LSH
Heard at: Field House			
On 17 February 2005		HY and FY (Returning resident- Meaning of ILR) Iran [2005] UKIAT 00055	

IMMIGRATION APPEAL TRIBUNAL
	
Corrected transcript of decision given at hearing 
Signed:           18.02.2005
Issued:            25.02.2005                              	

	Before:		

Mr J G Freeman (vice-president)
Mr T S Culver
Mrs R M Bray, JP
	
Between	
	
Entry Clearance Officer, TEHERAN 	
	
		appellant	
			
	and		

		claimants 	

Representation:

For the entry clearance officer:	Miss A Gill
For the claimants:			Mr P Warburton, IAS (London)
		
DETERMINATION AND REASONS

This is a Home Office appeal against the decision of an adjudicator, Mr D M Wynn-Simpson, sitting at Cardiff on 25 June 2004, allowing the appeals of two citizens of Iran, husband and wife, against refusal of visas as returning residents. The grounds of appeal relate to the interaction of paragraphs 18 and 19 of the rules.  As the grounds point out, the discretionary exception in paragraph 19:

A person who does not benefit from the preceding paragraph by reason only of having been away from the United Kingdom too long, may nevertheless be admitted as a returning resident if for example, he has lived here for most of his life.

 relates only to the requirement at paragraph 18(2) that the person "has not been away from the United Kingdom for more than two years". It does not relate as has often been pointed out by the Tribunal to the requirement that that person should have "had indefinite leave to enter or remain in the United Kingdom when he last left".   

2.	The immigration history in this case, so far as relevant, is as follows.  The husband arrived in 1978, and on 1 July 1988 a letter was issued to him by the Home Office, granting him indefinite leave to remain  in the following terms.

… there are no longer restrictions on the period in which you remained in the United Kingdom.  Your passport which is enclosed has been stamped to show this.    You can now remain indefinitely in the United Kingdom. …  As a visa national, you still need a visa every time you enter the United Kingdom and you may be refused entry if you do not have one.   You may get a re-entry visa at any British Passport in the United Kingdom or at a British Embassy High Commission or Consulate abroad.  [There is then a reference to the requirements of paragraph 18(2) of the rules:]  If you leave the United Kingdom you will normally be re-admitted at any time within 2 years of your departure.

That letter was still in force, in the sense that it had not been cancelled or withdrawn, at the time that the husband and wife left this country on 16 May 1993. It is not clear that there was any such grant to the wife; but all concerned have worked on the assumption that her status followed his.

3.	This appeal turns on the claimants’ subsequent visit to this country between July 2000 and July 2003.   That visit was undertaken with limited leave only: the reasons for that are discussed in the explanatory statement, on the second page: unfortunately, the paragraphs are not numbered.   However, those reasons can only be relevant to the exercise of discretion under paragraph 19, and not to the question of whether there is an absolute bar to their re-admission as returning residents under paragraph 18(1).   

4.	The evidence from that passport page produced shows that the husband at least was re-admitted on 29 July 2000, with 6 months’ leave, apparently as a visitor.   The wife had certainly no better leave than he did; and the original grant of indefinite leave was addressed to him only.    They both left in July 2003 and the positions of the two sides are as follows.  Mr Warburton says that nothing had happened to bring the grant of indefinite leave (at least to the husband, made on 1 July 1988) to an end.  It follows that, although he was re-admitted in 2000, as a visitor only according to the stamp on his passport, in law the position was that his indefinite leave continued; and, on the occasion of his departure in July 2003, he must be regarded as a person still with indefinite leave.  

5.	Miss Gill on the other hand points to the terms of the letter of 1 July 1998, to which we have already referred, and to the actual basis on which both husband and wife were re-admitted in 2000-2003.  This appeal turns solely on the question of law as to which of them is right about the true construction of paragraph 18(1) of the Rules, as applied to the claimant's last visit to this country.   

6.	There is a superficial attraction in Mr Warburton's argument, on the basis that indefinite leave, “without restrictions” as the letter put it, means exactly what it says, and continues until it is brought to an end.   However, clearly paragraphs 18 and 19 of the rules have to be read together; and decision-makers are directed to consider the position under paragraph 18(1) as it was when the claimant last left this country.  If Mr Warburton is correct, then the reference to "when he last left" is completely superfluous. Clearly the immigration rules do not fall to be construed as precisely as a statute; but still we ought to make sense of them if we can.  

7.	What is clear is that a person who gets indefinite leave in the terms that the husband did in this case does so on the basis that he can remain in this country for as long as he wants, with no restrictions at all.  (There are means of bringing such grants of leave to an end; but we are not concerned with them in this case.) However, the grant of indefinite leave is clarified further on in the letter, with reference to what may happen if the claimant leaves this country.   He is clearly given notice, in the paragraph we have read out, that he will “normally be be re-admitted at any time within two years of his departure”.   That as we have said accurately reproduces the provisions of paragraph 18 of the Rules.   

8.	What then is the position of someone who does not seek re-admission within two years of his departure?  Plainly he has to rely on the discretionary provisions of paragraph 19.   In our view it cannot then be said that the leave which he once had is still to be described as indefinite.  It is subject to the clear restriction imposed by paragraph 19, if to nothing else. (We shall have to leave for another occasion the question as to what might happen if somebody, within two years of his departure with indefinite leave, made an intermediate visit to this country with only limited leave; but we do not at present see why anyone should do that, at least if returning for settlement).

9.	Our view is that a person who at one point had indefinite leave to remain in this country, but did not seek re-admission within two years of last being here on that basis, could no longer be said to be a person with indefinite leave to remain when he revisited the country on some other basis.   That is this case, so far as the husband is concerned, and a fortiori in the case of the wife. It follows that the claimants were not persons who had indefinite leave to enter or remain in this country when they last left it in July 2003.  The adjudicator was not entitled to consider the case under the discretionary provisions of paragraph 19, and the Home Office appeal must be allowed.
 
John Freeman
(approved for electronic distribution)