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New rules do not apply to old applications

New rules do not apply to old applications

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.

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

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