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Session 2008 - 09 Publications on the Internet Judgments PDF Print Version 
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| Judgments - Odelola (FC) (Appellant) v Secretary of State for the Home Department (Respondent)
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HOUSE OF LORDS SESSION 2008-09 [2009] UKHL 25 on appeal from:[2008]EWCA Civ 308
OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT IN THE CAUSE Odelola (FC) (Appellant) v Secretary of State for the Home Department (Respondent) Appellate Committee Lord Hope of Craighead Lord Hoffmann Lord Scott of Foscote Lord Brown of Eaton-under-Heywood Lord Neuberger of Abbotsbury Counsel Appellant: Richard Drabble QC Tim Buley (Instructed by Duncan Lewis and Co) Respondent: Elisabeth Laing QC Sam Grodzinski (Instructed by Treasury Solicitors) Hearing date : 17 MARCH 2009 ON WEDNESDAY 20 MAY 2009 HOUSE OF LORDS OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT IN THE CAUSE Odelola (FC) (Appellant) v Secretary of State for the Home Department (Respondent) [2009] UKHL 25 LORD HOPE OF CRAIGHEAD My Lords, 1. 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. 2. 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. LORD HOFFMANN My Lords, 3. 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. 4. 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. 5. 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. 6. 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. 7. 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). 8. I therefore think that the Court of Appeal decision was right and I would dismiss the appeal. LORD SCOTT OF FOSCOTE My Lords, 9. 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. 10. 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. 11. 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. LORD BROWN OF EATON-UNDER-HEYWOOD My Lords, 12. 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. 13. 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. 14. 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. 15. 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. 16. 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 the administration of this Act for regulating the entry into and stay in the United Kingdom of persons not having the right of abode” and makes some general provision as to their content. 17. Section 3(2) provides: “The Secretary of State shall from time to time (and as soon as may be) 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, . . . If a statement laid before either House of Parliament under this subsection is disapproved by a resolution of that House passed within the period of 40 days beginning with the date of laying . . . , then the Secretary of State shall as soon as may be make such changes or further changes in the rules as appear to him to be required in the circumstances, so that the statement of those changes be laid before Parliament at latest by the end of the period of 40 days beginning with the date of the resolution . . .” Section 33(1) of the 1971 Act provides that, for the purposes of the Act, except in so far as the context otherwise requires, “immigration rules” means “the rules for the time being laid down as mentioned in section 3(2) above". 18. The 1971 Act also, in section 19, made provision for appeals to adjudicators if a decision “was not in accordance with the law or with any immigration rules applicable to the case". Now, however, appeals are dealt with by section 86(3) of the Nationality, Immigration and Asylum Act 2002 which so far as material provides that the tribunal “must allow the appeal insofar as it thinks that (a) a decision against which the appeal is brought . . . was not in accordance with the law (including immigration rules)". 19. The facts of this case can be shortly stated. The appellant is a citizen of Nigeria. She is a medical doctor, having graduated with distinction from the University of Ibadan in July 1988. She underwent specialist training in surgery in Nigeria and is a Fellow of the West African College of Surgeons. Until leaving Nigeria in September 2005 she was a consultant surgeon and senior lecturer at the College of Medicine, University of Lagos, and Lagos University Teaching Hospital. 20. On 5 September 2005 the appellant came to the UK as a visitor for a two months clinical attachment. She had entry clearance valid from 25 July 2005 to 25 January 2006. She intended to apply, when she had completed the necessary clinical attachments, for a variation of her leave so as to obtain leave to remain as a postgraduate doctor. The rules then in force—Statement of Changes in Immigration Rules HC299 which came into force on 19 July 2005—provided that a person with an overseas medical degree would (subject to certain other requirements including registration with the General Medical Council) be eligible for such leave. 21. After undertaking a further clinical attachment, it was confirmed to the appellant that the basic surgical training she had received was, in the view of the UK’s Postgraduate Medical Education and Training Board, “acceptable” and on 17 January 2006 she made her application for leave to remain as a postgraduate doctor. She completed the prescribed form and enclosed the prescribed fee, in her case £335. 