R Kumar v Secretary of State for the Home Department

JurisdictionEngland & Wales
JudgeClare Moulder
Judgment Date10 March 2014
Neutral Citation[2014] EWHC 644 (Admin)
CourtQueen's Bench Division (Administrative Court)
Date10 March 2014
Docket NumberCase No: CO/11909/2012

2014 EWHC 644 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

Clare Moulder

(Sitting as a Deputy High Court Judge)

Case No: CO/11909/2012

Between:
The Queen on the application of Kumar
Claimant
and
Secretary of State for the Home Department
Defendant

Mr Zane Malik (instructed by Mayfair Solicitors) for the Claimant

Miss Jacqueline Lean (instructed by The Treasury Solicitor) for the Defendant

Hearing dates: 22 January 2014

Clare Moulder
1

This is an application for judicial review against the decision of the defendant to refuse the claimant further leave to remain pursuant to the Tier 2 points-based rules on 27 September 2012. Permission was refused on 4 January 2013 by order of Mr Timothy Brennan QC, but was granted by order of His Honour Judge Anthony Thornton QC on 17 May 2013, following an oral hearing on the renewed application for permission to apply for judicial review.

Chronology

2

The essential facts are as follows:

i) On 16 December 2008 the claimant was granted entry clearance as a work permit holder as a Tandoori chef for the Chahal Sweet Centre and Tandoori restaurant. The claimant made an application for further leave to remain in December 2011. This was rejected and in March 2012 the claimant submitted a Tier 2 (General) Migrant application for further leave to remain.

ii) On 12 July 2012 the defendant refused the claimant's application because the claimant's salary was less than the appropriate rate as stated in the UKBA published guidance.

iii) On 20 July 2012 paragraph 79B of Appendix A to the immigration rules was amended by CM 8423.

iv) On 23 July 2012 the claimant's solicitors served a pre-action letter for judicial review relying on the decision of the Supreme Court in Alvi v Secretary of State for the Home Department [2012] UKSC 33.

v) On 19 September 2012 the defendant withdrew its earlier decision (179).

vi) On 27 September 2012 the defendant refused the claimant's application on virtually the same grounds as the earlier decision in July 2012 in that the UKBA previous codes were now incorporated into the immigration rules as of 20 July 2012 (180).

3

The judicial review claim form was lodged on 7 November 2012.

Grounds

4

The single ground set out in the statement of grounds attached to the judicial review claim form is that it was unlawful for the defendant to apply the immigration rules retrospectively. It is submitted for the claimant that if the House of Lords decision in Odelola v Secretary of State for the Home Department [2009] UKHL 25 is read in conjunction with the Supreme Court decision in Munir v Secretary of State for the Home Department [2012] UKSC 32 it is arguable that Odelola is wrongly decided.

Legislative framework

5

The immigration rules are made by the Secretary of State and approved by Parliament pursuant to section 3(2) of the Immigration Act 1971. Applications for leave to remain as a Tier 2 (General) Migrant are governed by paragraph 245HD of the immigration rules.

6

At the time of the original decision of 12 July 2012 paragraph 245HD provided as follows: –

" to qualify for leave to remain as a Tier 2 (General) Migrant… under this rule, an applicant must meet the requirements listed below. If the applicant meets these requirements leave to remain will be granted. If the applicant does not meet these requirements, the application will be refused.

Requirements:

the applicant must not fall for refusal under the general grounds for refusal, and must not be an illegal entrant.

The applicant must have, or have last been granted, entry clearance, leave to enter or leave to remain:

…..

(xv) as a qualifying work permit holder

….

if applying as a Tier 2 (General) Migrant, the applicant must have a minimum of 50 points under paragraphs 76 to 79D of appendix A"

7

Paragraphs 76 to 79D at the time of the initial decision provided as follows:

" 76 An applicant applying for entry or leave to remain as a Tier 2 (General) Migrant must score 50 points for attributes

76A Available points for entry clearance or leave to remain as shown in table 11A

79. The points awarded for appropriate salary will be based on the applicant's gross annual salary to be paid by the sponsor……..

79B no points will be awarded for appropriate salary if the salary referred to in paragraph 79 above is less than the appropriate rate for the job as stated in the codes of practice for Tier 2 sponsors published by the UK border agency,…"

8

CM 8423 Statement of Changes in Immigration Rules under the heading "Implementation" states the changes set out in the statement shall take effect on 20 July 2012. By paragraph 127, paragraph 79B of appendix A is amended to read:

" no points will be awarded for appropriate salary if the salary referred to in paragraph 79 above is less than the appropriate rate for the job as stated in the codes of practice in Appendix J…."

