Odelola v Secretary of State for the Home Department

The basic facts, and the issue that was before the AIT and which is now before this court on appeal, are succinctly set out in §§ 1-3 of the Determination of the AIT from which this appeal is brought, and on which I cannot improve:

1.

The appellant is a citizen of Nigeria. She came to the United Kingdom in September 2005 for a two months clinical attachment. She undertook a further clinical attachment and in January 2006 received confirmation that the basic surgical training she had received was, in the view of the UK’s Postgraduate Medical Education and Training Board, “acceptable”. She then applied for leave to remain as a postgraduate doctor. That application was made on 17 January 2006, at which time, pursuant to the provisions of the Statement of Changes in Immigration Rules HC 299, which came into effect on 19 July 2005, a person who had only an overseas medical degree was, subject to other requirements including registration with the General Medical Council, eligible to apply for an extension of leave as a postgraduate doctor or dentist. On 3 April 2006 there was a further radical restructuring of the Immigration Rules in this area, by Statement of Changes in Immigration Rules HC 1016, which came into force on that date. One of the changes was that in future a person could not have leave to enter or remain in the United Kingdom as a postgraduate doctor or dentist unless he

“has successfully completed and obtained a recognised UK degree in medicine or dentistry from either:

a UK publicly funded institution or further or higher education, or

a UK bona fide private education institution which maintains satisfactory records of enrolment and attendance.”

2.

Under the Rules as amended the appellant has no claim to an extension of leave, because she has no UK degree. The Secretary of State made his decision on the appellant’s application on 26 April 2006. He refused it. The refusal is in short form, but it is clear that it was motivated by the Rules [as] they were on the date he made his decision.

3.

The appellant appealed against the refusal to an Immigration Judge, who held, following HS [2005] UKAIT 00169, a decision of this Tribunal, that the Secretary of State was right to apply the Rules as they were at the time of his decision and that the appellant had no right to have her application decided according to the Rules as they were at the date the application was made. The appellant sought and obtained an Order for Reconsideration [by the AIT].

The appellant asserts that the Secretary of State had no option in law other than to decide her case according to the Immigration Rules as they stood on the date of her application. She did not put that claim on the basis of any legitimate expectation; indeed, in the skeleton before this court her advisers were critical of the AIT for even referring to the concept of legitimate expectation, when it should have been clear to them that that was no part of the appellant’s case. Although the matter was not explored before us, there were plainly two reasons why the appellant took that position. First, as a matter of fact, there was nothing to ground any such expectation. The Secretary of State had neither given an express promise that she would decide applications on the basis of the Immigration Rules as they stood at the date of the application, nor had followed any regular practice to that effect: indeed counsel for the Secretary of State told us, without contradiction, that it had been the Secretary of State’s regular practice to act as she had done in the present case. Second, there was a strong forensic reason why the appellant had to avoid the language of legitimate expectation. That jurisprudence lives in the world of, and attracts the rules of, administrative law. Once the case is seen as one of administration, the appellant is faced with the principle that administrative policy, such as expressed in HC 299, can change. As Lord Diplock put it in Hughes v DHSS [1985] 1 AC 776 at p 788A:

Administrative policies may change with changing circumstances, including changes in the political complexion of governments. The liberty to make such changes is something that is inherent in our constitutional form of government.

The appellant therefore had to assert that in deciding her case according to HC 1016 the Secretary of State had not made an error of an administrative law nature, but rather had infringed a right more akin to a right in private law, that vested in the appellant at the moment at which she made her application, and of which she could not thereafter be deprived. No such right is to be found in the Immigration Rules themselves. The case accordingly had to be based on the assertion that general principles of substantive, not administrative, law prevented the Secretary of State from acting inconsistently with the appellant’s right to have the case decided on the rules as they stood at the date of the application, however much those rules might have changed between the date of the application and the date of the decision. Those principles were to be found in the Interpretation Act 1978 [the 1978 Act], reinforced by consistent assumptions of the common law.

It will be seen that this was a striking claim. The appellant had no expectation that her case would be decided according to HC 299, but she had a right that it should be so decided. The only explanation of that paradox would be that there has been a consistent pattern of unlawful behaviour on the part of the Secretary of State, albeit not previously discerned by lawyers working in this field; and indeed Sir Henry Brooke, who granted permission for this appeal to be brought, was told that the point applied generally across the whole of the Immigration Rules, and was therefore capable of affecting a very large number of cases. This appeal must therefore be examined in some detail.

