TNAG-2205-FCO40-3162-Immigration-policy-changes-to-rules-1990 — Page 114

Immigration and Nationality Department

Lunar House 40 Wellesley Road

Croydon CR9 2BY

Telephone 01-760

081 760 1228

(GTN 3882)

John Hague Esq

Hong Kong Department

Foreign & Commonwealth Office

WHITEHALL

Dear John,

HOME OFFICE

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Your reference

Our reference

Date

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Fax No 081 760 1197

August 1, 1990

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RECEIVED IN REGISTRY

02 AUG 1990

DESK OFFICER

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PARAGRAPH 58 OF THE IMMIGRATION RULES

John Morris asked me to write with our thoughts on the points raised in his letter of 27 July.

I think it probably simplest to send you the enclosed briefing and letter which I hope gives a full and clear account of our intentions, the law and the practice on returning residents. I am not sure that there is much we can add to that. The key points are perhaps that we agree that the previous drafting was ambiguous, that was why we made the changes. Our view of what the Rule means has not however changed; this view has been confirmed by the Court and the new Rule simply states the provision more clearly.

It is also relevant to point out that MacDonald's Immigration Law is written by Ian MacDonald of the Immigration Law Practitioners Association who so successfully stirred up the furore in Hong Kong about the Rules Change and who also acted for Tolba in the court case which considered the meaning of the returning residents provision and rejected Tolba's arguments in favour of ours. We have noticed before that Mr MacDonald does not always draw a clear distinction between what he would like the law to mean and what such authorities as the courts have decided it means.

I should mention that I have passed the details of Mr Au Yeung's case to the Immigration Service to see if they have any record of what happened. It is possible that they will not be able to trace the case (most entries are not recorded in any detail) and even if we can obtain a report it may well not throw much further light on the matter. In the papers Mr Au Yeung himself sent in he explains that he has not lived in the UK since 1980 but has made short visits here once every two years. As we have made clear throughout, the returning residents rule has never been intended to allow people to perpetuate settled status in this way when, as in Mr Au Yeung's case, they are very clearly resident elsewhere. Undoubtedly because we deliberately do not take a particularly rigorous approach in cases where readmission is sought as a returning resident within two years of having settled status people will often succeed in being admitted as returning residents

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