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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