I proceed in the following order. I first set out the way in which the appellant puts her case under the 1978 Act. That exposition makes clear that crucial to the argument is the juristic status of the Immigration Rules. I therefore examine the background to those rules and the considerable weight of authoritative comment on them, which makes it clear that the appellant’s case is unsustainable. That conclusion is not, however, based only on authority, but springs also from consideration of the terms and effect in law of the Immigration Rules.

The appellant pointed to section 16(1)(c) of the 1978 Act, which provides that

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

That provision was said to apply in the case of rights acquired under the Immigration Rules because section 23 of the 1978 Act applies to “subordinate legislation” as to Acts of Parliament, and by section 21 subordinate legislation means

Orders in Council, orders, rules, regulations, schemes, warrants, byelaws and other instruments made….under any Act

The Immigration Rules had been “made under” an Act because their genesis was in section 3(2) of the Immigration Act 1971 [the 1971 Act], which provides that

The Secretary of State shall from time to time…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….

Second, and in support of what the appellant said was the clear meaning of the 1978 Act as applied to her case, the common law assumption was that, in the absence of transitional provisions (and none such were included in Statement of Change HC 1016), an enactment was not intended to have retrospective effect. That principle should either be applied directly, or be used to reinforce the construction that the appellant sought to place on the 1978 Act.

It cannot be gainsaid that, granted its premises, the appellant’s argument has considerable logical force. The difficulty lies in those premises. Crucial to the argument is the claim that the Immigration Rules are subordinate legislation as that concept is understood in the 1978 Act, with the result that the right that accrued to the appellant when she made her application remained vested in her thereafter by the operation of section 16(1)(c). A first difficulty about that claim is the nature of the “right” that the appellant acquired when she made her application. I will however postpone consideration of that question until we have explored the more general claim, that the Immigration Rules are indeed subordinate legislation as understood in the 1978 Act.

It is a truism in international law that a state has the right to control the access to its borders and stay within them of anyone who is not a resortissant of that state. That remains the position of the United Kingdom, subject only to treaty obligations limiting that right. The most obvious examples of such restrictions are under the ECHR and the EU treaty, neither of which applies to the case of Dr Odelola. The most recent statement of the basic rule is to be found in the judgment of the ECtHR in Saadi v Italy (application 37201/96, judgment of 28 February 2008):

It is the Court's settled case-law that as a matter of well-established international law, and subject to their treaty obligations, including those arising from the Convention, Contracting States have the right to control the entry, residence and removal of aliens (see, among many other authorities, Abdulaziz, Cabales and Balkandali v. the United Kingdom, judgment of 28 May 1985, Series A no. 94, § 67, and Boujlifa v. France, judgment of 21 October 1997, Reports of Judgments and Decisions 1997-VI, § 42).

Consistently with that principle, the 1971 Act is based on the central concept of right of abode, as extensively defined in section 2 of the Act. Those with right of abode have a right to enter and stay; those without right of abode by section 1(2)

may live, work or settle in the United Kingdom by permission and subject to such regulation and control of their entry into, stay in and departure from the United Kingdom as is imposed by this Act.

The 1971 Act therefore lays down certain specific conditions that may be imposed on entry or stay, which have been added to by amendments of the Act in subsequent years: for instance, the provision in section 3(1)(c), substituted by the Asylum and Immigration Act 1996, that leave to remain either for a limited or an indefinite period “may” (not must) be given subject to stated conditions, for instance that the person can maintain himself and his dependents without recourse to public funds.

The whole emphasis is however to give the Secretary of State a significant amount of latitude in granting the permissions that the Act envisages. That is reflected in section 3(2), already set out, which requires the Secretary of State to lay before Parliament statements of 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: the latter, as we have seen, being all persons who do not have right of abode. Parliament retains control, not by any power to amend the Immigration Rules, but by the possibility, envisaged by the second paragraph of section 3(2), of disapproving the whole of whatever rules are placed before it and to require their restatement. As Geoffrey Lane LJ put it in R v Home Secretary ex p Hosenball [1977] 1 WLR 766 at p 785G:

if Parliament disapproves of the rules they are not thereby abrogated: it merely becomes necessary for the Secretary of State to devise such fresh rules as appear to him to be required in the circumstances.

