Clare Moulder :
- This is an application for judicial review against the decision of the defendant to refuse the claimant further leave to remain pursuant to the Tier 2 points-based rules on 27 September 2012. Permission was refused on 4 January 2013 by order of Mr Timothy Brennan QC, but was granted by order of His Honour Judge Anthony Thornton QC on 17 May 2013, following an oral hearing on the renewed application for permission to apply for judicial review.
Chronology
- The essential facts are as follows:
i) On 16 December 2008 the claimant was granted entry clearance as a work permit holder as a Tandoori chef for the Chahal Sweet Centre and Tandoori restaurant. The claimant made an application for further leave to remain in December 2011. This was rejected and in March 2012 the claimant submitted a Tier 2 (General) Migrant application for further leave to remain.
ii) On 12 July 2012 the defendant refused the claimant's application because the claimant's salary was less than the appropriate rate as stated in the UKBA published guidance.
iii) On 20 July 2012 paragraph 79B of Appendix A to the immigration rules was amended by CM 8423.
iv) On 23 July 2012 the claimant's solicitors served a pre-action letter for judicial review relying on the decision of the Supreme Court in Alvi v Secretary of State for the Home Department [2012] UKSC 33.
v) On 19 September 2012 the defendant withdrew its earlier decision (179).
vi) On 27 September 2012 the defendant refused the claimant's application on virtually the same grounds as the earlier decision in July 2012 in that the UKBA previous codes were now incorporated into the immigration rules as of 20 July 2012 (180).
- The judicial review claim form was lodged on 7 November 2012.
Grounds
- The single ground set out in the statement of grounds attached to the judicial review claim form is that it was unlawful for the defendant to apply the immigration rules retrospectively. It is submitted for the claimant that if the House of Lords decision in Odelola v Secretary of State for the Home Department [2009] UKHL 25 is read in conjunction with the Supreme Court decision in Munir v Secretary of State for the Home Department [2012] UKSC 32 it is arguable that Odelola is wrongly decided.
Legislative framework
- The immigration rules are made by the Secretary of State and approved by Parliament pursuant to section 3(2) of the Immigration Act 1971. Applications for leave to remain as a Tier 2 (General) Migrant are governed by paragraph 245HD of the immigration rules.
- At the time of the original decision of 12 July 2012 paragraph 245HD provided as follows: –
"to qualify for leave to remain as a Tier 2 (General) Migrant… under this rule, an applicant must meet the requirements listed below. If the applicant meets these requirements leave to remain will be granted. If the applicant does not meet these requirements, the application will be refused.
Requirements:
the applicant must not fall for refusal under the general grounds for refusal, and must not be an illegal entrant.
The applicant must have, or have last been granted, entry clearance, leave to enter or leave to remain:
…..
(xv) as a qualifying work permit holder
….
if applying as a Tier 2 (General) Migrant, the applicant must have a minimum of 50 points under paragraphs 76 to 79D of appendix A"
- Paragraphs 76 to 79D at the time of the initial decision provided as follows:
"76 An applicant applying for entry or leave to remain as a Tier 2 (General) Migrant must score 50 points for attributes
76A Available points for entry clearance or leave to remain as shown in table 11A
79. The points awarded for appropriate salary will be based on the applicant's gross annual salary to be paid by the sponsor……..
79B no points will be awarded for appropriate salary if the salary referred to in paragraph 79 above is less than the appropriate rate for the job as stated in the codes of practice for Tier 2 sponsors published by the UK border agency,…"
- CM 8423 Statement of Changes in Immigration Rules under the heading "Implementation" states the changes set out in the statement shall take effect on 20 July 2012. By paragraph 127, paragraph 79B of appendix A is amended to read:
"no points will be awarded for appropriate salary if the salary referred to in paragraph 79 above is less than the appropriate rate for the job as stated in the codes of practice in Appendix J…."
- Thus the relevant salary rates were moved from the codes of practice to form an appendix to the immigration rules.
