mmigration and Nationality Department
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ind
14 May 1990
Ian Macdonald QC
President
Immigration Law Practitioners' Association
115 Old Street
London
EC1V 9JR
Dear In Macdonald
Ли
Thank you for your letter of 25 April. I have also seen your letter in The Independent on 4 May.
The changes in the rules relating to returning residents made in HC 251 are intended to reinforce the long standing operation of this provision and not to affect the position of persons ordinarily resident in this country who wish to resume their residence here after a temporary absence overseas. The criticisms which have been made appear to reflect a general misunderstanding of the present position.
Under paragraph 58 of HC 388 (the previous Immigration Rules) a returning resident was to be admitted for settlement on satisfying the immigration officer that he had indefinite leave to remain when he left and that he had not been away for longer than 2 years.
The intention and our consistent interpretation of this provision was that "when he
that "when he left" meant "when he last left": it was never envisaged that a person could claim to be a returning resident on the basis that at some time in the past he had indefinite leave to remain if that status had subsequently been superseded by one or more grants of limited leave. This construction was expressly upheld by the Immigration Appeal Tribunal in Akinrujomu, and by implication by the High Court in ex parte Tolba. A differently constituted Tribunal declined to follow these authorities in Calfos. The first of the two amendments to paragraph 58 made in HC 251 is intended simply to put the matter beyond doubt, and to resolve the uncertainty created by the conflicting Tribunal determinations.
The second amendment to paragraph 58 makes explicit the requirement that a person can only qualify for admission as a returning resident if he is indeed seeking admission for the purpose of 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 is not intending 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 ordinarily resident here, apart from temporary or occasional absences of