United Kingdom Asylum and Immigration Tribunal

MO (Date of decision: applicable rules) Nigeria [2007] UKAIT 00057

ASYLUM AND IMMIGRATION TRIBUNAL

Date of hearing: 17 October 2006

Date Determination notified:

Before

Mr C M G Ockelton, Deputy President of the Asylum and Immigration Tribunal Senior Immigration Judge Freeman Senior Immigration Judge Perkins

Between

MO	APPELLANT
and
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.

1. The appellant is a citizen of Nigeria. She came to the United Kingdom in September 2005 for a two months clinical attachment. She undertook a further clinical attachment and in January 2006 received confirmation that the basic surgical training she had received was, in the view of the UK's Postgraduate Medical Education and Training Board, "acceptable". She then applied for leave to remain as a postgraduate doctor. That application was made on 17 January 2006, at which time, pursuant to the provisions of the Statement of Changes in Immigration Rules HC 299, which came into effect on 19 July 2005, a person who had only an overseas medical degree was, subject to other requirements including registration with the General Medical Council, eligible to apply for an extension of leave as a postgraduate doctor or dentist. On 3 April 2006 there was a further radical restructuring of the Immigration Rules in this area, by Statement of Changes in Immigration Rules HC 1016, which came into force on that date. One of the changes was that in future a person could not have leave to enter or remain in the United Kingdom as a postgraduate doctor or dentist unless he

"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."

2. Under the Rules as amended the appellant has no claim to an extension of leave, because she has no UK degree. The Secretary of State made his decision on the appellant's application on 26 April 2006. He refused it. The refusal is in short form, but it is clear that it was motivated by the Rules are they were on the date he made his decision.
3. The appellant appealed against the refusal to an Immigration Judge, who held, following HS [2005] UKAIT 00169, a decision of this Tribunal, that the Secretary of State was right to apply the Rules as they were at the time of his decision and that the appellant had no right to have her application decided according to the Rules as they were at the date the application was made. The appellant sought and obtained an Order for Reconsideration. Thus the matter comes before us.
4. There were human rights issues raised in the appellant's Notice of Appeal. They were dealt with by the Immigration Judge on the basis of JM * [2006] UKAIT 00009 and have not been argued or reserved before us. We mentioned them for two reasons only. One is that it appears that their having been raised means that the appellant undoubtedly does have an in-country right of appeal against the decision of 26 April 2006. The other is that we ought to point out that there might be some difficulty in arguing them now, bearing in mind that the appellant did not seek leave to enter for any permanent purpose, although she now claims that it will be contrary to her human rights not to allow her remain indefinitely.
5. The issue with which we are concerned is stated as follows in the grounds for reconsideration:

"The sole ground on which reconsideration is sought is that the Judge was wrong to place reliance on HS [2005] 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 (6^th 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 (4^th 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 [1999] 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.

6. The grounds also state "HS aside, there is no authority directly on point". That, regrettably, is not the case. As we pointed out at the hearing, there is a decision of what we would regard with respect as a strong Divisional Court, Lord Widgery CJ, Eveleigh LJ and Stephen Brown J, in R v IAT ex parte Nathwani [1979-80] Imm AR 9.
7. The applicant in that case was a citizen of India. On 10 December 1976 he was granted leave to enter the United Kingdom for one month. On 1 January 1977 he married a British citizen who had apparently previously been a total stranger to him. He then applied for leave to remain as her husband. When a Home Office investigator visited the alleged matrimonial home he found that they were not living together there. At the time of the application, the relevant Immigration Rule was paragraph 25 of Cmnd 5716:

"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."

8. It was evidently a matter of great importance for Mr Nathwani that his application should be decided under the Immigration Rules as they were at the time of the application on 3 January, rather than as they were at the date of the decision, which in his case was 27 May 1977. Before the Divisional Court it was argued that both the Secretary of State and the Immigration Adjudicator should have applied the Immigration Rules before their amendment by HC 239. Stephen Brown J, who gave the first judgment, said this:

"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."

9. Eveleigh LJ said:

"I agree. I think it is important to bear in mind the words of Lord Denning MR in R v SSHD ex parte Hosenball [1977] 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."