Claimant's case
- Counsel for the claimant, Mr Malik, formulated the claim in his skeleton argument as the following single issue:
"Whether it was open to the Secretary of State to determine the claimant's application made on 17 March 2012 by reference to paragraph 79B of Appendix A to the immigration rules, as amended, pursuant to CM 8423 with effect from 20 July 2012"
- Mr Malik put his claim in 2 ways:
i) In the original grounds for judicial review (which were not drafted by Mr Malik) it was submitted that Odelola is wrongly decided when read in conjunction with the subsequent decision of the Supreme Court in Munir. In his skeleton. Mr Malik expressed this as a submission that Odelola is no longer good law as it cannot stand the Supreme Court judgements in Alvi and Munir.
ii) Alternatively, Mr Malik sought to distinguish Odelola from the present case and submitted that the "key difference" is the fact that in this case, the claimant's application had been decided before the amendment in the immigration rules whereas in Odelola the application was still pending. In this alternative submission. Mr Malik submitted that the general principle in Odelola, that the immigration rules apply when they say they take effect in the absence of a statement to the contrary, does not apply where there was a vested right at the time of the relevant amendment. He submitted that the making of the decision by the Secretary of State on 12 July 2012 created a vested right that any subsequent adjudication or reconsideration would be based on the same immigration rules.
Odelola no longer good law: Developed submissions of the claimant
- In Odelola the appellant was a citizen of Nigeria and a doctor. She applied for leave to remain as a postgraduate doctor and under the rules then in force she was eligible for such leave because she had an overseas medical degree. However after she had made her application for leave to remain, changes were made to the immigration rules such that a person was only eligible for leave to remain as a postgraduate doctor if they had obtained a degree in medicine from a UK institution. Since the appellant could not satisfy the amended version of the rules she was refused leave to remain. The issue was whether the Secretary of State was entitled to determine the application by reference to the new rule. The House of Lords unanimously decided that she was.
- Mr Malik submitted that the key submission made to the House of Lords on behalf of the appellant in Odelola was that immigration rules are subordinate legislation and therefore the presumption against retrospectivity under the Interpretation Act 1978 (the "1978 Act") and common law applied to them.
- Mr Malik referred to the various dicta in the judgements where their Lordships rejected the submission that the immigration rules are subordinate legislation.
- Mr Malik referred to the statement of Lord Hoffmann at paragraph 6, where he states that the immigration rules are not subordinate legislation, but "detailed statements by a Minister of the Crown as to how the Crown proposes to exercise its executive power to control immigration".
- He also quoted Lord Brown at paragraph 34 where he states that the "core consideration in the case" was the fact that immigration rules are "essentially executive, not legislative" and concluded that the immigration rules
"indicate how it is proposed to exercise the prerogative power of immigration control".
- He cited Lord Neuberger at paragraph 46, who stated that the immigration rules had existed long before the 1971 Act and this tended to support the view that the rules were non-statutory in origin. Mr Malik submits that on this premise, Lord Neuberger concluded that the presumption against retrospectivity has no application in relation to changes in the immigration rules.
- Mr Malik submitted that in Alvi and Munir the Supreme Court expressly disapproved the premise on which Odelola was decided. He relied on the statement of Lord Hope at paragraph 32 in Alvi where Lord Hope observed that
"although I said… in Odelola that I agreed with Lord Brown's opinion, I think that it must be recognised that his statement as to the source of the power was wrong".
- Mr Malik also relied on the statement of Lord Dyson at paragraph 36 in Munir that
"I cannot agree with Lord Brown that the immigration rules indicate how the Secretary of State proposes to exercise the prerogative power of immigration control."
- Mr Malik submits that it follows from these dicta in Alvi and Munir that the immigration rules are subordinate legislation for the purposes of the 1978 Act and the common law presumption against retrospectivity. This presumption, he contends, can only be displaced by very explicit words. In this regard he relies on the words of Lord Rodger in Wilson v First County Trust Ltd (No 2)[2003] UKHL 40 at paragraph 200 that:
"The true principle is that Parliament is presumed not [to] have intended to alter the law applicable to past events and transactions in a manner which is unfair to those concerned in them, unless a contrary intention appears".
