UK: Immigration Rules And The Date Of Decision

Last Updated: 20 October 2009
Article by James Packer

Applicants for leave under the Immigration Rules must meet the terms of those rules at the time that the application is decided, not the rules in force at the date the application is made. The House of Lords so held in the case of MO (Nigeria) v Secretary of State for the Home Department, [2009] UKHL 25 in a judgement promulgated in May 09, in which Duncan Lewis & Co. acted for the Appellant.

Applicants (and their advisors) require fortune tellers - MO (Nigeria) Part I

This case involved a doctor with limited Leave to Remain in the United Kingdom as a visitor undergoing a clinical attachment (an unpaid course to allow foreign doctors to familiarize themselves with UK medical practice) who sought further Leave to Remain as a doctor and practise in the United Kingdom, a normal course of seeking entry as a doctor at the time, and one specifically contemplated in the Immigration Directorate's Instructions.

At that time the application was made the requirements of the Immigration Rules were met by MO and had the application been decided on that day, it ought to have been allowed. Unfortunately, for MO there was a delay (of only a few months) and in the interim period the Secretary of State changed the rules such that there is now a new requirement that a person in the position of MO must have obtained their medical degree in the United Kingdom, which MO had not. This is irrespective of the fact that overseas qualified doctors are required to demonstrate that their skills and training are to a level suitable to allow them to practise in the United Kingdom. The Secretary of State then refused the application on the basis that it did not meet the new rules.

In the light of the continuing delay by the Secretary of State in making decisions on immigration applications and the contrasting eagerness to continuously amend the Immigration Rules1 it is not surprising that for large numbers of applications the relevant immigration rules have changed between the date of submission and the date of decision, often with no explicit transitional provisions in place. The issues in this case potentially affect thousands - possibly even tens of thousands - of applications a year.

Despite its importance, this issue had not been the subject of many reported cases in the higher courts and those that did exist were rather dated, with the lead case being heard in 1978. Further, the reasoning that was applied in those cases relied on various considerations of the Immigration Rules that may have applied at the time the cases were decided in 1970s (in those days Immigration Rules were guidance for Immigration Officers, and did not have the force of law in their application, in contrast to the current situation where, for the purposes of appeals to Immigration Judges, they have the force of law, and an application found on appeal to meet the Rules must be allowed) but no longer apply. MO also attempted to argue that, the Statutory Interpretation Act 1978 having come into force in the interim period, that she had an acquired right (in the language of the Act) to a decision under the rules in existence at the time of the application. (see Chief Adjudication Officer v Maguire [1999] 2 All ER 859), or in the alternative that the common law presumption against retrospectivity had the same effect.

Their lordships, despite roundly condemning the actions of the Secretary of State as unfair, especially as the Applicant had paid a substantial non-refundable fee to have her application considered, dismissed the appeal. They reached their decision essentially on the basis that an applicant's right to a fair decision under the rules, whether an 'acquired right' or not, applies to the rules in existence at the time the application is decided. This does at least provide a clear explanation of how it is possible to successfully appeal a refusal of a decision made under a rule that has subsequently been adversely amended (or even disappeared entirely) as the rules applicable at the point of decision become the fixed point around which the appeal revolves.

It is important to note that the Appellant was precluded in these proceedings from arguing her case on the basis that the decision was unlawful under section 6 of the Human Rights Act 1998 as being incompatible with her Convention rights2.

This outcome is to be regretted as it leaves applicants for leave (and their advisors) with the impossible task of framing their application to fit rules that are as yet unknown. The United Kingdom remains a long way from having an immigration system that is 'fit for the purpose'.


1 There were 31 changes to the Immigration Rules between 31 May 2003 and 11 December 06

2 Following the (now reversed on further appeal) decision in JM (Liberia) [2006] UKAIT 00009, a starred decision which held that unless an applicant who had been refused under the Immigration Rules had been served an order directing their removal from the United Kingdom the refusal could not be said the breach their human rights.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

In association with
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.