KG (Sri Lanka) v Secretary of State for the Home Department

A pending appeal against refusal under superseded EEA regulations must be determined under replacement regulations where transitional provisions clearly so provide. The presumption against retrospectivity cannot override clear words. Applying new substantive rules to a pending appeal does not, without more, make regulations unfair or irrational. The distinction between losing a discretionary opportunity and losing an accrued, unqualified substantive right is material. In assessing alleged unfairness, the court may consider whether the claimant had any realistic prospect of success under the former discretionary regime. Delay is relevant only if it materially affects interpretation, legality or outcome. A Court of Appeal is bound by an earlier Court of Appeal decision on the same Directive issue.

The appellant, a Sri Lankan national, sought a residence document as the dependent brother of an EEA national under the Immigration (European Economic Area) Regulations 2000. His application was refused and his appeal remained pending when the Immigration (European Economic Area) Regulations 2006 came into force.

The first tribunal decision held that the appeal fell to be considered under the 2006 Regulations and that the appellant was not an extended family member because he had not lived with his brother in France. On reconsideration, Immigration Judge Bird found no material error of law. The appeal concerned the Directive interpretation and whether the transitional provisions preserved the former discretionary regime or were ultra vires for unfairness and irrationality.

1. Directive issue. The court was bound by the earlier Court of Appeal decision in KG and AK (Sri Lanka) v SSHD [2008] EWCA Civ 13. The appellant’s argument under Article 3(2)(a) of the Directive 2004/38/EC was therefore formally dismissed.
2. Applicable regime. Section 85(4) of the Nationality, Immigration and Asylum Act 2002 permits evidence about matters arising after the original decision, but the focus remains on whether that decision was lawful. The tribunal’s task under section 84(1) was unaffected. Regulation 31(1) and Schedule 3 of the 2006 Regulations revoked the 2000 Regulations, subject to Schedule 4. Paragraph 5 of Schedule 4 clearly required a pending appeal to be treated as an appeal against the corresponding decision under the 2006 Regulations. There was no scope to continue applying the former Regulations and no lacuna.
3. Retrospectivity and vires. The presumption against retrospectivity, reflected in Secretary of State for Social Security v Tunnicliffe [1991] 2 All ER 712 and considered in Plewa v Adjudication Officer [1995] 1 AC 249, yielded to the clear transitional wording. The 2006 Regulations did not remove an accrued right of appeal. They changed the substantive rules governing the pending appeal. That change was not sufficiently unfair or irrational to invalidate the Regulations. Even assuming that the appellant would have engaged the former discretion, he had no realistic prospect of a favourable decision. The standing policy, the purpose of facilitating free movement, his family circumstances, his brother’s support, changed conditions in Sri Lanka and the length of his stay did not materially alter that assessment.
4. Delay could be relevant to retrospective unfairness, but it had no material effect on the interpretation, vires or likely outcome here. Lord Justice Stanley Burnton additionally observed that regulations removing a discretionary opportunity are more difficult to challenge as ultra vires than regulations removing an unqualified substantive right. The appeal was dismissed.

1. Court of Appeal (Civil Division): Appeal dismissed unanimously. The court upheld the reconsideration decision and held that the pending appeal had to proceed under the 2006 Regulations.
2. Asylum and Immigration Tribunal: Immigration Judge Braybrook held on 7 June 2006 that the 2006 Regulations applied and that the appellant did not qualify for a residence card. On reconsideration, Immigration Judge Bird held on 30 March 2007 that there was no material error of law.