- Mr Malik submits that there is nothing in the language used in CM 8423 or the amended version of paragraph 79B of appendix A to the immigration rules that displaces the presumption against retrospectivity. He therefore concludes that the amended version does not apply to this particular case where there has already been a decision pursuant to the original version. Finally, he submits that if assessment of retrospectivity is a matter of degree, unfairness arising from the application of the amended version of the rules is at "the top end".
Defence submissions
- Miss Lean for the defendant submitted that there is no justified basis for any departure from the general principle that the immigration rules and policies set out by the defendant should be applied to decisions as they stand at the date the decision is made. She submits firstly, that there is no "clear specification to the contrary" in the relevant immigration rules and secondly, that it is clear from the case of R(Mohammed) v Secretary of State for the Home Department [2012] EWHC 3091 (Admin) that this approach applies to decisions which fall to be retaken after the quashing of an initial decision.
- She submitted that in reality the issue in this case is whether fairness requires that the Secretary of State consider the claimant's application against the version of the rules in force prior to the rule change. However, she submits that reliance on Mohammed as a basis for correcting any injustice that might have arisen is misplaced and refers to the decision of John Howell QC, sitting as a deputy High Court judge, in R(Belkevich) v Secretary of State for the Home Department [2013] EWHC 1389 (Admin) where he doubted (at paragraph 43) whether the argument that the defendant was bound to consider what leave the claimant would have been given and take into account the need to correct any resulting injustice could survive the decision of the Court of Appeal in EU (Afghanistan) and in any event states (at paragraph 44) that, "even if I am wrong in that … there is no requirement to correct any injustice [but] merely a requirement to take any such injustice into account."
- Miss Lean then made submissions on the issue of fairness, pointing out that the substantive requirements which the claimant had to meet in respect of his proposed salary were the same in July 2012 and September 2012. The only difference was that in September 2012 the salary specifications were contained in Appendix J of the immigration rules rather than in the Codes of practice. Accordingly, she submits that there has been no unfairness or "historic injustice" caused to the claimant.
Odelola no longer good law: Discussion of submissions
- Before the House of Lords in Odelola the appellant made 2 submissions: –
i) That under the Interpretation Act 1978 "where an act repeals an enactment, the repeal does not, unless the contrary intention appears… affect any right, privilege, obligation or liability acquired, accrued incurred under that enactment."
ii) The common law assumption was that in the absence of transitional provisions an enactment was not intended to have retrospective effect.
- Mr Malik submitted that the "key submission" made to the House of Lords was that immigration rules were subordinate legislation therefore the presumption against retrospectivity under the 1978 Act and common law applied.
- He cites in support of this argument Lord Dyson's comment in Munir at paragraph 36:
"Lord Brown (with whom Lord Hope and Lord Scott agreed) said at paragraph 34 that the 'core consideration in the case' was the fact that immigration rules are "essentially executive, not legislative".
- Relying on the dicta of Lord Hope in Alvi (at paragraph 18 above) and Lord Dyson at paragraph 36 of Munir, Mr Malik submitted that in Alvi and Munir the Supreme Court expressly disapproved the premise on which Odelola was decided. Mr Malik noted the observation of Lord Dyson at paragraph 40 in Munir where he states:
"in my view the views expressed by their Lordships on whether the rules were "subordinate legislation" within the meaning of section 23 of the 1978 Act were not necessary for their decision. The ratio of the case is that, as a matter of construction, in the absence of a statement to the contrary, immigration rules apply when they say they take effect."
However, he argues that if one ignores the question of whether the rules are subordinate legislation and retrospectivity under the 1978 Act and at common law, then the only thing left is the construction of the rules in that particular case. Accordingly, he submits that Odelola is no longer good law.
- Although in my view it is correct to say that the views expressed by their Lordships in Odelola that the immigration rules were not statutory was not followed in Alvi and Munir, it is necessary to look more closely at both Munir and Odelola to determine whether Mr Malik's submission that the Supreme Court disapproved the premise on which the case was decided is correct or whether it supports the conclusion of Lord Dyson that the views expressed were not necessary for their decision.
