Odelola (FC) (Appellant) v Secretary of State for the Home Department (Respondent)

Where a change to the immigration rules contains no transitional provision, it ordinarily applies from its stated commencement date to every application decided thereafter, including a pending application. An applicant acquires no vested right to determination under the rules in force when the application was made.

The immigration rules have legal effect but are executive statements of policy rather than subordinate legislation made under an Act. The Interpretation Act 1978 therefore does not preserve the former rules. The common-law presumption against retrospectivity may apply to non-statutory rules creating legal rights, and fairness remains relevant to construction. Relatively slight unfairness cannot, however, displace clear language and the administrative context indicating immediate application.

Odelola v Secretary of State for the Home Department concerned a Nigerian-qualified doctor who applied in January 2006 for leave to remain as a postgraduate doctor. The rules then in force permitted an overseas medical qualification. Before the application was decided, the Statement of Changes in Immigration Rules 2006 (HC 1016) took effect and restricted eligibility to specified United Kingdom medical qualifications. It contained no transitional provision. The Secretary of State applied the amended rules and refused leave.

The Immigration Judge and the Asylum and Immigration Tribunal dismissed the appellant's appeals. The Court of Appeal dismissed a further appeal in [2008] EWCA Civ 308. The central issue before the House was whether a pending application had to be decided under the rules in force when it was made or those in force when the decision was taken.

Appeal dismissed unanimously.

1. Lord Brown delivered the leading speech, with which Lord Hope and Lord Scott agreed. Immigration rules are statements of administrative policy indicating how the Secretary of State proposes to exercise immigration control. Unless a change provides otherwise, it takes effect on its stated date in relation to all subsequent decisions, including decisions on applications already pending. Lord Hoffmann and Lord Neuberger reached the same conclusion independently.

2. The making of an application did not give the applicant a vested or accrued right to have it determined under the rules then in force. Her legal right was to have the application determined according to the immigration rules properly applicable when the decision was made. The presumption against retrospectivity could not preserve a right which had never arisen.

3. Lord Neuberger held that the immigration rules were not subordinate legislation “made under” an Act. Sections 21, 23 and 16(1)(c) of the Interpretation Act 1978 therefore did not prevent the amended rules from applying. Lord Hoffmann likewise regarded the rules as non-statutory, although they created enforceable legal rights through the immigration appeal provisions. Lord Hope agreed with both speeches.

4. Lord Brown applied the fairness-based approach in L'Office Cherifien des Phosphates v Yamashita-Shinnihon Steamship Co Ltd [1994] 1 AC 486. The rules' executive function, their frequent amendment, the established practice of deciding under current rules and the use of express transitional provisions when desired all supported immediate application. Lord Neuberger added that the common-law presumption could extend to non-statutory rules having legal effect. Although applying the amendment caused some unfairness, the clear language of HC 1016 and paragraph 4 of the 1994 Rules outweighed it.

5. The amended requirement therefore governed the decision and the appellant was ineligible. In significant obiter observations, Lord Brown considered the retention of the £335 application fee conspicuously unfair and said that repayment was the only fair and rational course. Lord Hope and Lord Scott expressly associated themselves with that view. No repayment order formed part of the disposition.

1. House of Lords — Unanimously dismissed the appeal and upheld the application of the rules in force when the Secretary of State made the decision.
2. Court of Appeal — Buxton, Longmore and Richards LJJ dismissed the appeal on 10 April 2008: [2008] EWCA Civ 308.
3. Asylum and Immigration Tribunal — On reconsideration, dismissed the appeal on 5 February 2007 and held that the policy in force when the decision was made applied.
4. Immigration Judge — Dismissed the initial appeal on 12 June 2006.