R Kumar v Secretary of State for the Home Department

JurisdictionEngland & Wales
JudgeLord Justice Burnett
Judgment Date23 February 2016
Neutral Citation[2016] EWCA Civ 320
CourtCourt of Appeal (Civil Division)
Docket NumberC4/2014/1167 & C4/2014/1167(A)
Date23 February 2016

[2016] EWCA Civ 320




Royal Courts of Justice


London, WC2A 2LL


Lord Justice Burnett

C4/2014/1167 & C4/2014/1167(A)

The Queen on the application of Kumar
Secretary of State for the Home Department

Mr P Corben (instructed by MT UK Solicitors) appeared on behalf of the Applicant

The Respondent was not present and was not represented

(Approved by the court)

Lord Justice Burnett

The Applicant was refused leave to remain in the United Kingdom as a Tier 2 (General) migrant on 27 September 2012 because he failed to secure sufficient points under paragraphs 76 to 79D of the Immigration Rules. His gross annual salary was less than that set out in appendix J to the rules and so "less than the appropriate rate for the job" for the purposes of paragraph 79B.


This was a second decision by the Home Office. The first was made on 12 July 2012 on precisely the same basis. However, the rules then in place did not set out salary levels in the body of the rules themselves (that is in an annex), but in an external code of practice which had not been laid before Parliament.


On 18 July 2012 the Supreme Court gave judgment in R (Alvi) v Secretary of State for the Home Department [2012] 1 WLR 2208. It held (1) that section 3(2) of the Immigration Act 1971 which required to be laid before Parliament statements of the rules and of any changes to the rules as to the practice etc to be followed applied to any requirement which a migrant had to satisfy as a condition of being given leave to enter or remain in the United Kingdom; (2) that the Immigration Rules should therefore include all provisions which set out criteria which were or might be determinative of an application for leave to enter or remain; and (3) that the question whether material in an extraneous document was a rule or a change in the rules to which section 3(2) applied had to be determined on the facts of each case.


To be effective, the requirements in the code referred to in the rules should have been laid before Parliament. On 20 July 2012 the rules were relaid before Parliament with the many extraneous requirements contained in guidance and codes of practice brought within the substance of the rules themselves.


The Home Office, in the face of a threat of judicial review, withdrew the first decision. The Applicant's argument is that the Home Office should have reconsidered his application by reference to the unamended rules which were in place when the first decision was made. On his behalf, Mr Corben submits that had that been the position, his application would have succeeded.


The application for permission to apply for judicial review was refused on paper, but allowed at a renewed oral hearing. The substantive hearing came before Clare Moulder QC sitting a Deputy High Court Judge. In a judgment handed down on 10 March 2014 she dismissed the claim: see [2014] EWHC 644 (Admin).


There was a single ground, namely that it was unlawful to apply the new rules retrospectively. That ground was supported by three arguments: (1) that the decision of the House of Lords in Odelola v Secretary of State for the Home Department, also known as MO (Nigeria), [2009] 1 WLR 1230, which established that immigration decisions should be taken by reference to the rules in place at the time of the decision rather than at the time of the application, was no longer good law. It was submitted that Odelola could not survive the two subsequent decisions of the Supreme Court in Alvi and in R (Munir) v Secretary of State for the Home Department [2012] 1 WLR 2192.


(2) That in any event the Applicant had a "vested right" to have the fresh decision taken by reference to the old rule. The vested right was of the nature described by Lord Neuberger in his judgment in Odelola.


(3) The Home Office...

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