- Munir concerned the withdrawal of a policy dealing with the criteria to be applied when considering whether enforcement action should proceed against parents where there were children with long residence. It was submitted that the withdrawal amounted to a statement of a change in the immigration rules and that it was unlawful and of no effect because it had not been laid before Parliament.
- It was submitted that the Secretary of State was under no obligation to lay rules before Parliament on the basis that it was an exercise by the Secretary of State of the prerogative power. Lord Dyson, with whom the other Supreme Court justices agreed, took the view that (at paragraph 26):
"The power to make immigration rules under the 1971 Act derives from the Act itself and is not an exercise of the prerogative."
- He then considered the submission that his conclusion could not be reconciled with the House of Lords decision in Odelola. At paragraph 35 he said:
"in the opinion of Lord Hoffmann, the case turned on the construction of the new rule (paragraph 3). He said that the rules are "a statement by the Secretary of State as to how she will exercise powers of control over immigration." (Para 7). For that reason, the most natural reading of the rules (in the absence of any statement to the contrary) was that they would apply to the decisions she makes until such time as she promulgates new rules. In my view, that is the essential ratio of the decision."
- Lord Dyson, then deals with the proposition that Lord Brown at paragraph 34, said that the "core consideration in the case" was the fact that immigration rules are "essentially executive, not legislative" and states at paragraph 37
"it is not clear what part this view of the nature of the immigration rules, played in Lord Brown's decision. His overall conclusion at paragraph 39 was that, standing back from the detail and addressing "a single indivisible question to be answered, largely as a matter of impression." he had no doubt that changes in immigration rules, unless they specify to the contrary take effect whenever they say they take effect. Ultimately, therefore, like Lord Hoffmann he treated the question as one of construction of the relevant rule. I would accept that the immigration rules are statements by the Secretary of State as to how she will exercise her power to regulate immigration. But that is so whether the power to make the rules is statutory or is an exercise of the prerogative. I have difficulty in seeing how the source of the power sheds light on the question of construction that the House had to resolve." [Emphasis added]
- Turning to consider the individual judgements in Odelola, I note that Mr Malik paraphrases the words of Lord Brown in paragraph 34 to support his submission that the fact that the immigration rules were not subordinate legislation was a "core consideration". However, when the relevant expression is read in context, it seems to me that Lord Brown was not addressing whether the rules were subordinate legislation such that the 1978 Act or the common law presumption against retrospectivity applied. Rather, in my view he was addressing the point that that the presumption only applies in the case of vested rights. At paragraph 31 Lord Brown said:
"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) [2003] UKHL 40, [2004] 1 AC 816, [2003] 4 All ER 97. 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'."[Emphasis added]
- Lord Brown continues at paragraphs 33 to 35:
"33. In deciding what simple fairness demands in the present context, it is important to recognise first and foremost that, so far from asking here what Parliament intended, the question is what the Secretary of State intended. The rules are her rules and, although she must lay them before Parliament, if Parliament disapproves of them they are not thereby abrogated: the Secretary of State merely has to devise such fresh rules as appear to her to be required in the circumstances.
34. Secondly, as Mr Ockelton put it in the tribunal's decision here, 'the immigration rules are essentially executive, not legislative'; the rules 'are essentially statements of policy'. Longmore LJ said much the same thing in the Court of Appeal. 'The rules are statements of executive policy at any particular time… Policy statements change as policy changes.' This to my mind is the core consideration in the case."[Emphasis added]
35. The immigration rules are statements of administrative policy: an indication of how at any particular time the Secretary of State will exercise her discretion with regard to the grant of leave to enter or remain. Section 33 (5) of the 1971 Act provides that 'this Act shall not be taken to supersede or impair any power exercisable by her Majesty in relation to aliens by virtue of her prerogative.' The Secretary of State's immigration rules, as and when promulgated, indicate how it is proposed to exercise the prerogative power of immigration control."
