Aide-memoire on Rule 58 of the UK Immigration Rules
Change to Rule 58 of the UK Immigration Rules
The previous UK immigration Rule 58 provides that a returning resident is to be admitted for settlement if he had indefinite leave to enter or remain in the UK when he left and he has not been away for longer than two years. Returning residents include various categories of persons having had varying length of residence in the UK, e.g. 10 years for students and 4 years for people working or investing in the UK.
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The amended Rule 58 laid before Parliament on 23 March sought to clarify the interpretation of the provision for returning residents to be admitted for settlement within two years of their departure. (The old and new Rules 58 60 are at Annex I). The new rule makes it clear that a passenger must have had indefinite leave to enter or remain in the UK when he last left, in addition, it puts the onus on the passenger to claim admission as a returning resident so that a passenger who does not intend to settle will not quality as a returning resident.
The implication of the amendment to Rule 58 for Hong Kong is that a person who has acquired indefinite leave to enter or remain in the UK and who seeks to enter as a returning resident will have to satisfy the Immigration Officer on arrival that he seeks admission for settlement, otherwise he may be landed as a visitor.
A Labour Front Bench motion debate to disallow the change to Rule 58 was held on 15 May 1990 but was defeated by 176:137 votes. During that debate, Mr. Waddington, the Home Secretary made the assurance that the change was intended to clarify authority under the rule which had been made ambiguous by an erroneous Immigration Appeals Tribunal decision, that the change was not targetted at Hong Kong, and that specific instruction would be given to immigration officers emphasising that there would not be any change in existing practice. (Extracts from Mr. Waddington's speech is at Annex II).
Despite these assurances, the Special Working Group is concerned that immigration officers at the port of entry will probably be inclined to enforce the Rule as it is written and not take into account assurances given in the House of Commons. Instead of simply a clarification of the existing rule, Members considered it a change of substance.
OMELCO has already received representations on the matter by individuals who believe they may be affected by the Rule. Members have also learnt of concerns from personal contacts who may be affected. Although the UK has stressed that the change to Rule 58 has no connection with the nationality package, there appears to be a contradiction in spirit between the two, since the Rule may encourage people to leave Hong Kong and return to the UK in order to safeguard their permanent residence status.