22. On 30 March 2006 the respondent laid before Parliament Statement of Changes in Immigration Rules HC1016 which was stated to take effect on 3 April 2006. HC1016 contained no transitional provisions. One of the changes made was that a person was only to be eligible for leave to remain as a postgraduate doctor if they had obtained “a recognised UK degree in medicine” from either “a UK publicly funded institution” or “a UK bona fide private education institution which maintains satisfactory records of enrolment and attendance". Since the appellant’s medical degree was obtained in Nigeria, she could not satisfy the amended version of the rules and so, by the respondent’s decision of 26 April 2006, was refused leave to remain. 23. The appellant’s appeal against this decision failed, first before Immigration Judge Campbell on 12 June 2006, next, on reconsideration by a panel of the Asylum and Immigration Tribunal chaired by the Deputy President, Mr Ockelton, on 5 February 2007, and finally before the Court of Appeal (Buxton, Longmore and Richards LLJ) ([2008] EWCA Civ 308) on 10 April 2008. Leave to appeal was given by your Lordships’ House on 27 October 2008. 24. The appellant’s initial appeal to Immigration Judge Campbell was dismissed on the basis that: “In HS [2005] UK AIT 00169, the tribunal held that in the absence of a specific transitional or other saving provision, an application is to be assessed under the immigration rules as at the date of decision and not the date of application.” On reconsideration of the appeal by the tribunal, it was recognised that HS was not a starred decision and carried no particular authority. In addition, the tribunal took note of a passage in Macdonald’s Immigration Law and Practice (Butterworths, 2005) 6th edition, para 1.50: “Where changes are made to the immigration rules, it is sometimes difficult to establish whether the old or new rules apply. The transitional provisions in the current rules, HC395, provide that applications extant prior to their coming into force will be decided under the previous rules. We suggest that the same logic should apply with regard to amendments, so that applications made before the amendments take effect should be dealt with under the unamended rules. Any other rule penalises the applicant for Home Office delays.” (HC 395 had been laid before Parliament on 23 May 1994. Paragraph 4 read: “These rules come into effect on 1 October 1994 and will apply to all decisions taken on or after that date save that any application made before 1 October 1994 for entry clearance, leave to enter or remain or variation of leave to enter or remain shall be decided under the provisions of HC 251, as amended, as if these Rules had not been made.”) 25. The tribunal recorded that the question raised was “being raised very frequently” before them, perhaps because of the view expressed in Macdonald, or perhaps simply because changes in the immigration rules were now so frequent (there having been 31 such changes between 31 May 2003 and 11 December 2006). In dismissing the appeal, the tribunal referred to the decision of the Divisional Court (Lord Widgery CJ, Eveleigh LJ and Stephen Brown J) in R v Immigration Appeal Tribunal, Ex p Nathwani [1979-80] Imm AR 9, as it happens the only authority directly in point, where Stephen Brown J, giving the first judgment, said this, at p 13: “It seems to me that, bearing in mind that the rules are not statutes or statutory instruments which give rights to any person, there can be no question here of retrospectivity applying certainly to the time of the application as distinct from the time of the Secretary of State’s consideration of the application and his decision. This is a matter, in my judgment, which is so abundantly clear that no arguable point of law can arise upon it.” 26. The tribunal then considered whether it was still appropriate, nearly 30 years on, to take the same view of the rules. In holding that it was, the tribunal pointed out that section 3(2) of the 1971 Act has never been amended and concluded, at para 14: “Although they can have no effect if the legislature disapproves of them, the immigration rules are essentially executive, not legislative. Section 3(2) of the 1971 Act sets down the procedure for making what are essentially statements of policy; it does not change those statements from policy into legislation. As executive rules or policy they are in our view not amenable to interpretation as though they were statutes or statutory instruments. The Secretary of State is entitled and bound to make and operate the United Kingdom’s immigration policy and he is entitled to make decisions about particular cases by reference to the policy in operation at the time the decision is made.” 27. In the Court of Appeal Buxton LJ’s leading judgment collected together the many dicta down the years which, in a variety of contexts, have addressed the precise status of the immigration rules—Nathwani alone, as I have said, being directly in point. It would seem to me unnecessary and unhelpful to repeat that exercise here. To ask whether the rules are strictly rules of law is ultimately a barren exercise. Obviously, as Buxton LJ recognised, when they apply the rules have legal force and decisions are appealable if not taken in accordance with them. But that does not answer the question as to which rules apply to any given decision. 