Ooi & Ors, R (on the application of) v Secretary of State for the Home Department

Immigration Rules may be changed for future applications, including by increasing the qualifying period for indefinite leave to remain or introducing a knowledge requirement. Such changes are not retrospective merely because they adversely affect persons already resident, provided no vested right has accrued before the change.

A work permit condition stating that a person may apply after four years does not create an unequivocal promise that indefinite leave will be granted or that the Rules will remain unchanged. General policy changes affecting large groups attract restrained judicial review. A knowledge requirement for indefinite leave was within the statutory power, did not constitute unlawful race discrimination or breach Convention rights, and did not require exemption through prerogative power.

Five Chinese chefs sought judicial review of changes to the Immigration Rules concerning indefinite leave to remain. The 2006 changes increased the qualifying period for work permit holders from four to five years. The 2007 changes introduced a requirement to demonstrate sufficient knowledge of English and life in the United Kingdom.

The claimants challenged the changes and related decisions as ultra vires, retrospective, inconsistent with legitimate expectations, racially discriminatory, incompatible with Articles 8 and 14 of the Convention and Article 1 of the First Protocol, and unlawful because the Secretary of State had not exercised prerogative power to exempt them.

1. Outcome. The five claims for judicial review were dismissed. The claimants were ordered to pay the defendant’s costs. Permission to appeal was refused.
2. Statutory power and retrospectivity. The Immigration Rules are made under section 3(2) of the Immigration Act 1971. The power includes rules governing indefinite leave to remain. The changes were not retrospective. None of the claimants had acquired a right to indefinite leave before either change, and the new requirements concerned future residence or future applications.
3. Purpose. Social cohesion and the ability of a person permanently settling in the United Kingdom to accommodate himself or herself to life there were legitimate matters for the Secretary of State to consider under section 3(2).
4. Legitimate expectation. A legitimate expectation enforceable by the court requires an explicit or unequivocal statement. The work-permit condition permitted an application after four years but did not promise a grant or immunity from future changes. In any event, the changes were important matters of general policy affecting many people. The court therefore exercised, at most, restrained Wednesbury review and found no abuse of power.
5. Race discrimination. The claimants could not compare themselves with EEA nationals or Turkish citizens because their different treatment was required by European law and the relevant circumstances were materially different. Section 19B of the Race Relations Act 1976 did not apply to the Immigration Rules. The indirect-discrimination claim also failed because each claimant could comply with the knowledge requirement, notwithstanding difficulty or expense.
6. Convention rights and prerogative. The expectation of indefinite leave was not a possession. The changes did not interfere with family life and were in any event lawful and proportionate. The Secretary of State had not been asked to exercise any prerogative power, and declining to create an exemption would not have been irrational or otherwise unlawful.

First-instance judicial review proceedings. No earlier judgment or appeal decision is stated in the judgment. Permission to appeal was refused by the High Court.