What does it mean for a decision to not be in accordance with the rules?
How does the Nationality, Immigration and Asylum Act 2002 set out the grounds of appeal?
Section 84 of this Act outlines valid grounds of appeal to the Immigration & Asylum Chamber, which are:
that the decision is not in accordance with the immigration rules
that the decision is unlawful by virtue of Race Relations Act section 19B
that the decision is unlawful under the Human Rights Act i.e. the decision is incompatible with the Convention rights of the appellant
that the appellant’s rights under the Community Treaties would be breached because they or a family member are an EEA national
that the decision is not in accordance with the law (other than the immigration rules)
that discretion should have been exercised in a different way to how it was legally exercised by the initial decision maker
According to section 86, the i mmigration & Asylum Chamber is legally bound to allow an appeal brought before it ‘in so far as it thinks that’ one of the above grounds of appeal is the case. This provision is a legacy from the Immigration Act 1971 and the Immigration and Asylum Act 1999.
What does it mean for a decision to be not in accordance with the immigration rules?
Section 86 (and of course its predecessors) has had the effect of giving binding force to the immigration rules. The grounds of appeal include the provision that any immigration decision can be appealed if it is not in accordance with the rules. This means that all immigration officers, Home Office staff and entry clearance officers making such decisions are bound to act within the rules.
The applicant cannot, at the beginning of the process to be granted leave or an extension of leave, insist on being granted entry simply because they meet the rules, however. It is only at the stage of the hearing before the tribunal that the immigration rules have the force of law. It follows that if the Immigration Judge finds that all requirements for entry (as set out in the rules) are met, the appeal must be allowed.
Does the immigration decision have to be in accordance with the immigration rules at the date of the application, decision or appeal hearing?
The case of MO (Nigeria) from 2007 is a good example to show how the frequency with which the immigration rules change has implications for appeals. This example relates to the changes in the rules to how postgraduate doctors were permitted to complete their training in the UK.
MO came to the UK in 2005 with a medical degree from overseas but was considered to be a postgraduate doctor. After completing two clinical attachments and progressing in her basic surgical training, the UK’s Postgraduate Medical Education and Training Board confirmed that she had ‘acceptable’ levels of necessary training in January 2006. Mo then decided to apply for leave to remain as a postgraduate doctor.
The immigration rules on medical graduates were radically restructured on 3rd April 2006 to mean that only a UK medical degree would now be accepted as the basis of leave as a postgraduate doctor. As a consequence of this change to the immigration rules, MO’s application was refused on 26th April 2006.
MO appealed this, citing grounds of appeal that the decision was not in accordance with the immigration rules in force at the date of her application i.e. before 3rd April’s changes. If the date of application was being considered, she would have obtained leave to remain. However, the tribunal held that the immigration rules to be considered were those at the time of the decision i.e. after 3rd April.
The reason given by the Immigration Judge in the determination to MO’s case was that the immigration rules represented the policy of the Secretary of State. As policy, these rules could change freely and transitional provisions were not obligatory when implementing start dates to new rules. This is despite the fact that, at the stage of appeal, the rules have the force of law as they do not have the status of delegated legislation. If they did then consideration would be given to the legislation at the time of the application.