Times Law Report 22 May 2009
House of Lords – Published May 22, 2009. Odelola v Secretary of State for the Home Department Before Lord Hope of Craighead, Lord Hoffmann, Lord Scott of Foscote, Lord Brown of Eaton-under-Heywood and Lord Neuberger of Abbotsbury Speeches May 20, 2009
An application for leave to enter or remain in the United Kingdom was to be decided according to the immigration rules in force when the decision was taken whether or not to grant leave, rather than the version of the rules which had been in force when the application was originally made, unless the rules specified otherwise.
The House of Lords so held in dismissing an appeal by the appellant, Dr Modupe Abiola Odelola, against the dismissal by the Court of Appeal (Lord Justice Buxton, Lord Justice Longmore and Lord Justice Richards) (sub nom MO (Nigeria) v Secretary of State for the Home Department) The Times June 2, 2008;  1 WLR 126) of her appeal against the dismissal by the Asylum and Immigration Tribunal (Deputy President Ockelton, Senior Immigration Judge Freeman and Senior Immigration Judge Perkins), on February 5, 2007, of her appeal against the dismissal by Immigration Judge Campbell, on June 9, 2006, of her appeal against a refusal by the Secretary of State for the Home Department to vary her leave to remain in the United Kingdom.
Mr Richard Drabble, QC and Mr Tim Buley for Dr Odelola; Ms Elisabeth Laing, QC and Mr Sam Grodzinski for the Home Secretary.
LORD BROWN said that the Immigration Act 1971 recognised that it was for the secretary of state to decide and lay down rules as to the practice to be followed in controlling immigration, rules which might be changed whenever the secretary of state thought necessary, and it provided for those rules and any changes in them to be laid before Parliament.
Changes in the rules were always stated to take effect from a given date. Sometimes they would contain transitional provisions, sometimes not. The present appeal arose from a rule change which contained no transitional provisions.
The narrow but important issue it raised was whether, in such a case, an application for leave to enter or remain was to be decided according to the version of the rules in force at the date of decision or according to whatever earlier version was in force at the time when the leave application was made.
The importance of the issue was obvious: rule changes were frequently made and generally there would be a large number of outstanding applications pending.
But the narrowness of the issue also needed to be stressed. It was not the appellant’s case that rule changes could not apply to pending applications, only that if they were to do so, the rules themselves had to expressly so specify; if the rules were silent as to that, submitted the appellant, the default position was that applications had to be decided according to the rules in force when they were made.
The facts of the case could be shortly stated. The appellant was a citizen of Nigeria. She was a medical doctor, having graduated with distinction from the University of Ibadan in July 1988.
On September 5, 2005, she came to the UK as a visitor for a two-month clinical attachment. She intended to apply, when she had completed the necessary clinical attachments, for a variation of her leave so as to obtain leave to remain as a postgraduate doctor.
The rules then in force, Statement of Changes in Immigration Rules (HC 299) which came into force on July 19, 2005, provided that a person with an overseas medical degree would, subject to certain other requirements including registration with the General Medical Council, be eligible for such leave.
On January 17, 2006, she made her application for leave to remain as a postgraduate doctor. She completed the prescribed form and enclosed the prescribed fee, in her case, £335.
On March 30, 2006, the secretary of state laid before Parliament Statement of Changes in Immigration Rules (HC 1016) which was stated to take effect on April 3, 2006. HC 1016 contained no transitional provisions.
One of the changes made was that a person was to be eligible for leave to remain as a postgraduate doctor only if she had obtained a recognised UK degree in medicine. Since the appellant’s medical degree had been -obtained in Nigeria, she could not satisfy the amended version of the rules and so, by the secretary of state’s decision of April 26, 2006, was refused leave to remain.
It was important to recognise first and foremost that, so far from asking here what Parliament intended, the question was what the secretary of state intended. The rules were her rules and, although she had to lay them before Parliament, if Parliament disapproved of them they were not thereby abrogated: the secretary of state merely had to devise such fresh rules as appeared to her to be required in the circumstances.
Second, the immigration rules were essentially executive, not legislative; they were essentially statements of policy. Policy statements changed as policy changed. That was the core consideration in the case.
That, and the fact that, save in those few specific cases, such as Statement of Changes in Immigration Rules (HC 395) in 1994, when express transitional provisions had been included in the rule changes, decisions invariably had been taken according to the up-to-date rules.
The immigration rules were statements of administrative policy: an indication of how at any particular time the secretary of state would exercise her discretion with regard to the grant of leave to enter or remain.
The appellant submitted that the analogy to be drawn was with social security law and in that regard sought to pray in aid the Court of Appeal’s decision in Chief Adjudication Officer v Maguire (The Times March 29, 1999;  1 WLR 1778).
The claimant there was seeking special hardship allowance, a benefit payable to those suffering, as he was, a prescribed disease. Before he made his claim, but still within the period during which he was permitted to make it, the statute providing the benefit was repealed. The court held that the claimant was none the less entitled to the benefit.
So far from assisting the appellant’s argument, Maguire seemed to point up the critical distinction between, on the one hand, legislation conferring money or other certain benefit and, on the other hand, a mere statement of policy as to how presently it was proposed to exercise an administrative discretion when eventually it came to be exercised, a policy which might change at any moment.
In Maguire, the right vested even before the necessary claim had been advanced; in the latter case no right accrued even after the application had been made. Indeed the argument based on Maguire surely proved too much: if the situations were truly analogous, the appellant here would not have needed even to apply for leave to remain.
The truer analogy was with planning law and practice which required that all applications were determined in accordance with whatever policies were in force at the time the decisions were taken.
Standing back, therefore, from the detail and addressing, as Lord Mustill proposed in l’Office Cherifien des Phosphates v Yamashita-Shinnihon Steamship Co Ltd (The Times December 17, 1993;  1 AC 486, 525H), a single indivisible question, to be answered largely as a matter of impression, there was no doubt that the changes in the immigration rules, unless they specified to the contrary, took effect whenever they said they took effect with regard to all leave applications, those pending no less than those yet to be made.
That said, one particular feature of the scheme struck their Lordships as conspicuously unfair: the irrecoverability of the substantial charge made upon an application for leave which, as here, became doomed to fail by virtue of a subsequent change in the rules.
There could surely be no doubt that the Home Secretary had power in those circumstances to return the charge. That, indeed, would seem the only fair and rational course open to her. So far as the appeal itself was concerned, however, it could not succeed and had to be dismissed.
Lord Hope, Lord Hoffmann, Lord Scott and Lord Neuberger delivered concurring opinions.
Solicitors: Duncan Lewis & Co, Battersea; Treasury Solicitor
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