So the terms in which the Immigration Rules will be formulated will always be those of the Secretary of State.

The Immigration Rules are therefore not dictated to the Secretary of State by Parliament, but formulated by him to indicate how he is going to administer the very wide power of judgement conferred on him in deciding whether and on what terms people without right of abode may enter and remain in the United Kingdom. Those qualities have led a series of judges of the highest authority to doubt whether the Immigration Rules can be regarded as legislation at all, at least in the conventional sense. The point 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 attention to that case, as I do also. And in all of the other cases the court was concerned, one way or another, with the issue of principle now before us, of the status of the Immigration Rules as legislation. It will be convenient to set out the observations on that issue in chronological order. The continuing unease that they reveal as to the status of the Immigration Rules is striking:

Mr Drabble sought to doubt the modern relevance of the above statements, and in particular that of Lord Bridge in Bakhtaur Singh, by saying that they were made at a time when the Immigration Rules were extremely general, possibly even aspirational, in their terms, and therefore plainly an administrative instrument rather than legislation. They were quite different from the modern detailed, tightly drawn and circumstantial rules, as exampled by the rule of which Dr Odelola had fallen foul. There are at least three difficulties about that argument:

There is therefore a stream of highly authoritative commentary warning us against treating the Immigration Rules as delegated legislation of the kind that falls within the terms of the 1978 Act. That consistent analysis must be fatal to the appellant’s case. However, and additionally, there are a number of other considerations that point in the same direction, which I deal with in the next sections of this judgment.

As Richards LJ pointed out in the course of argument, the draftsman of section 3(2) could have achieved his purpose without using the word “rules” at all. That purpose can be divined as having been to require the Secretary of State to exercise his powers under the 1971 Act on an open and principled basis, and to provide Parliament with a (residual) check on how the Secretary of State was going about his task. Both of those objectives are achieved in section 3(2) by requiring a public statement of his policy by the Secretary of State, which Parliament can require him to review. But the section would have been just as effective if it had been formulated in terms, for instance, of a statement of the principles according to which the Home Secretary intends for the time being to exercise the statutory and prerogative powers which govern admission to the United Kingdom [the formulation of Sedley LJ in BAPIO Action Group]; or of a detailed statement of the practice to be followed in the administration of the Act. Neither of those formulations needs to talk about rules.

Had the 1971 Act been drafted in either of those, or of other available, forms, at least the psychological force of the appellant’s argument would be somewhat diminished. But the point is not merely a verbal one. One of the reasons why the Immigration Rules have been seen by judges as being rules of a special sort is that their structure and origin is different from what one expects to find in a body of rules. The usual origin of rules is that they are made by a rule-maker to control the behaviour of others, the subjects of the rules. But the Immigration Rules are made by the same person, the Secretary of State, as has thereafter to act according to their requirements. One can of course in ordinary discourse speak of making rules for oneself, but it would be very unusual for such “rules” to create rights in others, as the Immigration Rules are said to do.

This structural difficulty for the appellant’s argument is reinforced by the attempt to apply to this case a passage from Mr Bennion’s Statutory Interpretation, which Mr Drabble relied on as demonstrating the force of the common law argument against retrospectivity, irrespective of what the 1978 Act said:

Where an Act contains substantive, amending or repealing enactments, it commonly also includes transitional provisions which regulate the coming into operation of those enactments and modify their effect during the period of transition. Where the Act fails to include such provisions expressly, the court is required to draw such inferences as to the intended transitional arrangements as, in the light of interpretative criteria, it considers Parliament to have intended.

Here, there are no “transitional” provisions, in the sense that HC 1016 came into effect in total replacement of HC 299 on the date on which it was made. If the Immigration Rules were indeed a statute, made by Parliament, or delegated legislation made under Parliament’s authority, then scrutiny of Parliament’s presumed intention in not making any transitional provisions would indeed be called for. But in our case the rule-maker is the Secretary of State himself. While we were shown some cases in which the effects of changes in the Immigration Rules have been expressly delayed, and the former regime retained in force during that period, it was impossible to demonstrate such a practice on the part of the Secretary of State that it must be implied even in cases where it was not expressly stated. So if we ask the question of what the rule-maker must have intended, the only reply is that she intended what she says in these proceedings that she regularly intends and practises, to apply on any given date the rule as it stands on that date.

