Dr Odelola, a Nigerian doctor, applied for leave to remain in the UK under immigration rules permitting overseas medical graduates. Before her application was determined, the rules changed to require UK qualifications. The House of Lords held the new rules applied to pending applications, dismissing her appeal.
Background
The appellant, Dr Odelola, was a Nigerian citizen and medical doctor who graduated with distinction from the University of Ibadan in 1988. She was a Fellow of the West African College of Surgeons and had held senior academic and clinical positions in Nigeria. She entered the UK on 5 September 2005 as a visitor for a clinical attachment, with entry clearance valid until 25 January 2006, intending to apply for leave to remain as a postgraduate doctor.
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On 17 January 2006, Dr Odelola submitted her application for leave to remain, completing the prescribed form and paying the prescribed fee of £335. At that time, the immigration rules in force (as amended by the Statement of Changes HC 299, in force from 19 July 2005) permitted a person with any medical qualification, including overseas qualifications, to apply for leave to remain as a postgraduate doctor, subject to satisfying other requirements.
However, on 30 March 2006, the Secretary of State laid before Parliament the Statement of Changes in Immigration Rules 2006 (HC 1016), which took effect on 3 April 2006. This statement contained no transitional provisions and amended the rules so that eligibility for leave to remain as a postgraduate doctor was confined to those with a recognised UK degree in medicine from a UK institution. Since Dr Odelola’s qualification was Nigerian, she could not satisfy the amended rules, and her application was refused on 26 April 2006.
The Issue(s)
The central question was whether an application for leave to remain under the immigration rules should be determined according to the rules in force at the date of the application or the rules in force at the date of the decision. The appellant argued that, in the absence of express transitional provisions, the presumption against retrospectivity — whether under section 16(1)(c) of the Interpretation Act 1978 or at common law — required that her application be judged under the rules as they stood when she applied.
The Interpretation Act 1978 Argument
The appellant contended that changes to the immigration rules constituted subordinate legislation repealing an earlier enactment, engaging section 16(1)(c) of the 1978 Act, which provides that a repeal does not, unless the contrary intention appears, affect any right, privilege, obligation or liability acquired, accrued or incurred under that enactment. Lord Neuberger rejected this argument, holding that the immigration rules were not “made … under [an] Act” within the meaning of section 21(1) of the 1978 Act. He noted that immigration rules predated their first statutory mention in the Immigration Appeals Act 1969, supporting their non-statutory origin.
The Common Law Presumption Against Retrospectivity
The appellant alternatively relied on the common law presumption against retrospectivity. Lord Neuberger accepted that this presumption could in principle apply to the immigration rules, given that they give rise to legal rights enforceable on appeal under sections 84 and 86 of the Nationality, Immigration and Asylum Act 2002. However, the question remained whether the appellant had any vested right at the time of the amendment.
The Court’s Reasoning
Nature of the Immigration Rules
Lord Hoffmann explained that the immigration rules were ministerial statements about how the Crown proposed to exercise its executive power over immigration. They did not constitute subordinate legislation.
Lord Brown similarly held:
the immigration rules are essentially executive, not legislative… the rules are essentially statements of policy.
This characterisation was central to the outcome. The rules, while having legal force in that decisions must be taken in accordance with them and are appealable if not, are fundamentally statements of administrative policy indicating how the Secretary of State proposes to exercise her discretion at any given time.
No Vested Right
The Court of Appeal’s reasoning, upheld by the House of Lords, was that the presumption against retrospectivity only applies where a vested right exists. The mere making of an application did not confer a vested right to have that application determined under the rules as they stood at the date of application. Lord Brown cited Longmore LJ’s reasoning that Dr Odelola had a right to have her application decided in accordance with the rules as properly interpreted. Filing it did not give her a vested right to have the earlier rules applied.
Lord Brown addressed the circularity argument head-on, drawing on Lord Rodger’s observations in Wilson v First County Trust Ltd (No 2) [2004] 1 AC 816 at paragraph 196:
The courts have tried, without conspicuous success, to define what is meant by ‘vested rights’ for this purpose. … 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.
Lord Brown drew a critical analogy with planning law, where applications are determined in accordance with policies in force at the date of decision, and distinguished the case from social security legislation (such as Chief Adjudication Officer v Maguire [1999] 1 WLR 1778), where the entitlement was to “money or other certain benefit” rather than a mere statement of policy as to how an administrative discretion would be exercised.
Textual Analysis
Lord Neuberger provided a detailed textual analysis. He noted that the 2006 Statement stated on its face that the changes “shall take effect on 3 April 2006” and all rule changes were expressed in terms naturally suggesting immediate, universal application. He also pointed to paragraph 4 of the 1994 Rules (HC 395), which expressly preserved existing applications under the previous rules, demonstrating that when it was intended that amendments should not apply to pending applications, this was made explicit. The absence of any such transitional provision in the 2006 Statement was therefore significant.
The Fairness Consideration
Applying Lord Mustill’s approach from L’Office Cherifien des Phosphates v Yamashita-Shinnihon Steamship Co Ltd [1994] 1 AC 486, Lord Neuberger acknowledged some unfairness in the result but concluded it was “relatively slight.” He observed:
The natural meaning of the language of the 2006 Statement, when read together with para 4 of the 1994 Rules, is, in my judgment, too strong to be rebutted by the comparatively slight, albeit real, unfairness which results in some cases (including that of the appellant) if the 2006 Statement does extend to current applications.
The Fee
Lords Hope, Scott and Brown expressed concern about the non-return of the £335 application fee. Lord Hope stated:
Fair dealing, which is the standard which any civilised country should aspire to, calls out for the fee to be repaid.
Lord Scott characterised the situation bluntly:
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.
Lord Brown stated that returning the fee would be “the only fair and rational course open to her.”
Practical Significance
The House of Lords interpreted the 2006 changes as applying to pending applications from the date they took effect. It considered the wording and function of the Immigration Rules and the absence of a provision preserving pending applications. The immigration rules are executive policy statements, not legislation, and the making of an application does not vest a right to have that application determined under the rules as they stood at the date of application. The presumption against retrospectivity under the Interpretation Act 1978 does not apply to the immigration rules because they are not subordinate legislation made under an Act. While the common law presumption against retrospectivity is capable of applying to the immigration rules in principle, it requires a vested right, which the mere making of an application does not create. The decision also highlighted the unfairness of retaining application fees in circumstances where rule changes render pending applications futile, with Lords Hope, Scott and Brown urging the Secretary of State to return Dr Odelola’s fee.
Verdict: The appeal was dismissed. The House of Lords held that the changes made by the Statement of Changes in Immigration Rules 2006 (HC 1016) applied to all pending applications, including that of Dr Odelola, and that her application was properly determined under the rules as they stood at the date of decision (26 April 2006), not the date of application (17 January 2006).
Source: Odelola v Secretary of State for the Home Department [2009] UKHL 25
Reported citations [2009] 1 WLR 1230; [2009] 3 All ER 1061; [2009] WLR 1230
