R v Immigration appeal tribunal ex parte Nathwani

JurisdictionEngland & Wales
Judgment Date23 February 1979
Date23 February 1979
CourtQueen's Bench Division
TH/21176/77

Queen's Bench Division

Lord Widgery CJ, Eveleigh LJ, Stephen Brown J.

R
and
Immigration Appeal Tribunal Ex parte Dipak Kumar Nathwani

K. S. Nathan for the applicant.

Harry Woolf & Rodger Bell for the respondent.

Immigration rules Control after Entry Amendment of rules Application for variation/revocation of conditions of stay on marriage Operative rule at date of application amended before Secretary of State's decision on the application Refusal of application under the rule as amended (less favourable to applicant) Whether Secretary of State entitled to decide the application under the rule operating at the time of his decision Retrospectivity Whether principle against retrospective operation of statutory law applicable to immigration rules, these not being Statutory Instruments Whether any rights acquired by applicant under the rules operating at the time of his application HC 239, paras 26 & 26A Cmnd 5716, para 25 HC 80, para 4.

Appeal Leave to appeal to Tribunal Arguable point of law Whether application for revocation of conditions of stay on marriage was wrongly refused by Secretary of State under a rule which had superseded the rule operating at the date of application Tribunal wrongly of opinion that the later rule was inapplicable (because of principle against retrospective laws) Tribunal also of opinion that result of appeal would (on the facts found by the adjudicator) have been the same if the earlier rule had been applied subject to the general considerations governing applications for variation of conditions Tribunal entitled then to hold that the determination of the appeal did not depend on an arguable point of law Immigration Appeals (Procedure) Rules 1972, r 14(2)(a) HC 239 paras 26 & 26A Cmnd 5716, para 25 HC 80, para 4.

Practice and procedure Reference of cases for further consideration Application to Secretary of State by unsuccessful appellant that case be referred to adjudicator for consideration of evidence of witnesses present but not called by appellant at hearing before adjudicator Application refused by Secretary of State Reference of cases for further consideration a matter entirely within Secretary of State's discretion Refusal not open to challenge or review Immigration Act 1971, s 21(1)(a) & (b).

Marriage Settlement in United Kingdom Marriage of convenience Application by recently married man for removal of conditions on his leave to enter Change in immigration rules after application made and before decision of Secretary of State Refusal of application under the later rules on Secretary of State's finding that the marriage was one of convenience entered into in order to obtain settlement Refusal properly made under rule operating at time of Secretary of State's decision HC 80 para 4 Cmnd 5716, para 25 HC 239, paras 26, 26A.

N was a citizen of India. On 10 December 1976 he was given leave to enter the United Kingdom as a visitor for one month. On 1 January 1977 he married a British subject settled in this country. On 3 January, invoking para 25 of Cmnd 5716 which was then in operation1, he applied for a variation of his conditions of entry to enable him to remain permanently in the United Kingdom having regard to his marriage. On 27 May 1977 the Secretary of State refused N's application, stating that he had reason to believe that the marriage was one of convenience entered into primarily to obtain settlement here with no intention that the parties should live together permanently as man and wife. In his refusal the Secretary of State applied the provisions of para 26 and 26A of HC 239 which had come into operation on 22 March 1977 (superseding para 25 of Cmnd 5716)2.

The adjudicator to whom N appealed upheld the Secretary of State's decision under HC 239. N sought leave to appeal to the Tribunal. Refusing leave, the Tribunal stated that whilst the adjudicator had applied the wrong rulesbecause in the Tribunal's opinion HC 239 did not operate retro-spectivelythe result on the facts found would have been the same if the adjudicator had applied para 25 of Cmnd 5716 together with the general provisions of para 4 of HC 80 to which para 25 was subject; and in those circumstances the Tribunal held that there was no arguable point of law before it3.

On N's application to the Divisional Court for an Order of Certiorari to quash the Tribunal's determination and an Order of Mandamus requiring the Tribunal's President to grant leave to appeal from the adjudicator's determination.

Held (refusing Orders of Certiorari and Mandamus): (i) the Secretary of State acted correctly in considering N's application in the light of the rules which were in force (paras 26 and 26A of HC 239) at the time when he considered the matter and made his decision; and the adjudicator was correct in proceeding on that basis;

PerStephen Brown J: The rules not being statutes or statutory instruments which give rights to any person, there could be no question here of retrospectivity applying to the time of the application as distinct from the time of...

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10 cases
  • Odelola v Secretary of State for the Home Department
    • United Kingdom
    • Court of Appeal (Civil Division)
    • 10 April 2008
    ...in issue in our case was only directly in issue in one of those authorities, the Divisional Court decision in R v IAT ex p Nathwani [1979–80] Imm AR 9. Decisions of the Divisional Court only doubtfully bind the AIT, and do not bind this court. However, the AIT was right to pay respectful at......
  • Odelola v Secretary of State for the Home Department
    • United Kingdom
    • House of Lords
    • 20 May 2009
    ...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 di......
  • AA and Others (Highly skilled migrants: legitimate expectation)
    • United Kingdom
    • Asylum and Immigration Tribunal
    • 22 October 2007
    ...at the time the immigration decision was taken. That is the effect of the decision of the Divisional Court in R v IAT ex parte Nathwani [1979–80] Imm AR 9. The court held that the Secretary of State and the appellate body were correct to apply the rules in force at the date of the Secretary......
  • R BB (Algeria) v Secretary of State for the Home Department
    • United Kingdom
    • Court of Appeal (Civil Division)
    • 26 January 2016
    ...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 ......
  • Request a trial to view additional results

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