10. Lord Widgery CJ agreed with both judgments. Before looking at some more general issues arising from that decision, we should remark that we think that there might be a misprint in what is reported as the judgment of Eveleigh LJ. We think it is very unlikely that he can have said "the Rules and their statutory interpretation depend very largely on vested rights." Nobody could think that the Immigration Rules "depend very largely on vested rights". We think that what Eveleigh LJ must have said, bearing in mind that both the general principles of statutory interpretation and the provisions of the Interpretation Act 1978, is "the rules of statutory interpretation depend very largely on vested rights".
11. It is possible to dispute whether decisions of the Divisional Court are strictly binding on the Tribunal. We think that they are; but even if this decision were not binding on the Tribunal we would hesitate greatly before departing from the view of such a distinguished court. The facts of Nathwani's case offer no possibility for the present appellant to distinguish it. It would nevertheless be right for us to consider the matter afresh if it could be shown that the decision was so out of date that it ought not to be regarded any longer as a binding precedent. Twenty seven years is a long time in immigration law; and although antiquity itself is no reason for disregarding a precedent, developments in the general law may destabilise the sub-stratum of a particular decision. When Lord Denning made his remarks in Hosenball, and when Nathwani's case was decided, the Immigration Rules were expressed in terms very different from those of HC 395. It is almost inconceivable that a statute of 1977 could have contained the phrase "the law (including Immigration Rules)", which appears in s86(3)(a) of the 2002 Act. In 1977 Adjudicators were appointed and paid by the Home Office and had no real claim to independence, although the Immigration Appeal Tribunal was always an independent judicial or quasi-judicial body. There have been very considerable developments in administrative law since 1977; and the Human Rights Act 1998 has affected many of the cases in which claims are made by individuals against public authorities including the government. Whether Nathwani's case should be regarded as authoritative is, therefore, a question which can properly be asked. It demands an answer because it is our experience that the question raised in this reconsideration is being raised very frequently before this Tribunal at present. The reason may be the view expressed by Macdonald's Immigration Law and Practice, as cited in the grounds. It may be simply because changes in the Immigration Rules are now so frequent. There were 31 Statements of Changes between 31 May 2003 and 11 December 2006, including three in March 2006, part of the purpose of the third being to clarify the second, which had not yet taken effect; and two in November 2005, the purpose of the second being to restore the list of countries from which working holidaymakers might come, which had been "accidentally" deleted by the first.
12. It may well be that, as the grounds imply, changes in Immigration Rules tend to work against applicants. We do not know whether that is in general true, but it is not necessarily the case, and we remind ourselves that Cmd 3669, which abolished the primary purpose rule, operated in favour of applicants. We doubt that if those acting for the appellant in the present case would wish to say that their arguments had equal force in cases where there had been a change in the Immigration Rules beneficial to applicants.
13. The fundamental question is whether there has been such a change in attitude to the Immigration Rules that what was said about them in Nathwani's case should no longer be regarded as current. Although there have been many developments and changes which we have mentioned, and although there have been statutes dealing solely with matters relating to immigration in 1999, 2002, 2004 and 2006, there has been no formal change in the status of the Immigration Rules. It is perhaps worth setting out s3(2) of the Immigration Act 1971, which has never been amended:

"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)."

