Odelola v Secretary of State for the Home Department

The House of Lords held that amendments to the Immigration Rules take effect on the date stated and, in the absence of express transitional provisions, apply to applications still pending when the amendments come into force. The rules are executive statements of policy about how the Secretary of State will exercise immigration powers; they are not made under a statutory power in the sense required to attract the Interpretation Act 1978 presumption protecting accrued rights. The common law presumption against retrospectivity may be a relevant factor in interpreting rules which create legal rights, but no vested right had accrued to the appellant when the 2006 changes took effect. Accordingly the decision to apply the 2006 Statement of Changes (HC1016) to applications pending on 3 April 2006 was upheld. The Lords expressed regret that the fee paid by the applicant was irrecoverable in the absence of a rule permitting repayment, but declined to allow the appeal.

The appellant, a Nigerian medical doctor, applied on 17 January 2006 for leave to remain in the United Kingdom as a postgraduate doctor under the Immigration Rules as in force at that date. She paid the prescribed fee. The Secretary of State laid the Statement of Changes in Immigration Rules 2006 (HC1016) on 30 March 2006, to take effect on 3 April 2006, which restricted entitlement to postgraduate doctor leave to those with recognised UK medical degrees. The appellant's application had not been determined by the date the new rules took effect and was refused on 26 April 2006. She appealed through the immigration tribunal, lost on reconsideration, lost in the Court of Appeal ([2008] EWCA Civ 308), and obtained leave to appeal to the House of Lords.

The legal questions for the House of Lords were (i) whether the 2006 Statement applied to applications pending when it came into force or only to applications made after that date, and (ii) whether any presumption (statutory under the Interpretation Act 1978 or at common law) against retrospective effect protected the appellant's position. The appellant argued that her application gave rise to a right to be determined under the rules in force when she applied and invoked section 16(1)(c) of the Interpretation Act 1978 and the common law presumption against retrospectivity.

The House of Lords analysed the nature and function of the Immigration Rules, their statutory context under the Immigration Act 1971 and the Nationality, Immigration and Asylum Act 2002, and relevant authorities. The Lords concluded that the rules are executive statements of immigration policy which are intended to indicate how the Secretary of State will exercise discretion at the time of decision. Section 16(1)(c) of the Interpretation Act did not apply because the rules are not 'subordinate legislation made under an Act' in the sense required by that Act. The common law presumption against retrospectivity can be a factor when interpreting rules that create legal rights, but it protects vested or accrued rights; here no vested right to have the application determined under the earlier rules had come into existence. Read as a whole (including para 4 of the 1994 Rules showing when transitional provision is explicitly stated), the 2006 Statement naturally extended to pending applications. The Lords recognised the unfairness to applicants who paid fees which became fruitless but dismissed the appeal.

Nature of relief sought: the appellant sought to have her application treated under the Immigration Rules in force on the date of application and, implicitly, to overturn the refusal of leave to remain.

Issues framed by the court: (i) the proper construction of the 2006 Statement of Changes in Immigration Rules (HC1016) as to its temporal application to pending applications; (ii) whether statutory or common law presumptions against retrospectivity required that the earlier rules apply to pending applications; (iii) whether any equitable remedy (including repayment of the fee) arose.

Reasoning in brief: the Lords treated the rules as executive policy statements with legal effect when applied, found that the Interpretation Act presumption did not assist, accepted that the common law presumption against retrospectivity is a relevant interpretive factor but requires an accrued or vested right, and concluded that no such right existed here. The natural reading of HC1016 read with para 4 of the 1994 Rules showed the amendments applied to all decisions made on or after 3 April 2006. Although fairness pointed towards returning fees in some cases, the court dismissed the appeal on the legal construction point.

Appeal dismissed. The House of Lords held that, absent express transitional provisions, amendments in the Statement of Changes in Immigration Rules (HC1016) took effect on the stated date and applied to all decisions made on or after that date, including applications pending when the changes came into force. The Interpretation Act 1978 did not compel a different result because the Immigration Rules are executive policy statements not 'subordinate legislation' in the relevant sense; the common law presumption against retrospectivity is an interpretive factor but protects vested rights and no vested right had accrued to the appellant at the time of amendment. The Lords noted the unfairness of retaining fees paid by applicants who subsequently became ineligible but declined to allow the appeal.

Appeal from the Asylum and Immigration Tribunal (appeal dismissed on reconsideration, HR/00295/2006), then the Court of Appeal ([2008] EWCA Civ 308) which dismissed the appellant's challenge, and thence to the House of Lords (this decision: [2009] UKHL 25).