Odelola v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lord Justice Buxton,Lord Justice Longmore,Lord Justice Richards |
| Judgment Date | 10 April 2008 |
| Neutral Citation | [2008] EWCA Civ 308 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: C5/2007/1156 |
| Date | 10 April 2008 |
[2008] EWCA Civ 308
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ASYLUM AND IMMIGRATION TRIBUNAL
Mr CMG Ockleton, Deputy President, and members
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Buxton
Lord Justice Longmore
Lord Justice Richards
Case No: C5/2007/1156
HR/00295/2006
Mr Richard Drabble QC and Mr Tim Buley (instructed by Duncan Lewis & Co) for the Appellant Mr Sam Grodzinski (instructed by The Solicitor to Her Majesty's Treasury) for the Respondent
Hearing date : 19 March 2008
The facts and the issue
The basic facts, and the issue that was before the AIT and which is now before this court on appeal, are succinctly set out in §§ 1–3 of the Determination of the AIT from which this appeal is brought, and on which I cannot improve:
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 UK publicly funded institution or further or higher education, or
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 [as] 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 [by the AIT].
How the appellant puts her case
The appellant asserts 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. She did not put that claim on the basis of any legitimate expectation; indeed, in the skeleton before this court her advisers were critical of the AIT for even referring to the concept of legitimate expectation, when it should have been clear to them that that was no part of the appellant's case. Although the matter was not explored before us, there were plainly two reasons why the appellant took that position. First, as a matter of fact, there was nothing to ground any such expectation. The Secretary of State had neither given an express promise that she would decide applications on the basis of the Immigration Rules as they stood at the date of the application, nor had followed any regular practice to that effect: indeed counsel for the Secretary of State told us, without contradiction, that it had been the Secretary of State's regular practice to act as she had done in the present case. Second, there was a strong forensic reason why the appellant had to avoid the language of legitimate expectation. That jurisprudence lives in the world of, and attracts the rules of, administrative law. Once the case is seen as one of administration, the appellant is faced with the principle that administrative policy, such as expressed in HC 299, can change. As Lord Diplock put it in Hughes v DHSS [1985] 1 AC 776 at p 788A:
Administrative policies may change with changing circumstances, including changes in the political complexion of governments. The liberty to make such changes is something that is inherent in our constitutional form of government.
The appellant therefore had to assert that in deciding her case according to HC 1016 the Secretary of State had not made an error of an administrative law nature, but rather had infringed a right more akin to a right in private law, that vested in the appellant at the moment at which she made her application, and of which she could not thereafter be deprived. No such right is to be found in the Immigration Rules themselves. The case accordingly had to be based on the assertion that general principles of substantive, not administrative, law prevented the Secretary of State from acting inconsistently with the appellant's right to have the case decided on the rules as they stood at the date of the application, however much those rules might have changed between the date of the application and the date of the decision. Those principles were to be found in the Interpretation Act 1978 [the 1978 Act], reinforced by consistent assumptions of the common law.
It will be seen that this was a striking claim. The appellant had no expectation that her case would be decided according to HC 299, but she had a right that it should be so decided. The only explanation of that paradox would be that there has been a consistent pattern of unlawful behaviour on the part of the Secretary of State, albeit not previously discerned by lawyers working in this field; and indeed Sir Henry Brooke, who granted permission for this appeal to be brought, was told that the point applied generally across the whole of the Immigration Rules, and was therefore capable of affecting a very large number of cases. This appeal must therefore be examined in some detail.
I proceed in the following order. I first set out the way in which the appellant puts her case under the 1978 Act. That exposition makes clear that crucial to the argument is the juristic status of the Immigration Rules. I therefore examine the background to those rules and the considerable weight of authoritative comment on them, which makes it clear that the appellant's case is unsustainable. That conclusion is not, however, based only on authority, but springs also from consideration of the terms and effect in law of the Immigration Rules.
The appellant pointed to section 16(1)(c) of the 1978 Act, which provides that
where an Act repeals an enactment, the repeal does not, unless the contrary intention appears…..affect any right, privilege, obligation or liability acquired, accrued or incurred under that enactment.
That provision was said to apply in the case of rights acquired under the Immigration Rules because section 23 of the 1978 Act applies to “ subordinate legislation” as to Acts of Parliament, and by section 21 subordinate legislation means
Orders in Council, orders, rules, regulations, schemes, warrants, byelaws and other instruments made….under any Act
The Immigration Rules had been “made under” an Act because their genesis was in section 3(2) of the Immigration Act 1971 [the 1971 Act], which provides that
The Secretary of State shall from time to time…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 into and stay in the United Kingdom of persons required by this Act to have leave to enter….
Second, and in support of what the appellant said was the clear meaning of the 1978 Act as applied to her case, the common law assumption was that, in the absence of transitional provisions (and none such were included in Statement of Change HC 1016), an enactment was not intended to have retrospective effect. That principle should either be applied directly, or be used to reinforce the construction that the appellant sought to place on the 1978 Act.
It cannot be gainsaid that, granted its premises, the appellant's argument has considerable logical force. The difficulty lies in those premises. Crucial to the argument is the claim that the Immigration Rules are subordinate legislation as that concept is understood in the 1978 Act, with the result that the right that accrued to the appellant when she made her application remained vested in her thereafter by the operation of section 16(1)(c). A first difficulty about that claim is the nature of the “right” that the appellant acquired when she made her application. I will however postpone consideration of that question until we have explored the more general claim, that the Immigration Rules are indeed subordinate legislation as understood in the 1978 Act.
The origins and purpose of the Immigration Rules
It is a truism in international law that a state has the...
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