Odelola v Secretary of State for the Home Department

JurisdictionUK Non-devolved
Judgment Date20 May 2009
Neutral Citation[2009] UKHL 25
CourtHouse of Lords
Date20 May 2009
Odelola (FC)
Secretary of State for the Home Department

[2009] UKHL 25

Appellate Committee

Lord Hope of Craighead

Lord Hoffmann

Lord Scott of Foscote

Lord Brown of Eaton-under-Heywood

Lord Neuberger of Abbotsbury



Richard Drabble QC

Tim Buley

(Instructed by Duncan Lewis and Co)


Elisabeth Laing QC

Sam Grodzinski

(Instructed by Treasury Solicitors)


My Lords,


I have had the advantage of reading in draft the opinions of my noble and learned friends Lord Brown of Eaton-under-Heywood and Lord Neuberger of Abbotsbury. I agree with them, and for the reasons they give I would dismiss the appeal.


Although this does not affect the outcome of the appeal, I wish like my noble and learned friend Lord Scott of Foscote to associate myself with what Lord Brown says in the last paragraph of his opinion. It is perfectly clear that the appellant would have succeeded in her application as the rules stood in January 2006 when she submitted it together with the prescribed fee. It is equally clear that, had she known what the rules were to say by the time the application came to be considered several months later, she would have seen that it was pointless to apply and she would not have parted with her money. I have no doubt that counsel for the Secretary of State was right not to give an undertaking that it would be returned to her, as the rules do not provide for this. There is something to be said for dealing with mishaps of this kind on a case by case basis. This case, however, is one where none of the responsibility for the wasted expenditure lies with the appellant. It lies entirely with the Secretary of State and her officials. Fair dealing, which is the standard which any civilised country should aspire to, calls out for the fee to be repaid.


My Lords,


This case turns on the construction of the Statement of Changes in Immigration Rules 2006 (HC 1016), which came into force on 3 April 2006. Until then, a foreigner with any medical qualification was entitled to apply for leave to remain in the United Kingdom as a postgraduate doctor. The new rule confined the entitlement to those with medical qualifications from UK institutions. Did the new rule apply to all cases in which leave still had to be granted? Or only to doctors who had not yet applied? The distinction was vital to the appellant Dr Odelola, whose qualification was gained in Nigeria. She had applied on 17 January 2006 but when the new rule came into force her application had not yet been determined.


Like any other question of construction, this depends upon the language of the rule, construed against the relevant background. That involves a consideration of the immigration rules as a whole and the function which they serve in the administration of immigration policy. The language of the rule is not in itself much help. It states the new rule but does not say anything expressly one way or the other about whether it is to apply to existing applications or not.


There was a good deal of argument about whether the rules attract a presumption (either under the Interpretation Act 1978 or the common law) that they are not intended retrospectively to take away vested rights. But, as Lord Rodger of Earlsferry pointed out in Wilson v First County Trust Ltd [2004] 1 AC 816 at p. 880, such arguments are usually circular. If a vested right means a right which will not be construed as taken away except by express language, then an appeal to the presumption only transfers the argument to the question of whether you have a vested right.


The status of the immigration rules is rather unusual. They are not subordinate legislation but detailed statements by a minister of the Crown as how the Crown proposes to exercises its executive power to control immigration. But they create legal rights: under section 84(1) of the Nationality, Immigration and Asylum Act 2002, one may appeal against an immigration decision on the ground that it is not in accordance with the immigration rules. So there is no conceptual reason why they should not create rights which subsequent rules should not, in the absence of express language, be construed as removing. The question is whether, on a fair reading, that is what they do.


In my opinion, if one looks at the function of the rules, they should not be so construed. They are, as I have said, a statement by the Secretary of State as to how she will exercise powers of control over immigration. So the most natural reading is that (in the absence of any statement to the contrary) they will apply to the decisions she makes until such time as she promulgates different rules, after which she will decide according to the new rules. That was the understanding of the Divisional Court in R v IAT ex p Nathwani [1979-80] Imm AR 9. If new rules are intended to apply only to applications made after they come into force, they expressly say so, as they did in paragraph 4 of the Immigration Rules 1994 (HC 395).


