Immigration Rules And The Date Of Decision
Applicants for leave under the Immigration Rules must meet
the terms of those rules at the time that the application is
decided, not the rules in force at the date the application is
made. The House of Lords so held in the case of MO (Nigeria) v
Secretary of State for the Home Department, [2009] UKHL 25 in a
judgement promulgated in May 09, in which Duncan Lewis & Co.
acted for the Appellant.
Applicants (and their advisors) require fortune tellers - MO
(Nigeria) Part I
This case involved a doctor with limited Leave to Remain in the
United Kingdom as a visitor undergoing a clinical attachment (an
unpaid course to allow foreign doctors to familiarize themselves
with UK medical practice) who sought further Leave to Remain as a
doctor and practise in the United Kingdom, a normal course of
seeking entry as a doctor at the time, and one specifically
contemplated in the Immigration Directorate's Instructions.
At that time the application was made the requirements of the
Immigration Rules were met by MO and had the application been
decided on that day, it ought to have been allowed. Unfortunately,
for MO there was a delay (of only a few months) and in the interim
period the Secretary of State changed the rules such that there is
now a new requirement that a person in the position of MO must have
obtained their medical degree in the United Kingdom, which MO had
not. This is irrespective of the fact that overseas qualified
doctors are required to demonstrate that their skills and training
are to a level suitable to allow them to practise in the United
Kingdom. The Secretary of State then refused the application on the
basis that it did not meet the new rules.
In the light of the continuing delay by the Secretary of State
in making decisions on immigration applications and the contrasting
eagerness to continuously amend the Immigration Rules1
it is not surprising that for large numbers of applications the
relevant immigration rules have changed between the date of
submission and the date of decision, often with no explicit
transitional provisions in place. The issues in this case
potentially affect thousands - possibly even tens of thousands - of
applications a year.
Despite its importance, this issue had not been the subject of
many reported cases in the higher courts and those that did exist
were rather dated, with the lead case being heard in 1978. Further,
the reasoning that was applied in those cases relied on various
considerations of the...
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