28. The essential reasoning of the Court of Appeal is to be found in paragraphs 21 and 22 of Buxton LJ’s judgment as follows: “21. Dr Odelola’s case was, and had to be, that by making her application on 17 January 2006 she acquired not an expectation but a right that that application would be adjudicated upon according to the rules that obtained on that date. That being a right in law, it was not defeasible upon a change in the rules between the date of application and the date of adjudication. But there is nothing in the immigration rules that creates a right in those terms. As her argument demonstrated, the right that Dr Odelola asserted had to be constructed from rules of the general law, separate from the immigration rules. And that general law, expressed through the 1978 Act, would only in any event avail Dr Odelola if the right created when she made her application was a right to have her case decided according to the rules as they existed at the date of the application, rather than a right to have her case decided according to the rules for the time being: because preservation of the latter right by the operation of section 16(1)(c) would still lead to her case being decided on the basis of HC 1016. 22. Accordingly, even if section 16(1)(c) could be applied to this case, it can only achieve the effect that Dr Odelola seeks if we assume in her favour the very thing that she has to establish, that the making of an application created a right thereafter to have her case determined according to the rules as they stood on that day.” That reasoning was echoed by Longmore LJ at paras 25 and 26: “25. . . . The new version [of the rules] says that they take effect on 3 April and so they must. As rule 4 of HC395 shows, transitional provisions can be included if thought to be desirable. In this case they were not included. 26. If that meant that Dr Odelola had been deprived of a vested right this might be a troubling conclusion. But Dr Odelola had no vested right to indefinite leave to remain as at the date she made her application for that leave. Her right was to have her application considered according to the rules on their proper construction—no less but no more. So one is just thrown back to the question of construction.” Richards LJ agreed with both judgments. 29. In short, the Court of Appeal’s approach was this. The presumption against retrospectivity, whether it is to be found in section 16(1)(c) of the 1978 Act or in the common law, applies only in the case of vested rights. To say that the presumption applies in the case of the immigration rules is to beg the very question at issue. Given, as the appellant accepted, that there was no question of her being able to invoke the principle of legitimate expectation and that the rules could be changed at any time in such a way as to deprive a current applicant of any entitlement to the leave being sought, it could not sensibly be said that, prior to a change in the rules, any right or privilege had already accrued or been acquired. 30. Mr Drabble strongly criticises this reasoning. It is not the appellant’s argument which is circular, he submits, but rather the Court of Appeal’s approach to it which is misconceived. Whenever the presumption against retrospectivity is raised, ex-hypothesi the right which is being asserted is one capable of being taken away by subsequent amendment of the provisions on which the right is based. If it were not capable of repeal, there would be no need to consider the presumption. It is in that context that the presumption, which is a rule of interpretation only, operates to preserve the right in question. To use the possibility of repeal itself as a reason for saying that the presumption does not apply would mean that the presumption would be defeated in precisely those cases in which it might be relevant, and so render it of no effect. 31. To my mind the whole debate has been bedevilled by a failure to recognise the difficulties inherent in the presumption itself, difficulties explored in the House, principally by Lord Rodger of Earlsferry, in Wilson v First County Trust Ltd (No. 2) [2004] 1 AC 816. As Lord Rodger pointed out at para 196: “The presumption is against legislation impairing rights that are described as ‘vested'. The courts have tried, without conspicuous success, to define what is meant by ‘vested rights’ for this purpose. . . . It is not easy to reconcile all the decisions. This lends weight to the criticism that the reasoning in them is essentially circular: the courts have tended to attach the somewhat woolly label ‘vested’ to those rights which they conclude should be protected from the effect of the new legislation. If that is indeed so, then it is perhaps only to be expected since, as Lord Mustill observed in L'Office Cherifien des Phosphates v Yamashita-Shinnihon Steamship Co Ltd [1994] 1 AC 486, 525A, the basis of any presumption in this area of the law ‘is no more than simple fairness, which ought to be the basis of every general rule'.” |
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