Where an application for leave to remain is made before 9 July 2012 but decided after that date, which Immigration Rules should apply to it?

The answer, according to Court of Appeal in Singh v Secretary of State for the Home Department [2015] EWCA Civ 74, is the ‘old’ Rules, but only for decisions made between 9 July and 6 September 2012.

Singh finally resolves a conflict in the case law between Edgehill v Secretary of State for the Home Department [2014] EWCA Civ 402 and Haleemudeen v Secretary of State for the Home Department [2014] EWCA Civ 558. The conflict arises from, in the words of Lord Justice Underhill in Singh, ‘kaleidoscopic changes’ to the Immigration Rules, and in particular the transitional provisions.

The controversial HC194, which contained the new Appendix FM and came into force on 9 July 2012, contained an ‘implementation provision’ which stated that:

if an application for entry clearance, leave to remain or indefinite leave to remain has been made before 9 July 2012 and the application has not been decided, it will be decided in accordance with the rules in force on 8 July 2012.

A further Statement of Changes– HC595 – came into force on 6 September 2012. HC595 contained paragraph A277C, which provided that:

Subject to paragraphs A277 to A280 and paragraph GEN.1.9. of Appendix FM of these rules, where the Secretary of State is considering any application to which the provisions of Appendix FM (family life) and paragraphs 276ADE to 276DH (private life) of these rules do not already apply, she will also do so in line with those provisions.

Described by the Court in Singh as an example of ‘rebarbative drafting’, paragraph A277C at least appears to reverse the effect of the implementation provision in HC194, applying the new Rules to all pending applications.

Considering these transitional provisions, the Court’s analysis in Singh takes as a starting point the decision of the House of Lords in Odelola v Secretary of State for the Home Department [2009] UKHL 25. Odelola establishes the general rule that changes in the Immigration Rules apply not only to applications made on or after the date that they take effect but also to applications pending as at that date, unless the relevant Statement of Changes contains an express indication to the contrary (per Lord Brown at [39]).

In Edgehill, it was accepted that the implementation provision in HC 194 constitutes a contrary indication of this kind. Singh reaches the same conclusion.

However in Haleemudeen, the Court of Appeal rejected the submission that the new Rules could not apply to applications made before 9 July 2012 but decided afterwards, on the basis that it would offend the principle in Odelola. Hence the potential conflict arises. Significantly though, the Court in Haleemudeen was not referred to either Edgehill or the implementation provision itself. To that extent it was decided per incuriam.

Having found that paragraph A277C in HC595 was indeed intended to reverse the effect of the implementation provision, Lord Justice Underhill summarises the position as follows [at 56]:

(1)    When HC 194 first came into force on 9 July 2012, the Secretary of State was not entitled to take into account the provisions of the new Rules (either directly or by treating them as a statement of her current policy) when making decisions on private or family life applications made prior to that date but not yet decided. That is because, as decided in Edgehill, “the implementation provision” set out at para. 7 above displaces the usual Odelola principle.

(2)        But that position was altered by HC 565 – specifically by the introduction of the new paragraph A277C – with effect from 6 September 2012. As from that date the Secretary of State was entitled to take into account the provisions of Appendix FM and paragraphs 276ADE–276DH in deciding private or family life applications even if they were made prior to 9 July 2012. The result is that the law as it was held to be in Edgehill only obtained as regards decisions taken in the two-month window between 9 July and 6 September 2012.

At the end of his judgment, Lord Justice Underhill makes the following general comments about the Immigration Rules ([58]-[59])

…It is not uncommon for advisers in this field to need to know what the effect of the Rules was at some date in the past: despite the principle recognised in Odelola, historical information of this kind may be relevant in a variety of circumstances, as the present cases illustrate. … The Statements of Changes are so frequent and so detailed that it would be intolerably laborious for anyone, even a specialist, to start with the current version and to work back, stage-by-stage, to establish how the Rules stood months or years previously. In my view it is essential that the Home Office should make available an archive of all previous consolidated versions of the Rules in a form that enables the public and practitioners to see clearly what rules were in force at any given date: if such an archive is not maintained for working purposes within the Home Office (which would be surprising) it will have to be created, though I pity whoever has to undertake the task.

For those of us who have conducted such ‘intolerably laborious’ tasks, it is pleasing to see that the Home Office appears to have taken this advice on board. The Home Office website now contains ‘snapshots’ of the Rules in force between successive Statement of Changes, enabling the Rules in force on any particular date to be easily accessed.