TNAG-2205-FCO40-3162-Immigration-policy-changes-to-rules-1990 — Page 120

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 they are 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

short duration. The Rules relating to returning residents, as

the phrase 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 intended to entitle people resident

overseas to maintain settled status in the UK by paying short visits to this country once every two years.

This issue was considered at some length by the High Court in

exp. Tolba in 1987, which is the leading judicial authority on

the rules relating to returning residents. The judge said

"paragraph 56 of HC 169 provides that ' on satisfying the

immigration officer that he had indefinite leave to enter or to

remain in the United Kingdom when he left and that he has not

been away for longer than 2 years' the immigrant 'is to be

admitted for settlement'. It seems to me that the words of this

rule must not be too strictly construed. For political or other

reasons a returning immigrant may not wish to be admitted for

settlement. He may only wish to be admitted as a visitor, or as

a student, for a limited period, and it would, in my judgment be

wrong so to interpret paragraph 56 as to require the immigration

officer to admit the immigrant for settlement. So the effect of

paragraph 56 is to require the immigration officer to admit the

immigrant for settlement if that is what he seeks, and in my

judgment there is no obligation on an immigration officer to

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