The House of Lords has confirmed that where immigration rules change between the time at which someone makes an application for leave to remain and the time at which that application is decided on behalf of the Secretary of State - the application will be decided on the basis of the changed rule.
The Appellant in Modupe Abiola Odelola v Secretary of State for the Home Department [2009] UKHL 25 (20-5-2009) was a consultant surgeon from Nigeria. She originally came to the UK in 2005 as a visitor with a two month clinical attachment. The Immigration Rules which were then in force provided that someone with an overseas medical degree could apply for leave to remain as a post graduate doctor, and in January of 2006 Dr. Odelola made such an application.
Her application was still outstanding when the Immigration Rules were changed in April of 2006. After the change you could only apply for leave to remain as a postgraduate doctor if you had a recognized UK degree in medicine from a UK college. So Dr. Odelola's application was refused.
In her appeal against this decision Dr. Odelola relied upon the legal principle that laws are presumed not to apply retrospectively. She said that on the basis of this principle the new Immigration Rules couldn't apply to applications which were pending when they came into force - and that her application should therefore have been decided in accordance with the Rules which were in force when she made her application. This principle was expressed in the Interpretation Act 1978 and also in "common law". The presumption could only not operate if the rules (or the legislation which permitted them to be made) clearly said that they would operate retrospectively.
In the House of Lords most of their Lordships agreed with Lord Brown of Eaton-Under-Heywood's opinion to the effect that the presumption against retrospectivity- whether it came from the Interpretation Act or from the common law only applied in the case of "vested rights". The question was therefore whether the Immigration Rules could create vested rights. Lord Brown concluded that they did not - because the rules were not rules of law but simply statements of the Secretary of State's administrative policy. Policies change and so therefore do the Immigration Rules. The Immigration Rules were less like social security law than they were like planning law, where all applications were decided in accordance with whatever policies were in force when the applications were decided. Lord Neuberger decided that the Rules could be affected by the presumption against retrospectivity - but only where they had created an actual right at the time they were amended. Dr. Odelola had had a right to have her application decided, but not a right to have it decided in accordance with the unchanged Rule. There had been unfairness caused to Dr. Odelola - but it had been relatively slight.
This decision jars with the Highly Skilled Migrant Programme ("HSMP") decisions recently and last year - but that only goes to show the particular nature of the promise made to people who came under HSMP - effectively this was "make the UK your main home and you'll be on a route to settlement here, regardless of any changes we make to the Rules".
Having said that - it's not difficult to think of examples where the unfairness caused to someone by a change in the rules gets close to that caused to the HSMP migrants and their families. As things stand until relatively recently people who were granted leave to enter or remain in the UK for employment could apply for indefinite leave to remain after four years. Then the rules were changed to make the qualifying period five years. Will this judgment make the Home Office confident that they can change the rules again - say to six years - and send home everyone who has completed five years' continuous residence?
There have been many changes in the Immigration Rules over the last few years as the points based system has been implemented. In most cases the Rules have provided transitional provisions so that people already in the UK don't lose their entitlement to apply for further leave to remain. It must be said that this judgment will cause people in such circumstances to feel less rather than more secure.