He concludes at paragraph 39:
"Standing back, therefore, from the detail and addressing, as Lord Mustill proposed in L'Office Cherifien "a single indivisible question to be answered, largely as a matter of impression," I have no doubt that the changes in the immigration rules, unless they specify to the contrary, take effect whenever they say they take effect with regard to all leave applications, those pending no less than those yet to be made."
- To summarise Lord Brown in that passage, having noted the difficulty of identifying those rights which are so protected, he refers to the observation of Lord Mustill that the basis of the presumption "is no more than simple fairness". He then addresses the question (at paragraph 33) of deciding what simple fairness demands in the present context. He notes that the rules are devised by the Secretary of State, and although laid before Parliament, fresh rules can be devised as required. He concludes his analysis as to whether the appellant has a vested right by concluding that the rules are mere statements of policy as to how presently it is proposed to exercise an administrative discretion. Accordingly, although he does characterise the rules as "statements of policy" it seems to me that his overall conclusion depends not on the question of whether the rules are subordinate legislation within the 1978 Act but whether the presumption applies at all, and to determine this, he has to determine whether the appellant has a vested right. The fact that in reaching his conclusion he takes account of the rules as statements of policy which may change at any time, in my view is not undermined by the subsequent finding that the immigration rules are subordinate legislation (and this conclusion accords with the approach of Lord Dyson quoted above in relation to the source of the power). The key consideration to my mind in the analysis in Odelola which is unchanged by the subsequent decisions in Alvi and Munir is not that the rules are made under the Immigration Act but that they represent statements of policy which have to be laid before Parliament (as Lord Brown acknowledges) and subject to that the Secretary of State is free to devise new statements of policy at any time.
- As far as the other judgements are concerned in Odelola, Mr Malik relies on the statement of Lord Hoffmann at paragraph 6, that the immigration rules are not subordinate legislation. However, again this statement needs to be read in context. At paragraph 5 Lord Hoffmann said:
"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, 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."
He continues at paragraph 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 exercise its executive power to control immigration. But they create legal rights…. 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."[Emphasis added]
- In my view these extracts do not support the submission that the status of the immigration rules as subordinate legislation was a core consideration in the judgement of Lord Hoffmann in reaching his conclusion in Odelola. Rather he appears to accept that the presumption does apply but the question is one of construction.
- Lord Scott and Lord Hope agreed with Lord Brown. The subsequent comment of Lord Hope in Alvi as to the nature of the immigration rules, in my view, does not affect the overall analysis, and thus the conclusion in Odelola.
- Finally, Mr Malik relied on the statement of Lord Neuberger at paragraph 46, that the immigration rules were not made under any enactment. Again, however, this statement has to be read in context.
- At paragraph 49 Lord Neuberger states:
"I find it hard to see why the common law presumption against retrospectivity should be limited to statutes. It seems to me that, given that it is a principle developed by the courts, there is no reason why it should not be applied to any set of rules, which give rise to legal rights or obligations….[Emphasis added]
And at 51:
"As I see it, the crucial point for present purposes is that the immigration rules are intended to have legal effect and to give legal rights…[emphasis added]
52. Accordingly, the appellant had a right to have her application determined by the Secretary of State in accordance with the immigration rules…"
53. Given that the presumption against retrospectivity can apply to changes to the immigration rules, the next issue is whether it can be relied on in this case. I consider that the presumption, at least in its traditional sense, cannot be relied on, as this is not a case where there was a vested right at the time of the relevant amendment. At the time, the 2006 statement came into effect, the appellant did not have a right to have her application determined by reference to the rules, as amended by the 2005 statement. No doubt, she had that hope, or even that expectation, but she did not have that legal right."[Emphasis added]
- Lord Neuberger then considered the issue of unfairness (paragraph 59)
"having said that, I consider that the unfairness of the 2006 statement applying to existing applications such as that of the appellant is relatively slight. There is no question of the appellant having a vested right or legitimate expectation. The immigration rules would have been expected to be amended from time to time, as needs and perceptions change:…"
He then concludes that the amendments extend to an application made but not determined before the statement came into force.
