DRAFT LETTER FOR MR LLOYD'S SIGNATURE TO MR ARCULLI
When we met on 3 October you raised the recent changes in the
Immigration Rules
Rules relating to returning residents and, in
particular, the case of Mr Au Yeung.
I should like to emphasise that the small changes to the rules
on returning residents made earlier this year merely restate the
long established meaning of the provisions. The changes do not
affect the position of people ordinarily resident here who wish
to resume their residence after a temporary absence. The criticisms which have been made by some immigration practitioners and pressure groups appear to reflect a general misunderstanding
of the arrangements.
The main amendment to paragraph 58 of the Rules makes explicit the requirement that a person can only qualify for admission as
a returning resident if he is seeking admission for settlement.
There is nothing new about this. Paragraph 58 provides for people "to be admitted for settlement" and a person cannot be admitted for settlement under this or any other provision of the
Rules if he does not intend to settle. "Settled" is defined by
the Immigration Act 1971 in terms of ordinary residence; and this in turn has been interpreted by the courts to mean that the person must be habitually and normally resident here, apart from temporary or occasional absences of short duration.
The Rules relating to returning residents, as the name itself implies, are intended to allow persons resident in this country to resume their residence after an absence of up to two years: they are not and have never been intended to entitle people resident overseas to maintain settled status in the UK by paying short visits to this country once every two years. The whole issue was considered at some length by the High Court in ex. parte Tolba in 1987, which is the leading judicial authority on
the rules relating to returning residents, and which confirmed
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