I therefore think that the Court of Appeal decision was right and I would dismiss the appeal.


My Lords,


I have had the advantage of reading in draft the opinion on this appeal of my noble and learned friend Lord Brown of Eaton-under-Heywood and find myself compelled by the reasons he has given to agree that this appeal must be dismissed.


I want, particularly, to associate myself strongly with Lord Brown's remarks (para 40) about the fee of £335 that the appellant was obliged to pay in order to make her application for leave to remain in this country as a post-graduate doctor (para 21) of Lord Brown's opinion. The amount of the fee is calculated, your Lordships were given to understand, as representing in part a contribution to the departmental costs of processing an application and in part a payment in recognition of the benefits an applicant would obtain from a successful application. The appellant, of course, made her application on the basis of the Secretary of State's rules in force at the time she made it, 17 January 2006. On the basis of those rules she had, it is accepted, a justified expectation that her application would be successful. But the rules were changed as from 3 April 2006. Her application had not by then been dealt with. Under these new rules her application was bound to fail.


So what benefit did the appellant receive for her £335? The answer is 'None'. She paid her money on what turned out to be a false and misleading prospectus. The least that the Secretary of State can be expected to do is to return her fee. But I agree that her appeal fails.


My Lords,


The UK, like every other sovereign state, has the right to control access to its borders. Immigration control in the UK is the responsibility of the Home Secretary. The Immigration Act 1971 recognises that it is for the Secretary of State to decide and lay down rules as to the practice to be followed in controlling immigration (rules which may be changed whenever the Secretary of State thinks necessary), and it provides for these rules and any changes in them to be laid before Parliament. Changes in the rules are always stated to take effect from a given date. Sometimes they will contain transitional provisions, sometimes not. The present appeal arises from a rule change which contained no transitional provisions. The narrow but important issue it raises is whether, in such a case, an application for leave to enter or remain is to be decided according to the version of the rules in force at the date of decision or according to whatever earlier version was in force at the time when the leave application was made.


The importance of the issue is obvious: rule changes are frequently made and generally there will be a large number of outstanding applications pending. But the narrowness of the issue also needs to be stressed. It is not the appellant's case that rule changes cannot apply to pending applications, only that if they are to do so, the rules themselves must expressly so specify; if the rules are silent as to this, submits the appellant, the default position is that applications must be decided according to the rules in force when they were made.


In so submitting, Mr Drabble QC seeks to rely upon "well-established principles of statutory construction, as contained in both the Interpretation Act 1978 (the 1978 Act), and the common law. Those principles, which are intended to protect accrued rights, and so provide individuals with a measure of certainty upon which to order their affairs, are: (i) Section 16(1)(c) of the 1978 Act, and (ii) the common law presumption against retrospectivity" (paragraph 2 of his printed case). That is the argument.


Section 16(1) of the 1978 Act provides:

"16(1) … where an Act repeals an enactment, the repeal does not, unless the contrary intention appears, … (c) affect any right, privilege, obligation or liability acquired, accrued or incurred under that enactment."

Section 23 of the 1978 Act applies the Act to " subordinate legislation" just as to Acts of Parliament and, by section 21, provides that:

" ' Subordinate legislation' means Orders in Council, orders, rules, regulations, schemes, warrants, bylaws and other instruments made or to be made under any Act."

A change in the immigration rules, submits Mr Drabble, constitutes subordinate legislation repealing an earlier such enactment.


Before turning to the facts of the case it is convenient next to set out the sections of the 1971 Act which continue to this day to make provision for the immigration rules. Section 1(4) refers to the rules as "the rules laid down by the Secretary of State as to the practice to be followed in...

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