14. The Immigration Rules are not a statute or a statutory instrument. Although they are to be laid before Parliament, and although they are subject to a negative resolution by either House, they remain the Secretary of State's "Rules laid down by him as to the practice to be followed". Although they can have no effect if the legislature disapproves of them, the Immigration Rules are essentially executive, not legislative. Section 3(2) of the 1971 Act sets down the procedure for making what are essentially statements of policy; it does not change those statements from policy into legislation. As executive rules or policy they are in our view not amenable to interpretation as though they were statutes or statutory instruments. The Secretary of State is entitled and bound to make and operate the United Kingdom's immigration policy and he is entitled to make decisions about particular cases by reference to the policy in operation at the time the decision is made.
15. That is not to say that there cannot be transitional provisions in Immigration Rules. As we have seen, when the Immigration Rules were completely restructured by HC 395 in 1994, there were transitional provisions; a more recent and subtle example is HC 974 of March 2006, which, in substituting a new paragraph 60(i), preserves the position of a individuals in a number of different categories who had different sorts of leave granted before 22 July 2004, 30 September 2004, or 1 July 2006 (the latter date being after the coming into force of the new rule). Where there are transitional provisions, the transitional provisions form part of the United Kingdom's immigration policy as set out in the Rules. Where there are no transitional provisions, individuals are not entitled to say that old, rather than current policy, should be applied to them.
16. The appellant can gain nothing by putting his claim in the language of legitimate expectation. His only legitimate expectation is to have his application decided in accordance with the Rules at the time the decision is made. Any other view would entail the conclusion that the Secretary of State's power to make policy by changing the Rules from time to time is hampered or fettered (see In re Findlay [1985] AC 318). (It might be thought that R v SSHD ex parte Hargreaves [1997] 1 WLR 906 assists the appellant with its similar view expressed in terms of the policy in force at the date of the application. It is clear, however, that in Hargreaves no point was taken about any interval of time between application and decision. The court's view was that the applicant was not entitled to require that the decision be made by reference to any pre-existing policy. Lord Woolf MR's summary of Hargreaves in R v North and East Devon Health Authority ex parte Coughlan [2001] QB 213 at [75] refers only to the right that applications be "considered individually in the light of whatever policy was in force at the time". Hargreaves is not authority for the view that the relevant policy is that in force at the time of any application as distinct from that in force at the date of the decision.)
17. So far as legitimate expectation as to procedure is concerned, we should add that it is not (and could not properly be) suggested that the Secretary of State's position, whether before or after any change of Rule, is that he will not entertain applications outside the Rules. On the contrary: it is clear that applicants may make applications on an exceptional basis outside the Rules and that such applications are sometimes successful.
18. It is rare indeed for a legitimate expectation in public law to give rise to a substantive benefit, as would enure here if the appellant had a right to the leave he would have been granted if the Rule had not been altered. In Coughlan Lord Woolf MR said at [59]:

"[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 [2005] EWCA Civ 1363.

19. For completeness we should add that in our view the decision in the European Court of Justice in Marks & Spencer v Customs and Excise Commissioners [2003] QB 866 does not assist the appellant either. The Court was there concerned with the reduction, by United Kingdom legislation, of the limitation period within which a United Kingdom company could reclaim VAT overpaid in error. But here there was no doubt that before the legislative change the claimant had an enforceable right not itself subject to any change in policy, as the Court had previously recognised in Grundstückgemeinschaft Schlossstrasse GbR v Finanzamat Paderborn [2000] ECR I – 4279.
20. Reference is made in the grounds for reconsideration in this case to the fact that the Secretary of State took three months to decide the appellant's application. That does not appear to us to be an unduly long period. It is less than the period in Nathwani itself. It will be apparent from what we have already said that, in order to be able to rely on any such delay, a claimant will have to do more than merely show that different, more beneficial rules were in force at the time he made his application. It seems to us that in general it will be necessary to show one of two things. The individual might be able to prove the existence of an undertaking or policy that his case would be decided at a time which was before the Rule was changed. Such appears to have been the position in the case of AH in R (A, H and AH) v SSHD [2006] EWHC 526 (Admin). Merely to show a target for deciding a certain proportion of cases within a given time would not, of course, be sufficient for these purposes. Alternatively, it might be possible in an exceptional case to prove that the changing of the Rules was a deliberate decision by the Secretary of State amounting to an abuse of power, as was identified by Sullivan J in R (S and others) v SSHD [2006] EWHC 1111 (Admin). Both these decisions were decisions on policies outside the ambit of the Immigration Rules, but in our view it is in the law relating to published executive policies rather than in the law relating to the interpretation of statutes that any remedy lies in cases such as the present.
21. Save in such circumstances, an individual applicant has no right to require the United Kingdom's immigration policy to be the subject of abridgement or dispensation for his benefit. As Eveleigh LJ said, he has no right to dictate to the Secretary of State which set of rules should be applied at the time of the decision in his case. Nathwani remains good law. In the absence of a transitional provision, the Immigration Rules in force at the date of the decision are those to be applied to that decision.
22. The Immigration Judge made no error in law. We order that his determination shall stand. The appellant's appeal is dismissed.

C M G OCKELTON

DEPUTY PRESIDENT

Date: