Odelola v Secretary of State for the Home Department

Immigration Rules made under section 3(2) of the Immigration Act 1971 are statements of executive policy, not delegated or subordinate legislation to which the Interpretation Act 1978 applies. Unless transitional provisions provide otherwise, an immigration application must therefore be determined under the Rules in force when the decision is made.

An applicant acquires no vested right, merely by applying, to determination under the Rules then in force. The common law presumption against retrospectivity does not preserve such a claim because a change of executive policy does not deprive the applicant of a vested right.

The appellant, a Nigerian doctor without a recognised UK medical degree, applied in January 2006 for further leave as a postgraduate doctor. The Immigration Rules then permitted her application, subject to other requirements. Before the Secretary of State decided it, Statement of Changes HC 1016 took effect and introduced a UK-degree requirement which she could not satisfy.

The Secretary of State refused the application under the Rules in force on the decision date. An Immigration Judge, following HS [2005] UKAIT 00169, upheld that approach, and the Asylum and Immigration Tribunal reconsidered the matter. The central issue on the appeal from the Tribunal was whether the appellant had acquired a right to determination under the Rules in force when she applied, either through the Interpretation Act 1978 or the common law presumption against retrospectivity.

1. Appeal dismissed. The Immigration Rules made under section 3(2) of the Immigration Act 1971 are not delegated or subordinate legislation, or statutory rules, to which the Interpretation Act 1978 applies. Buxton LJ relied on the Rules’ statutory origin, constitutional function and consistent judicial treatment. They state the Secretary of State’s practice for administering the statutory power to control entry and stay. Parliament may disapprove them and require restatement, but does not formulate or amend their terms.

2. The Rules nevertheless have legal force. The Secretary of State must act consistently with the policy currently declared in them, and an immigration tribunal must apply the Rules applicable to the case. That public law constraint does not convert the Rules into delegated legislation or prevent the Secretary of State from changing the policy. An applicant who seeks protection from a change must establish an available public law ground, such as legitimate expectation; no such case was advanced here.

3. Section 16(1)(c) of the Interpretation Act 1978 did not preserve the former Rules. Sections 21 and 23 could extend the Act’s provisions to subordinate legislation, but the Immigration Rules did not fall within that category. In any event, the appellant’s argument assumed the very right it needed to prove. Nothing in the Rules gave an applicant a vested right to determination under the version operating on the application date.

4. Longmore LJ additionally held that the new Rules took effect on their stated commencement date. Transitional provisions could have been included, as Rule 4 of HC 395 demonstrated, but were not. The appellant’s right was only to have her application considered according to the Rules on their proper construction. The common law presumption against retrospectivity did not apply because no vested right was impaired.

5. Richards LJ agreed with both judgments. The Secretary of State was therefore entitled to decide the application under HC 1016, which was in force on the decision date.

1. Court of Appeal (Civil Division): By [2008] EWCA Civ 308, unanimously dismissed the appeal and upheld the use of the Immigration Rules in force when the Secretary of State decided the application.

2. Asylum and Immigration Tribunal: Reconsidered the determination under reference HR/00295/2006, from which the appeal was brought.

3. Immigration Judge: Following HS [2005] UKAIT 00169, held that the Secretary of State had correctly applied the Rules in force on the decision date.