West Law Report

Immigration rule change

Posted in Immigration, Times Law Report, transitional provision of law by mrkooenglish on June 2, 2008

From The TimesJune 2, 2008

Immigration rule change
Court of Appeal

Published June 2, 2008

MO (Nigeria) v Secretary of State for Home Department

Where no transitional provisions existed, applications made under a previous regime of rules would be adjudged under the current replacement rules.

The Court of Appeal (Lord Justice Buxton, Lord Justice Longmore and Lord Justice Richards) so held in a reserved judgment on April 10, 2008, when dismissing the appeal of MO from the dismissal by an Asylum and Immigration Tribunal, on February 25, 2007, of his appeal against the refusal by the Secretary of State of the Home Department of his application to remain in the United Kingdom as a postgraduate doctor.

The application was made on January 17, 2006, under Immigration Rules HC 299 which were replaced, on April 3, 2006, by HC 1016 severely restricting the scope of overseas doctors staying as postgraduates.

LORD JUSTICE BUXTON said that here there were 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; in this case the rule-maker was the Home Secretary.

While some cases were shown in which the effects of changes in immigration rules had been expressly delayed, and the former regime retained in force during that period, it was impossible to demonstrate that it should be implied in cases where it was not expressly stated.

The immigration rules, odd though they were as a rule-book, clearly had some legal force. The secretary of state was formally constrained by them at any given time. Immigration judges had to apply them when hearing appeals.