951, is a Seychelloise citizen, currently residing in the Seychelles. The second applicant is his wife, Shirley Valmont, who was born on 30 July 1936 and is a British citizen resident in Cardigan, Wales. The applicants are represented before the Court by Mr Barry J. Gawthorpe, a solicitor practising in Cardigan. The facts of the case, as submitted by the parties, may be summarised as follows. A.  The first applicant arrived in the United Kingdom on 14 March 1976. When he arrived, he had the status of a citizen of the United Kingdom and the Colonies (CUKC) by virtue of section 14 of the British Nationality Act 1948, because the Seychelles was a British colony at the time of his birth. He was given leave to enter as a work permit holder for a period of 12 months. When the Seychelles became independent on 29 June 1976, he lost his CUKC status and became a citizen of the Seychelles only. However, since the Seychelles remained in the Commonwealth, he continued to hold the status of Commonwealth citizen, which status he retains.  The first applicant met the second applicant, who is British, in 1976. They started to live together as man and wife and on 27 August 1977 their twin children, Roseanne and Michel, were born. On 27 April 1978 the couple married, and on 15 June 1979 the first applicant was granted indefinite leave to remain in the United Kingdom.  On 5 December 1986, the first applicant returned to the Seychelles to attend to family affairs due to his father’s illness. On 2 March 1987 he returned to the United Kingdom and on 12 April 1987 he left for the Seychelles again. On 19 March 1988 he returned to the United Kingdom and on 17 July 1988 went back to the Seychelles. The first applicant then suffered a series of health and employment problems and found it difficult to save enough money for his flight back to the United Kingdom. He and his wife did, however, keep in contact, and he also kept in contact with his children. The first applicant’s father died in 1993. On 27 July 1996, the first applicant arrived in the United Kingdom. The second applicant had come to meet him at the airport. The first applicant told the immigration officer who interviewed him that he sought admission as a visitor for three months and that he intended to take employment on a farm owned by a friend. In addition, he told the immigration officer that he had a girlfriend in the Seychelles and to the customs officer he referred to that person as his “wife”. The immigration officer refused him leave to enter as a visitor because he was not satisfied that the first applicant intended to stay for the stated period since he had been unemployed in the Seychelles and he intended to work in the United Kingdom. Although the first applicant did not seek entry as a returning resident at the time, the immigration officer and the chief immigration officer who authorised the decision to refuse leave to enter considered his application on that basis and concluded that he did not qualify as a returning resident since he had not been resident in the United Kingdom within the last two years. Moreover, according to the Home Office there was no evidence that there had been any intervening devotion between the applicant and his family in the United Kingdom. Arrangements were made for his removal on 24 August 1996. The first applicant applied to the High Court for leave to apply for judicial review of the decision to refuse leave to enter. In the application the point was raised that he should be considered as someone having the right of abode in the United Kingdom under the Immigration Act 1971 (“the 1971 Act”). However, it was pointed out that under section 2(2) of the 1971 Act, as amended by the British Nationality Act 1981 (“the 1981 Act”), only a female Commonwealth citizen who was married to a British citizen would have the right of abode and that a male commonwealth citizen who was married to a British citizen did not. In addition, it was said that given that the case involved issues arising under Article 8 of the European Convention in conjunction with Article 14, the Secretary of State should have exercised his discretion in favour of protecting the relevant Convention rights. On 28 August 1996 the court refused leave to apply for judicial review on the grounds that the Secretary of State had exercised his discretion properly. The first applicant made a renewed application for leave to apply for judicial review to the Court of Appeal, raising the same points. On 4 September 1996 the Court of Appeal refused leave on the grounds that the facts of the case were not such as to suggest that the discretion should have been exercised in favour of the applicant and that the Secretary of State had acted lawfully since he had considered all material factors before him and had exercised his discretion reasonably. In connection with the argument that the Secretary of State had failed properly to exercise his discretion as he had not taken full account of Convention considerations, the Court of Appeal referred to the case of ex parte Brind ([1991] 1 AC 696) and a line of subsequent decisions, including R. v. Ministry of Defence ex parte Smith ([1996] QB 517). The first applicant was deported to the Seychelles on 7 September 1996.  B. Relevant domestic law Between 1976 and at least 1980, section 2 of the Immigration Act 1971 was applicable. This section stated (as relevant): “(1) A person is under this Act to have the right of abode in the United Kingdom if – [four categories, (a) – (b), none of which applied to the applicant] (2) A woman is under this Act also to have the right of abode in the United Kingdom if she is a Commonwealth citizen and either – (a) is the wife of any such citizen of the United Kingdom and Colonies as is mentioned in subsection (1)(a), (b) or (c) above or any such Commonwealth citizen as is mentioned in subsection (1)(d); or (b) has at any time been the wife – (i) of a person then being such a citizen of the United Kingdom and Colonies or Commonwealth citizen; ... .” On 1 January 1983, the British Nationality Act 1981 (“the 1981 Act”) came into force. The 1981 Act replaced the concept of “citizenship of the United Kingdom and Colonies” with various categories of citizenship, including “British citizenship”. It also prospectively removed the distinction between men and women which had been contained in the old section 2(2) of the 1971 Act, whilst, however, retaining the right of abode for those who had obtained it under any provision in the old section 2, including subsection 2(2), which applied only to women. The new section 2, which is still in force, provides, so far as is material: “(1) A person is under this Act to have the right of abode in the United Kingdom if – (a) he is a British citizen; or (b) he is a Commonwealth citizen who – (i) immediately before the commencement of the British Nationality Act 1981 was a Commonwealth citizen having the right of abode in the United Kingdom by virtue of section 2(1)(d) or section 2(2) of this Act as then in force; and (ii) has not ceased to be a Commonwealth citizen in the meanwhile.” A person who does not have the right of abode requires leave to enter the United Kingdom. At all material times, a person who, like the first applicant, had been granted indefinite leave to remain and had then left the United Kingdom could be permitted to return as a “returning resident” provided he was not absent from the United Kingdom for a period of over two continuous years (Statement of Changes in Immigration Rules, HC 395, paragraphs 15 and 18-20).