TNAG-2205-FCO40-3162-Immigration-policy-changes-to-rules-1990 — Page 121

advise an immigrant who seeks admission only as a visitor, or as a student, for a limited period, of his right to be admitted for

settlement."

The court emphasised that it was for the applicant to satisfy the immigration officer that he qualified for admission as a returning resident and that his claim to be treated as a returning resident must depend upon his state of mind at the time of entry. It is a necessary implication of this that an immigration officer may, if he considers it necessary, make enquiries to establish a passenger's intentions.

However the Tribunal again in Calfos also declined to accept this

construction. The effect of HC 251 is to reinforce the

traditional and longstanding interpretation of the rules relating to returning residents as set out by the High Court in ex. p. Tolba. It will not change current practice on these cases.

A person who returns to the UK for a a limited period, and is accordingly given leave to enter for a limited period, will not

then have a right to readmission as a returning resident if he

subsequently seeks admission with a view to settlement.

He may qualify for admission as a returning resident under paragraph 59 if he has been away for more than 2 years since he last left, but has lived here for most of his life. Alternatively, it is open to him to apply under paragraph 93 of HC 251 for his indefinite leave to be restored, and there is a right of appeal against a decision to refuse such an application.

If a person settled in the UK from returned home on holiday during the course of an extended absence the position would depend on the nature and duration of the absence. If the person seeking admission as a returning resident is indeed settled in the UK (ie ordinarily resident here) and is simply breaking a relatively short absence overseas to return briefly to this country the immigration officer will normally grant indefinite leave under paragraph 58 of HC 251, on the basis that he has remained ordinarily resident in the UK throughout. If the facts could not readily be ascertained at the port, and the officer therefore granted limited leave in the first instance, the applicant could subsequently apply for indefinite leave under