Changes of law and policy, rights against retrospective legislation, and legitimate expectation
Produced in partnership with Judith Farbey QC of Doughty Street Chambers and Deborah Revill of Lamb Building
Changes of law and policy, rights against retrospective legislation, and legitimate expectation

The following Immigration practice note Produced in partnership with Judith Farbey QC of Doughty Street Chambers and Deborah Revill of Lamb Building provides comprehensive and up to date legal information covering:

  • Changes of law and policy, rights against retrospective legislation, and legitimate expectation
  • The presumption against the retrospective effect of legislation
  • Changes to the immigration rules
  • Changing or withdrawing a policy—the legal effects
  • Legitimate expectation—the main principles
  • Legitimate expectation—some examples
  • Legitimate expectation and the duty to act according to policy

Changes to immigration law may mean that a person who applies for entry or stay under one rule or policy may have the application determined under a different rule or policy. This Practice Note gives an overview of the principles which the courts have adopted on the effect of changes of law or policy on individual cases. The key topics are:

  1. the presumption against the retrospective effect of legislation

  2. the legal effects of withdrawing a policy

  3. the principle of legitimate expectation

These topics are complex. Advice to clients will often depend on the precise facts of the case, rather than on the automatic application of what the courts have said in previous cases. This Practice Note aims to provide the basis for a general understanding of some of the legal principles.

The presumption against the retrospective effect of legislation

Under common law, there is a presumption that a statutory provision does not have retrospective effect in the sense of altering existing legal rights. The presumption has traditionally not been applied to enactments dealing only with procedural matters on the grounds that no one has a vested right in any particular procedure. However, the courts have more recently emphasised that the difference between procedural and substantive rights is sometimes equivocal and that the touchstone of whether any enactment has retrospective effect is fairness. The presumption against retrospective legislation

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