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.

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