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(c) if he was then seeking to settle in this country (ie to become "ordinary resident" in this country).
In both cases (a) and (b) are facts but, in the second, (c) is additional and refers to a present intention.
3. A current text on this subject, Macdonald's Immigration Law and Practice, appears to favour the former construction. On page 264 the author says that the Rule "give an absolute right of return if the person has been away for less than 2 years", and on the next page he states:
4.
"Now [1987] the only requirement is that a returning resident should have had indefinite leave to enter or remain prior to departure. Questions or ordinary residence are no longer to
be considered."
This implies that immigration practice (as distinct from principle) followed the first alternative. I wonder if that was so, because if it was then the change in the wording from 1 May would have had two effects:
i) it clearly cured the ambiguity by coming down in favour of the second alternative, but also -
ii) it would now provide, in practice, a further (if revived) obligation to satisfy an immigration officer on each time of entry that the person concerned intend to settle.
In other words, if the passage quoted from MacDonald's book accurately represents the pre-May practice, then the new rule heralds a new and potentially more stringent practice.
5.
It may be that in practice the intention to settle was only questioned when an immigration officer had doubts abut a returning resident, and where necessary, a subsequent tribunal would endorse the principle. But if the majority were not questioned on this point it would tend to confirm MacDonald's interpretation with the implied consequences as set out above. This quite clearly has no effect on the existing principle, nor, following the Home Secretary's assurance on instructions to Immigration officers, should it have on future practice (though doubts have been raised by the Au Yeung case). But the existence of this argument whether soundly based or not, complicates our
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