Kumar, R (On the Application Of) v Secretary of State for the Home Department

Immigration rules ordinarily apply to an application according to the date on which the rules state that they take effect, unless the rules provide otherwise. A pending application does not generally create a vested right to have it decided under earlier rules. A prior refusal does not create such a right where the applicant had not satisfied the substantive requirements for leave. Where an earlier rule incorporated salary requirements from external guidance, those requirements could not be severed so as to award points without regard to the specified salary level. The decision-maker was therefore entitled to reconsider the application under the rules in force at the date of reconsideration.

The claimant sought judicial review of the Secretary of State’s refusal on 27 September 2012 of his application for further leave to remain as a Tier 2 (General) Migrant. His application had first been refused on 12 July 2012 because his salary was below the rate stated in the applicable code of practice. That decision was withdrawn after Alvi v Secretary of State for the Home Department [2012] UKSC 33, and the application was refused again after amendments to the immigration rules had moved the relevant salary rates into Appendix J.

The claimant argued that Odelola v Secretary of State for the Home Department [2009] UKHL 25 was no longer good law in light of Alvi and Munir v Secretary of State for the Home Department [2012] UKSC 32, or that the earlier refusal had created a vested right to reconsideration under the old rules. The central issues were whether the amended rules applied and whether the former salary requirement could be disregarded.

1. The claim was dismissed. The Secretary of State was entitled to apply the immigration rules in force on 27 September 2012 when reconsidering the claimant’s application.
2. The court rejected the submission that Odelola v Secretary of State for the Home Department [2009] UKHL 25 was no longer good law. Although Alvi and Munir established that the power to make immigration rules derives from the Immigration Act 1971, the court accepted the analysis in Munir that the essential ratio of Odelola was one of construction: absent a contrary statement, the rules apply when they say they take effect.
3. The descriptions in Odelola of the immigration rules as non-statutory or executive in character were not the premise on which that decision depended. The continuing point was that the rules state the Secretary of State’s policy and may be changed, subject to Parliamentary procedures.
4. The claimant had acquired no vested right. He had not satisfied the salary requirement before the amendment and had not obtained leave. The withdrawal of the first refusal did not improve his position. Alternatively, if the application remained pending, it fell within the principle applied in Odelola.
5. Even assuming a right to reconsideration under the earlier rules, the salary requirement could not be severed. Paragraph 79B of Appendix A required the applicant to obtain points only where the salary met the appropriate rate in the code of practice. Awarding the points regardless of salary would alter the scheme laid before Parliament. The approach in Pankina did not require that result.
6. The subsidiary challenge to the policy guidance added nothing. The claimant did not satisfy the pre-amendment salary requirement, and the original rule could not operate without reference to the external salary specifications. No unfairness or historic injustice had been established.