9

Thus the relevant salary rates were moved from the codes of practice to form an appendix to the immigration rules.

Claimant's case

10

Counsel for the claimant, Mr Malik, formulated the claim in his skeleton argument as the following single issue:

" Whether it was open to the Secretary of State to determine the claimant's application made on 17 March 2012 by reference to paragraph 79B of Appendix A to the immigration rules, as amended, pursuant to CM 8423 with effect from 20 July 2012"

11

Mr Malik put his claim in 2 ways:

i) In the original grounds for judicial review (which were not drafted by Mr Malik) it was submitted that Odelola is wrongly decided when read in conjunction with the subsequent decision of the Supreme Court in Munir. In his skeleton. Mr Malik expressed this as a submission that Odelola is no longer good law as it cannot stand the Supreme Court judgements in Alvi and Munir.

ii) Alternatively, Mr Malik sought to distinguish Odelola from the present case and submitted that the "key difference" is the fact that in this case, the claimant's application had been decided before the amendment in the immigration rules whereas in Odelola the application was still pending. In this alternative submission. Mr Malik submitted that the general principle in Odelola, that the immigration rules apply when they say they take effect in the absence of a statement to the contrary, does not apply where there was a vested right at the time of the relevant amendment. He submitted that the making of the decision by the Secretary of State on 12 July 2012 created a vested right that any subsequent adjudication or reconsideration would be based on the same immigration rules.

Odelola no longer good law: Developed submissions of the claimant

12

In Odelola the appellant was a citizen of Nigeria and a doctor. She applied for leave to remain as a postgraduate doctor and under the rules then in force she was eligible for such leave because she had an overseas medical degree. However after she had made her application for leave to remain, changes were made to the immigration rules such that a person was only eligible for leave to remain as a postgraduate doctor if they had obtained a degree in medicine from a UK institution. Since the appellant could not satisfy the amended version of the rules she was refused leave to remain. The issue was whether the Secretary of State was entitled to determine the application by reference to the new rule. The House of Lords unanimously decided that she was.

13

Mr Malik submitted that the key submission made to the House of Lords on behalf of the appellant in Odelola was that immigration rules are subordinate legislation and therefore the presumption against retrospectivity under the Interpretation Act 1978 (the "1978 Act") and common law applied to them.

14

Mr Malik referred to the various dicta in the judgements where their Lordships rejected the submission that the immigration rules are subordinate legislation.

15

Mr Malik referred to the statement of Lord Hoffmann at paragraph 6, where he states that the immigration rules are not subordinate legislation, but " detailed statements by a Minister of the Crown as to how the Crown proposes to exercise its executive power to control immigration".

16

He also quoted Lord Brown at paragraph 34 where he states that the " core consideration in the case" was the fact that immigration rules are " essentially executive, not legislative" and concluded that the immigration rules

" indicate how it is proposed to exercise the prerogative power of immigration control".

17

He cited Lord Neuberger at paragraph 46, who stated that the immigration rules had existed long before the 1971 Act and this tended to support the view that the rules were non-statutory in origin. Mr Malik submits that on this premise, Lord Neuberger concluded that the presumption against retrospectivity has no application in relation to changes in the immigration rules.

18

Mr Malik submitted that in Alvi and Munir the Supreme Court expressly disapproved the premise on which Odelola was decided. He relied on the statement of Lord Hope at paragraph 32 in Alvi where Lord Hope observed that

" although I said… in Odelola that I agreed with Lord Brown's opinion, I think that it must be recognised that his statement as to the source of the power was wrong".

19

Mr Malik also relied on the statement of Lord Dyson at paragraph 36 in Munir that

" I cannot agree with Lord Brown that the immigration rules indicate how the Secretary of State proposes to exercise the prerogative power of immigration control."

20

Mr Malik submits that it follows from these dicta in A...

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2 cases
  • R Kumar v Secretary of State for the Home Department
    • United Kingdom
    • Court of Appeal (Civil Division)
    • 23 d2 Fevereiro d2 2016
    ...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). 7 There was a single ground, namely that it was unlawful to apply the new rules retrospectively. That ground was supported by three ar......
  • Upper Tribunal (Immigration and asylum chamber), 2015-02-04, IA/27602/2013
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    • Upper Tribunal (Immigration and Asylum Chamber)
    • 4 d3 Fevereiro d3 2015
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