The appellant had applied for leave to remain as a postgraduate doctor. Before her application was determined, the rules changed. She said that her application should have been dealt with under the rules applicable at the time of her application.
Held: The appeal failed. The decision was to be taken under the Rules applying at the time of the decision and not when the application was made. There is a danger of circularity in arguments as to a presumption against retrospective effect. Immigration Rules are not subordinate legislation made under any enactment, but ministerial statements as to the exercise of an executive power. If retrospectivity had applied to these rules, the applicant would in any event have had no vested right to be protected at the time when she made the applications.
Lord Hoffmann said that the correct interpretation of paras 352A and 352D: ‘Like any other question of construction, this depends upon the language of the rule, construed against the relevant background. That involves a consideration of the immigration rules as a whole and the function which they serve in the administration of immigration policy.’
Lord Hope said: ‘The status of the immigration rules is rather unusual. They are not subordinate legislation but detailed statements by a minister of the Crown as to how the Crown proposes to exercise its executive power to control immigration. But they create legal rights: under s.84(1) of the Nationality, Immigration and Asylum Act 2002, one may appeal against an immigration decision on the ground that it is not in accordance with the immigration rules.’
Lord Hope of Craighead, Lord Hoffmann, Lord Scott of Foscote, Lord Brown of Eaton-under-Heywood, Lord Neuberger of Abbotsbury
[2009] UKHL 25, [2009] 1 WLR 1230, [2009] 3 All ER 1061
Bailii, Times
Statement of Changes in Immigration Rules 2006 (HC 1016)
England and Wales
Citing:
Cited – Regina v IAT ex parte Nathwani QBD 1979
The most natural reading of a ministerial statement as to immigration rules is that (in the absence of any statement to the contrary) they will apply to the decisions made until different rules are promulgates, after which decisions will be made . .
Cited – Yew Bon Tew v Kenderaan Bas Mara PC 7-Oct-1982
(Malaysia) In 1972 the appellants were injured by the respondent’s bus. At that time the local limitation period was 12 months. In 1974 the limitation period became three years. The appellants issued a writ in 1975. To succeed they would have to sue . .
Cited – L’Office Cherifien Des Phosphates and Another v Yamashita-Shinnihon Steamship Co Ltd HL 19-Jan-1994
The subject matter of statutes is so varied that generalised maxims are not a reliable guide. An arbitrator can dismiss a claim for inordinate and inexcusable delay, even where this had arisen before the Act which created the power.
Lord . .
Appeal from – Odelola v Secretary of State for the Home Department CA 10-Apr-2008
The claimant applied for leave to remain in the United Kingdom as a postgraduate doctor. The immigration rules which had been laid before Parliament in accordance with section 3(2) of the 1971 Act and which were current at the time of her . .
Cited – HS (Long Residence, Effect of Idi September 2004) Pakistan AIT 1-Dec-2005
AIT The provisions of IDI September 2004 do not set out a published policy providing a concession in the application of the provisions of paragraph 276B(i)(b) of HC395 when assessing a claim based on long . .
Cited – Chief Adjudication Officer and Another v Maguire CA 23-Mar-1999
A claimant who had satisfied the conditions required to become eligible for special hardship allowance but who had yet made no claim, retained his right to the allowance after the Act under which the claim might be brought was repealed. ‘A mere hope . .
Cited – Wilson v Secretary of State for Trade and Industry; Wilson v First County Trust Ltd (No 2) HL 10-Jul-2003
The respondent appealed against a finding that the provision which made a loan agreement completely invalid for lack of compliance with the 1974 Act was itself invalid under the Human Rights Act since it deprived the respondent of its property . .
Cited – Secretary of State for Social Security v Tunnicliffe CA 1991
Staughton LJ explained the presumption against interpretation of a statute to have retrospective effect: ‘the true principle is that Parliament is presumed not to have intended to alter the law applicable to past events and transactions in a manner . .
Cited by:
Cited – Mahad (Previously referred to as AM) (Ethiopia) v Entry Clearance Officer SC 16-Dec-2009
The claimants each sought entry to be with members of their family already settled here. The Court was asked whether the new Immigration Rules imposed a requirement which permitted third party support by someone other than the nominated sponsor.
Cited – ZN (Afghanistan) and Others v Entry Clearance Officer (Karachi) SC 12-May-2010
The Court was asked what rules apply to family members seeking entry to the United Kingdom, where the sponsor was given asylum and then obtained British citizenship. The ECO had said that the ordinary family members rules applied, where the . .
Cited – Secretary of State for The Home Department v Pankina CA 23-Jun-2010
Each claimant had graduated from a tertiary college and wished to stay on in the UK. They challenged the points based system for assessing elgibility introduced in 2008 after they had commenced their studies. The new rules tightened the criteria for . .
Cited – FA (Iraq) v Secretary of State for The Home Department CA 18-Jun-2010
The claimant had applied both for asylum and humanitarian protection. Both claims had been rejected, but he was given leave to stay in the UK for a further year. He now sought to appeal not only against the rejection of the asylum claim but also the . .
Cited – Quila and Another, Regina (on The Application of) v Secretary of State for The Home Department SC 12-Oct-2011
Parties challenged the rule allowing the respondent to deny the right to enter or remain here to non EU citizens marrying a person settled and present here where either party was under the age of 21. The aim of the rule was to deter forced . .
Cited – Munir and Another, Regina (on The Application of) v Secretary of State for The Home Department SC 18-Jul-2012
The claimants were subject to deportation, but had settled here and begun a family. An earlier concession would have allowed him to stay, but it was withdrawn. The court was now asked whether statements by the Secretary of State of her policy as . .
Cited – Alvi, Regina (on The Application of) v Secretary of State for The Home Department Admn 25-Oct-2010
The claimant, a 32 year old Pakistani national, had been refused leave to remain as a Tier 2 (General) Migrant worker. He had worked as a physiotherapy assistant, and said that this should have entitled him to 50 points under the assessment system. . .
Cited – Alvi, Regina (on The Application of) v Secretary of State for The Home Department SC 18-Jul-2012
The claimant had entered as a student, and then stayed under a work permit. New rules were brought in, and because his occupation as a physiotherapy assistant was not listed, he was not credited with sufficient points for a permit. The Court of . .
Cited – New London College Ltd, Regina (on The Application of) v Secretary of State for The Home Department SC 17-Jul-2013
The Court was asked as to: ‘the system for licensing educational institutions to sponsor students from outside the European Economic Area under Tier 4 of the current points-based system of immigration control.’ The appellant’s license to sponsor . .
Cited – Hesham Ali (Iraq) v Secretary of State for The Home Department SC 16-Nov-2016
The appellant, an Iraqi national had arrived in 2000 as a child, and stayed unlawfully after failure of his asylum claim. He was convicted twice of drugs offences. On release he was considered a low risk of re-offending. He had been in a serious . .
Lists of cited by and citing cases may be incomplete.
Immigration, Administrative, Constitutional
Updated: 02 November 2021; Ref: scu.346224