- As with Lord Brown, it would appear that he was addressing the issues of whether there was a vested right and fairness and it is clear from his remarks that the fact that he considers the immigration rules to be non statutory is irrelevant to his conclusion.
Is Odelola still good law: Conclusion
- In my view a review of the full judgements in Odelola demonstrates that the question of whether the immigration rules are subordinate legislation was not the premise on which the case was decided. Accordingly the following statement of Lord Dyson in Munir that the views expressed on this point were not necessary for their decision is in my view correct and I reject the submissions that Odelola was wrongly decided when read in conjunction with the decision in Munir and that in the light of Alvi and Munir, is no longer good law. Lord Dyson at paragraph 40:
"in my view the views expressed by their Lordships on whether the rules were "subordinate legislation" within the meaning of section 23 of the 1978 Act were not necessary for their decision. The ratio of the case is that, as a matter of construction, in the absence of a statement to the contrary, immigration rules apply when they say they take effect."
Odelola limited to its facts: the issue of vested rights: Claimant's submissions
- In relation to this alternative basis to support the claimant's case, Mr Malik referred to Lord Neuberger at paragraph 52 in Odelola where he gave a hypothetical example of a case where
"the rules had provided that, where an application was not heard within a period of 6 months of its being made, it could only be refused on grounds of national security; and the rules were then amended so that the period was extended to one year".
Lord Neuberger observed that.
"In such a case, there would be a presumption that the change was not meant to extend to an application made more than 6 months before the period was extended by amendment."
- Mr Malik submits that applying the same logic to the facts of the present case, there is a presumption that the claimant's application, at reconsideration, would be decided by reference to the same immigration rules pursuant to which it had originally been decided. Mr Malik therefore seeks to distinguish between the facts of Odelola where no decision had been made but the application was merely pending and the situation in this case where a decision had been made prior to the change in the rules. In the former case where the application had not been decided, he submits that there was no vested right at the time of the relevant amendment, but in the current case, he submits that the making of the decision created a vested right that any subsequent adjudication or reconsideration would be based on the same immigration rules.
Odelola limited to its facts: the issue of vested rights: Discussion
- Mr Malik submits that there is a presumption that the claimant's application, at reconsideration, would be decided by reference to the same immigration rules pursuant to which it had originally been decided.
- Mr Malik distinguishes this case from the situation in Odelola on the basis that in Odelola the application had not been determined. In this case, he submits that the making of the decision by the Secretary of State on 12 July 2012 created a vested right that any subsequent adjudication or reconsideration would be based on the same immigration rules. He relies on the hypothetical example of Lord Neuberger at paragraph 52 in Odelola.
- However, at paragraph 53 Lord Neuberger said:
"Given that the presumption against retrospectivity can apply to changes to the immigration rules, the next issue is whether it can be relied on in this case. I consider that the presumption, at least in its traditional sense, cannot be relied on, as this is not a case where there was a vested right at the time of the relevant amendment. At the time, the 2006 statement came into effect, the appellant did not have a right to have her application determined by reference to the rules, as amended by the 2005 statement. No doubt, she had that hope, or even that expectation, that she did not have that legal right. Accordingly, if the amendments made by the 2006 statement applied to her application, there would be no interference with any vested right. That is in contrast with the position of the hypothetical applicant mentioned in the previous paragraph, whose application was not determined within a period of 6 months: if an amendment was then made extending the period to a year, he could properly claim to have a vested right to have his application granted unless it was contrary to national security. By the time the extension was introduced, the 6 months had expired without his application being granted, so the right under the rules to have his application refused only on national security grounds was, as it were, tucked under his belt.[Emphasis added]
- At paragraph 54
"I accept that the difference between the 2 cases is subtle, but, in my view it is clear and principled. In the example, a right given under the rules had actually come into existence by the time of the amendment …. On the other hand, in this case, no such right had ever come into existence." [Emphasis added]
- The problem in my view is that if one applies the words of Lord Neuberger, no entitlement to leave had vested in this case prior to the change in the rules. The claimant failed to meet the specified salary level in the code of practice and therefore did not qualify for the grant of leave. In my view it differs from the hypothetical situation put forward by Lord Neuberger, where the right was "tucked under his belt" which in my view, might have been the position had the claimant qualified for leave at that point. This is not a case where a decision had been made pursuant to which the claimant had been granted leave and then the rules were changed and the salary levels were increased with the result that the claimant no longer qualified for a grant of leave. In my view, no "right given under the rules" had come into existence by the time of the amendment.
