MO (Date of decision: applicable rules) Nigeria  UKAIT 00057
ASYLUM AND IMMIGRATION TRIBUNAL
Date of hearing: 17 October 2006
Date Determination notified:
|Secretary of State for the Home Department||RESPONDENT|
For the Appellant: Mr D Krushner, instructed by Duncan Lewis & Co. Solicitors
For the Respondent: Mr K Norton, Home Office Presenting Officer
DETERMINATION AND REASONS
The Immigration Rules applicable to an immigration decision are, in the absence of transitional provisions or any contrary legitimate expectation, the rules in force at the date of the decision. Nathwani [1979-80] Imm AR 9 remains good law.
"has successfully completed and obtained a recognised UK degree in medicine or dentistry from either:
(a) a UK publicly funded institution or further or higher education, or
(b) a UK bona fide private education institution which maintains satisfactory records of enrolment and attendance."
"The sole ground on which reconsideration is sought is that the Judge was wrong to place reliance on HS  UKAIT 00169, because that case was wrongly decided."
The grounds go on to point out that HS is not starred (indeed, bearing in mind the constitution of the Tribunal that decided it, it could not be starred) and argues that it should not be treated as binding. The grounds quote Macdonald's Immigration Law and Practice (6th edition, 2005) at paragraph 1.50:
"Where changes are made to the Immigration Rules, it is sometimes difficult to establish whether the old or new Rules apply. The transitional provisions in the current Rules, HC 395, provide that applications extant prior to their coming into force will be decided under the previous Rules. We suggest that the same logic should apply with regard to amendments, so that applications made before the amendments take effect should be dealt with under the unamended Rules. Any other Rule penalises the applicant for Home Office delays."
HS had taken paragraph 4 of HC 395 (which contains the transitional provisions) as an illustration of the fact that Immigration Rules were capable of including transitional provisions where it was thought appropriate. The grounds challenge the conclusion reached in HS that where there are no transitional provisions, the Rules in force at the date of decision are to apply. They cite Bennion on Statutory Interpretation (4th Edition 2002) as follows:
"Where an act contains substantive, amending or repealing enactments, it commonly also includes transitional provisions which regulate the coming into operation of those enactments and modify their effect during the period of transition. Where the act fails to include such provisions expressly, the court is required to draw such inferences as to the intended transitional arrangements, as, in the light of the interpreted criteria, it considers Parliament to have intended."
The grounds go on to argue that given "that the time of decision is wholly within the power of the respondent, who has, at least in the past, been notorious for delay in decision-making, sometimes of years", it cannot have been intended that the applicant should be penalised by a change in the Rules between his application and the decision. The grounds go on to cite s16(1)(c) of the Interpretation Act 1978, which provides that, subject to any contrary intention, the repeal of an enactment does not affect any "right … acquired, accrued or incurred" under that enactment. That provision was examined by the Court of Appeal in Chief Adjudication Officer v Maguire  1 WLR 1778 where the majority, Clarke and Waller LJJ, found that an "accrued" right was one in respect of which the individual had taken steps to realise it, so that in the context of that case it would accrue when a claim was made. By analogy with legislation and with the Immigration Rules, the grounds argue that when an application is made there is a right accrued that the application be decided in accordance with the rules in force at that time.
"A man admitted in a temporary capacity who marries a woman settled here should on application have the time limit on his stay removed".
On 22 March 1977, new Immigration Rules contained in HC 239 came into effect. They inserted paragraphs 26 and 26A as follows:
"Subject to paragraph 26A, a man admitted in a temporary capacity who marries a woman settled here should have the time limit on his stay removed unless the marriage took place within the twelve months immediately preceding his application, in which event his stay should be extended for a further period not exceeding twelve months. Where an extension is granted any restriction on the taking of employment should be removed and, subject to paragraph 26A, the time limit may be removed at the end of that period.
26A. An extension of stay or leave to remain will not be granted, and any time limit will not be removed, under paragraph 25 or 26 if the Secretary of State has reason to believe that the marriage is one of convenience entered into primarily to obtain settlement here with no intention that the parties should live together permanently as man and wife."
"In my judgment, it is necessary to consider what the position was at the time when the Secretary of State made his decision on 27 May 1977. It is quite apparent that at that time – at the time of his decision – the effective Rules were paras 26 and 26A of HC 239 which had come into effect as from 22 March 1977. It would seem abundantly clear to me that the Secretary of State was quite correct in considering this application in the light of the Rules which were in force at the time when he considered the application, and that accordingly he was quite correct in considering the matter under paras 26 and 26A of HC 239; and, furthermore, that the Adjudicator was quite correct in proceeding upon that particular basis.
… It seems to me that, bearing in mind that the Rules are not statutes or statutory instruments which give rights to any person, there can be no question here of restrospectivity applying certainly to the time of the application as distinct from the time of the Secretary of State's consideration of the application and his decision. This is a matter, in my judgment, which is so abundantly clear that no arguable point of law can arise upon it."
"I agree. I think it is important to bear in mind the words of Lord Denning MR in R v SSHD ex parte Hosenball  1 WLR 766 at 780 where he said:
'They are not rules of law. They are rules of practice laid down for the guidance of immigration officers and tribunals who are entrusted with the administration of the Act. They can be, and often are, prayed in aid by applicants before the courts in immigration cases.'
When one bears that in mind, there is no right in the applicant to dictate to the Secretary of State which set of Rules should be applied at the time of the decision of a case. The Rules are essentially rules which have to be regarded at the time of a decision.
The argument of Mr Nathan that in effect this is giving retrospective effect to the Rules, and then by analogy to the interpretation of statutes contending that that was not permissible, is, in my view, a mistaken approach. The Rules and their statutory interpretation depend very largely on vested rights. There were no such rights in the present case."
"3(2) The Secretary of State shall from time to time (and as soon as may be) lay before Parliament statements of the rules, or of any changes in the rules, laid down by him as to the practice to be followed in the administration of this Act for regulating the entry and stay in the United Kingdom of persons required by this Act to have leave to enter, including any rules as to the period for which leave is given and the conditions to be attached in different circumstances; and section 1(4) above shall not be taken to require uniform provision to be made by the rules as regards admission of persons for a purpose or in a capacity specified in section 1(4) (and in particular, for this as well as other purposes of this Act, account may be taken of citizenship or nationality).
If a statement laid before either House of Parliament under this subsection is disapproved by a resolution of that House passed within the period of forty days beginning with the date of laying (and exclusive of any period during which Parliament is dissolved or prorogued or during which both Houses are adjourned for more than four days), then the Secretary of State shall as soon as may be make such changes or further changes in the rules as appear to him to be required in the circumstances, so that the statement of those changes be laid before Parliament at latest by the end of the period of forty days beginning with the date of the resolution (but exclusive as aforesaid)."
"[M]ost cases of an enforceable expectation of a substantive benefit … are likely in the nature of things to be cases where the expectation is confined to one person or a few people, giving the promise or representation the character of a contract."
We note the word "most". But we can see no useful or proper purpose in extending this category to cases such as the present, where the group of potential claimants would be large and (for various reasons including successive changes in the Rules) constantly changing, and would furthermore consist of persons to none of whom had any relevant promise or representation actually been made. We note also that a similar view motivated the decision of the Court of Appeal in Nadarajah v SSHD  EWCA Civ 1363.
C M G OCKELTON