| IMMIGRATION — Appeal — Leave to enter and remain — Application to remain as postgraduate doctor under rules favourable to applicant — Change in immigration rules after date of application restricting scope of applications — Secretary of State considering and refusing application under new rules — Whether new rules having retrospective effect — Whether decision lawful – Statement of Changes in Immigration Rules 2006 (HC 1016)
MO (Nigeria) v Secretary of State for Home Office; [2008] WLR (D) 107
CA:(Buxton, Longmore and Richards): 10 April 2008
In the absence of any transitional provisions in Statement of Changes in Immigration Rules 2006 (HC 1016) the Secretary of State was bound to consider an application to remain in the United Kingdom under the new rules even though the application was made under the earlier and more favourable Statement of Changes in Immigration Rules 2005 (HC 299) before the new rules came into force.
The Court of Appeal so stated when dismissing the appeal by MO from the Asylum and Immigration Tribunal which, on 25 February 2007, dismissed her appeal from the Secretary of State who refusing her leave to remain in the United Kingdom as a postgraduate doctor. Her application was made on 17 January 2006 HC 299 which was thereafter changed and replaced on 3 April 2006 by HC 1016. The new rules severely restricted the scope of overseas doctors staying as postgraduates.
BUXTON LJ said that the appellant asserted that the Secretary of State had no option in law other than to decide her case according to the immigration rules as they stood on the date of her application. Here there were no “transitional” provisions, in the sense that HC 1016 came into effect in total replacement of HC 299 on the date on which it was made. Having concluded that the Immigration Rules were neither delegated nor subordinate legislation nor “rules” to which the Interpretation Act 1978 Act, His Lordship said that if they were indeed a statute, made by Parliament, or delegated legislation made under Parliament's authority, then scrutiny of Parliament’s presumed intention in not making any transitional provisions would be called for. But the rule-maker was the Secretary of State himself. While some cases were shown in which the effects of changes in the immigration rules have been expressly delayed, and the former regime retained in force during that period, it was impossible to demonstrate such a practice on the part of the Secretary of State that it should be implied even in cases where it was not expressly stated. So if one asked the question of what the rule-maker must have intended, the only reply was that she intended what she said in the present proceedings that she regularly intended and practised, to apply on any given date the rule as it stood on that date. The immigration rules, odd though they were as a rule-book, clearly had some legal force. The Secretary of State was formally constrained by them at any given time. Immigration judges had to apply them when hearing appeals from decisions of the Secretary of State. The effect of the appellate structure was to require the Secretary of State, in classic public law terms, to act in accordance with his declared policy for the time being. That was the limit of the obligation. There was no inhibition, save for the possibility of Parliamentary disapproval, on his changing the rules; and the subject could only expect his case to be dealt with on the basis of the current rules. Since what the immigration judge enforced when applying the Rules was an obligation of consistency such as was found in public law, the applicant’s only recourse in avoiding the effect of the changes would have been to the doctrine of legitimate expectation: but that was not her case.
LONGMORE LJ gave concurring judgment and RICHARDS LJ agreed with both judgments.
|