- In the alternative, given the fact that the decision was withdrawn, it could be argued that the application remained pending (as is acknowledged in paragraph 25 of the statement of grounds). However, this would not assist the claimant's case as the claimant would be in exactly the same position as the appellant in Odelola namely that the application would have been pending and there was no legal right to have the application determined by reference to the rules prior to the change.
- For these reasons, it seems to me that the "vested right" which Mr Malik is forced to rely on is not a right to leave having vested under the rules, but rather the right to have any reconsideration based on the same rules as applied prior to the change. Further to succeed in his claim, the right which he seeks to establish as having vested is a right to have his application considered under the old rules, but without reference to the code of practice. Mr Malik submits that the application should be considered by applying the old immigration rules, but ignoring the specified salary in the code of practice.
- I find it difficult to see in the light of case law, including Mohammed and Belkevich that there can be a vested right to reconsideration on the old rules, certainly in a case such as this where given the facts and the salary levels pre-and post the changes, to my mind there is no "historic injustice". However, even assuming such a right has come into existence it remains to be considered whether the old rules can, and should be, applied without reference to the code of practice.
- Miss Lean in her submissions states that the requirement to meet specified salary criteria were set out in paragraph 79B of the immigration rules (as in force in July 2012). She submitted that, to sever the salary requirements would run contrary to the purpose of the relevant parts of the immigration rules and would change the nature of the rule which itself had been laid before Parliament. She relies on the analysis of the Court of Appeal in R (Miah) v Secretary of State for the Home Department [2012] EWCA Civ 1719 and in particular the comments of Lewison LJ at paragraph 47. In that case the Court of Appeal considered the requirement to hold a work permit and whether the requirement was legally ineffective because it imported a mechanism which was outside the immigration rules. The Court of Appeal held that the criteria for obtaining a work permit could be distinguished from the requirement to have held a work permit. Mr Malik submitted in that case that all reference to work permits in the rules should be struck out as invalid and that provided the criteria in paragraph 7 relating to age and supporting himself was satisfied, the applicant was entitled to stay. At paragraph 47 Lewison LJ noted (obiter)
"..the logic of Mr Malik's argument, if correct, would lead to the following conclusions:
i) the Secretary of State had no power to grant Mr Miah a work permit in the first place, because the criterion that had to be satisfied in order to obtain one had not been approved by Parliament;
ii) Consequently Mr Miah had no right to be in the United Kingdom at all;
iii) nor did the Secretary of State have power to grant him further leave to remain, because Parliament has never approved a rule which empowers the Secretary of State to grant leave to remain for a person merely because he is of the right age and able to support himself."
- Mr Malik responded that the present case was not to be compared with Miah and the correct comparison is with Pankina which was referred to in paragraph 44 of the judgement of Lord Hope in Alvi. In the case of Pankina an applicant for leave to remain as a post-study migrant had to have sufficient funds to maintain himself and a new provision provided that the migrant must be able to show £800 in his bank account for "a period of time set out in the guidance" and to provide the specified documents, being the documents specified by the Secretary of State in the policy guidance. The Court of Appeal held that the only relevant criterion was that the applicant should have £800 at the time of the application. The requirement that £800 must be held continuously for the three-month period did not form part of the immigration rules and was of no effect.
- Mr Malik therefore submitted that in this case the court should ignore what was in the guidance and on that basis, one would be left with the rule that the claimant was entitled to points for salary without it having to be at a specific level. He submitted that this would not change the substance of the requirements or the substance of what was laid before Parliament.
