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New rules do not apply to old applications


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The Court of Appeal has in the case of Edgehill & Anor v Secretary of State for the Home Department [2014] EWCA Civ 402 settled the question of whether the new human rights rules introduced on 9 July 2012 apply to applications made before that date: they do not. Specifically, it is unlawful to apply rule 276ADE on long residence to applications that were already outstanding at the date the new rule came into force.

In his leading judgment, Jackson LJ also makes clear that a decision referring in passing to the new rule will not automatically be unlawful:

A mere passing reference to the 20 years requirement in the new rules will not have the effect of invalidating the Secretary of State’s decision. The decision only becomes unlawful if the decision maker relies upon rule 276ADE (iii) as a consideration materially affecting the decision.

Notably the submission of the Secretary of State that the transitional provisions had a meaning other than that of the words used was rejected as being too subtle and dextrous for mere mortals to comprehend:

The Immigration Rules need to be understood not only by specialist immigration counsel, but also by ordinary people who read the rules and try to abide by them.

Might this be a sign of things to come when the Court of Appeal finally has to dare the labyrinth of Appendix FM? Edgehill was the inconclusive start to a four year civil war, so the precedent is not encouraging.

Adam Tear of Duncan Lewis and Zane Malik instructed by Malik Law Chambers acted for the appellants, Charles Bourne for the respondent.

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Colin Yeo

Immigration and asylum barrister, blogger, writer and consultant at Garden Court Chambers in London and founder of the Free Movement immigration law website.


20 Responses

  1. Hy can you please tell me .is there any news for spouses of income thershold?
    Many thanks

  2. I find it difficult to believe that the Home Office STILL apply new rules retrospectively to existing cases and think they’ll get away with it, especially after the roasting over the HSMP Forum case (though not exactly the same). Actually strike that, it’s not difficult to believe at all…..

  3. Is there any update on the spouse financial requirement case … Desperate for news!

  4. Hmmm. I have a number of ancient reconsideration applications pending in which we have argued that the new rules *do* apply to old applications- speficially the rules about children here for 7 years and their parents which (after the withdrawal of the policy) had no parallel in the old rules system.
    A broad interpretation of Edgehill would seem to be against us…

  5. This is brilliant news. i am currently waiting for grant of JR for applying the new 9.7.12 rules to an old application. finally common sense prevails.

    1. When did you place JR?! I’m wondering how long it takes! I submitted mine in jan and heard nothing?

  6. Yet the Home Office still includes in the latest Immigration Directorate Instructions
    “This guidance tells you how to decide applications ……..and is to be used for all applications decided from 6 April 2014.”

  7. i submitted my JR 6th jan 2014 but recently found out the home office still haven’t filed an acknowledgment of service, therefore the utiac cant proceed…

  8. UTIAC are empowered to proceed without acknowledgment of service. See case of R(on the application of Kumar and Another) v Secretary of State for the Home Department (acknowledgement of service; Tribunal arrangements) IJR [2014] UKUT 104 (IAC).

    1. Is that the courts decision to proceed, or can the applicant ask the court to do so?! The court have told me it’s waiting for the judge to look at it, so not sure if the HO have replied or not?! Complicated process!

  9. I guess the appellant can ask the court to proceed after the 42 days (specified in the case above) are up. Before then you would need reason for exceptional urgency (which you should have put in the claim form, unless they have arisen since claim). If they’re waiting for the judge to look at it could be they intend to proceed w/o HO. Tsol will send you any reply they make, so if they had replied you would know about it.

    Recently Tsol asked us for an extension, we drew this case to their attention, and they then responded within the time limit, (although the response didn’t seem to be drawing on input from their client!).

    1. Thank you Philip, that’s the most useful information anyone has shared with me! It’s all so confusing! We’ve heard nothing from tsol and it was submitted 14 weeks ago! I hope it’s gd news this has been a long frustrating journey! As a British citizen I can’t believe the response from ukba, as it was, to my partners app!

  10. If UTIAC can proceed without aos I wonder why they don’t just do so? I have wasted 2 years dealing with the home office, the silent frustration carries on…

    1. Funnily enough today we received a refusal from the Court today, actually not funny at all! Just don’t know what to do now! So sad, no one is bothered about the human rights of me as a British citizen, let alone those of my partner. Any advice what to do next or some gd legal advice?!

  11. Enrique: Try asking them (in writing, with reference to the case above).

    Hannah, there should be instructions with the refusal on how to renew the application at an oral hearing. If you want to do that then you’ll need a barrister who does direct access work (or a solicitor and a barrister). Garden Court Chambers does have direct access barristers, though whether one will be available is another matter (the oral hearing is normally very short notice). I think there’s a link to the chambers on this page (this is their blog).

    1. Yes it says to reply within 3 days of decision being sent! The decision was on 17th, I only received the letter yesterday?! So looks like they’ve already made it so the date has passed! I’ve emailed the chambers but not had a response yet! I feel very upset about it all! Just no where to turn!

  12. I would phone the chambers. They may be able to advise you about the time limit and (if necessary, out of time appeals). I would guess that it means 3 working days from the date you were served with the decision (which would be 2 working days from the date of the decision- this allows for post) so the last possible day would be Monday. But I’m not totally sure about that.

  13. Thanks so much Philip. I think this is the best advice I have received so far. Are you a lawyer or Barrister with direct public access? If yes then I will be recommending your services to all my friends and family with immigration problems.

  14. Thanks Enrique. I am indeed a lawyer (paralegal). I work for a charity called the Cardinal Hume Centre. Unfortunately, we’re not currently taking new immigration clients. Even when we do start taking them again (June, probably), we have strict access criteria (basically you need to be in London and homeless/no recourse to public funds and have a reasonable chance of success) and a 2 month waitng list. So you’re welcome to recommend us but we may not be able to help everyone.

  15. Well fingers crossed for them. Unfortunately its too late for me. My legal advisor who I unfortunately paid an extortionate fee gave me the wrong advice it seems. Has rewritten to the home office to try and get the Aos. Wonder if writing to them again is any help.