Odelola v SSHD has been dismissed in the House of Lords. The immigration rules that apply to a decision are those at the date of decision, not the date of the application. There is no presumption against retrospectivity.
The Law Lords do not repeat Buxton LJ’s analysis of the nature of the immigration rules, saying that it would be ‘unnecessary and unhelpful to repeat that exercise here’. Buxton LJ’s approach does not therefore receive the imprimatur of the House of Lords. It has provided the foundation for some unusual results, including the wholesale abandonment of the rules of statutory interpretation by Laws LJ in the AM (Ethiopia) case. The Lords do agree that the rules are not statutory and are statements of policy: executive rather than legislative in the words of Mr Ockelton below. However, normal statutory interpretation rules more or less seem to be applied by the Lords in this and other immigration cases.
The Lords all agree that it was extremely shoddy of the Home Office to have taken a fee for an application on the basis of one set of rules at which time the applicant would have succeeded and then changed those rules so that she did not. However, there was no suggestion that the change was directed at her personally nor that there was any untoward delay or unlawful general putting on hold as there was in the R (S) case. In such a case, there would be a very strong argument for correcting the abuse of process, conspicuous unfairness or whatever you want to call it.
There have been a number of other examples of fees for applications being accepted and then the applications being rejected after a change in the rules. The Entry Clearance Monitor, Linda Costelloe Baker, was highly critical of such practice in her final report. This and the general ‘customer services’ (a phrase to make any immigration lawyer and most immigrants mutter darkly when applied to UKBA) side of things will be on the agenda for the Chief Inspector of UKBA, John Vine, so there may be more developments in the future on the Home Office’s rapacious approach to fees.