The Immigration Rules, odd though they are as a rule-book, clearly have some legal force. The Secretary of State is formally constrained by them at any given time. Immigration Judges have to apply them when hearing appeals from decisions of the Secretary of State.

Lord Denning MR explained the effect of the Immigration Rules in Hosenball, as did Sedley LJ in BAPIO Action Group, by pointing to that obligation of immigration judges, when hearing appeals from decisions by the Secretary of State, to allow the appeal if

the decision or action against which the appeal is brought was not in accordance with the law or with any immigration rules applicable to the case [section 19 of the 1971 Act, referred to in Hosenball];

or if

a decision against which the appeal is brought was not in accordance with the law (including immigration rules) [section 83(3)(a) of the Nationality, Immigration and Asylum Act 2002, referred to by inference in BAPIO Action Group].

Both of those judges regarded that function of the Immigration Rules, important as it is, as not turning the Immigration Rules into rules “of law”. By that, I would respectfully think that they appreciated that the effect of the appellate structure is to require the Secretary of State, in classic public law terms, to act in accordance with his declared policy for the time being. But that is the limit of the Secretary of State’s obligation. There is no inhibition, save for the possibility of Parliamentary disapproval, on his changing the rules; and the subject can only expect his case to be dealt with by the Secretary of State and by the tribunal on the basis of the current rules. Since what the immigration judge enforces when he applies the Immigration Rules is only an obligation of consistency such as is found in public law, Dr Odelola’s only recourse in avoiding the effect of changes in the rules would be to the doctrine of legitimate expectation. But for reasons that we have already explored, that is not her case.

Some weight was sought to be placed on the formulation in section 83(3)(a) of the 2002 Act, speaking of “in accordance with the law (including immigration rules)”. The earlier legislation had referred to the law or immigration rules. This change of arrangement cannot make any difference to the status of the Immigration Rules. There is no doubt that the Immigration Rules are in the sense discussed above “law”, but that does not make them delegated legislation: as the draftsman of section 83(3)(a) seems to have appreciated, by thinking that a general reference to “law” would not, or might not, be read as necessarily extending to the Immigration Rules without further express statement.

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.

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. There is no reason at all to make that assumption, and none was suggested to us. That is a further respect in which Dr Odelola’s claim is misconceived. For that and all the other reasons given above I would dismiss this appeal.

I agree with Buxton LJ that the Immigration Rules are not delegated or subordinate legislation or “rules” to which the Interpretation Act 1978 applies.

We are not, therefore, trammelled or assisted by canons of statutory construction. But the question of construction still remains. In the absence of any transitional provisions in the new version, do they take effect on 3^rd April 2006 in all cases or only in cases where the relevant application has been made after 3^rd April 2006?

To my mind, as a matter of construction, there can only be one answer to that question. The new version says that they take effect on 3^rd April and so they must. As Rule 4 of HC 395 shows, transitional provisions can be included if thought to be desirable. In this case they were not included.

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.

If the true position is that the Rules are statements of executive policy at any particular time, it would be inappropriate to say that any applicant has a vested right to rely on such policy statement. Policy statements change as policy changes. There can, therefore, be no question about any common law rule against retrospectivity being applicable, because that rule only applies to vested rights, see Attorney-General v Vernazza [1960] A.C. 965 and Yew Bon Tew v Kenderaan [1983] 1 A.C. 553.

It is now generally accepted that rules in the non-statutory sense e.g. the rules of an arbitration body do not give rise to vested rights, see Bunge v Kruse [1979] 1 Lloyd’s Rep 279 per Brandon J and Cremer v Granaria [1981] 2 Lloyd’s Rep 583 per Robert Goff J. That is, no doubt, because they are primarily procedural. The Immigration Rules are, of course, not procedural but neither do they confer a vested right not to be prejudiced by a change of executive policy. It is for the policy maker to decide whether any change should be accompanied by transitional provisions and, in this case, he did not do so.

I agree with both judgments.