Odelola limited to its facts: the issue of vested rights: Conclusion
- The claimant did not satisfy the salary requirements in the code of practice. Accordingly, he did not qualify for leave to remain. In my view, he had acquired no vested right at the date of the decision.
- If I am wrong in this and the claimant had acquired a vested right not in the sense of a right to be granted leave but instead a right to have his application determined by reference to the rules at the date of the original decision then I do not think the rules can be applied in this case by severing the salary requirements. By paragraph 76 appendix A the applicant was required to score 50 points. 30 points would be derived from the relevant certificate of sponsorship and the remaining 20 points from an "appropriate salary". Paragraph 79B states that "no points will be awarded for appropriate salary if the salary referred to in paragraph 79 above is less than the appropriate rate for the job as stated in the codes of practice for Tier 2 sponsors published by the UK border agency…"
- Whilst I note the position in Pankina I do not accept that the correct approach would be to award 20 points regardless of salary level. I accept the submission of Miss Lean that to ignore the salary levels would drive a "coach and horses" through the scheme as Parliament intended. Whether one were to interpret the rules as a requirement for no salary or any salary regardless of level, this to my mind is clearly at odds with the framework for the scheme set out in the immigration rules at paragraph 245HD and paragraphs 76 to 79 of appendix A.
- Mr Malik rejected any reliance on Mohammed and Belkevich dismissing them as legacy cases. However, he submitted that if the court were to decide that they are relevant, he noted that following these cases although there was no requirement to correct an injustice, any previous injustice must be taken into account. He submitted that this undermines the defendant's case because the September 2012 decision ignored the earlier decision.
- In my view there was no vested right and therefore any claim would have to be on the basis of "historic injustice". However, as Miss Lean made clear in her submissions there has been no unfairness or historic injustice in this case. The claimant did not meet the salary specifications at the time of the original decision and the levels were unchanged in September 2012. Mr Malik did not advance any case on this basis, and therefore I do not propose to consider it further.
Policy guidance – Alvi judgement
- A subsidiary point, which was not in the original grounds was raised in relation to the policy document attached to the defendant's detailed grounds of defence. The policy document was stated to provide guidance in the light of the Alvi judgement. The version attached to the defence was expressed to be valid from 16 October 2013 although Mr Malik accepted that something similar was probably in place prior to that date. Mr Malik argued that the defendant had failed to apply the guidance in that document. He relied on page 10 which states
"Is there evidence (not limited to 'specified evidence') that the appellant or claimant meets the requirements of the rules pre-20th of July 2012? In these cases, you must withdraw the decision and reconsider the case".
- Mr Malik submitted that the claimant met the pre-20 July 2012 immigration rules as there was no effective requirement that his salary should be at a particular level. He therefore submitted that the claimant should have been granted leave. Insofar as page 12 of the policy document sets out an approach which is opposed to the one at page 10 he submitted that it was flawed.
- Page 12 deals with the situation of whether "it [is] possible to apply the rule the refusal is being challenged under without referring to the requirement outside the rules. At page 13, it states:
"The Alvi judgement states it is unlawful for an applicant to have to satisfy requirements that are not contained in the immigration rules… So if the original rule does not make sense or cannot be applied without reference to requirements outside the immigration rules, that original rule is no longer workable and the application cannot be reconsidered by applying that rule. The application must therefore be reconsidered under the rules in force on the date the application is reconsidered."
- In my view this line of argument adds nothing to the substantive question discussed above. I do not accept Mr Malik's interpretation of page 10 of the guidance and in my view for the reasons set out above the claimant's case falls within the situation contemplated at page 13 of the guidance.
Conclusion
- In making her decision of 27 September 2012 in relation to the claimant the defendant applied the immigration rules in force at that date. Having considered all the evidence put before me and for the reasons set out above the claimant has not established that the defendant acted unlawfully in so doing.
- Claim for judicial review is dismissed.
