Q&As

When the First-tier Tribunal is deciding an appeal of a refusal of an Appendix FM decision that was made prior to 10 August 2017, does it have to consider the provisions at paragraph GEN.3.1, or does that paragraph only apply to Home Office decisions made after that date?

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Published on LexisPSL on 13/12/2017

The following Immigration Q&A provides comprehensive and up to date legal information covering:

  • When the First-tier Tribunal is deciding an appeal of a refusal of an Appendix FM decision that was made prior to 10 August 2017, does it have to consider the provisions at paragraph GEN.3.1, or does that paragraph only apply to Home Office decisions made after that date?

The general principle that immigration applications are to be decided by the Secretary of State for the Home Department (SSHD) in accordance with the Immigration Rules (the Rules) in force at the time the decision is made was confirmed by the House of Lords in Odelola v SSHD. However, transitional provisions set out at the start of a Statement of Changes in Immigration Rules have been recognised by the Court of Appeal as displacing the Odelola principle and therefore binding the SSHD as to the version of the Rules that she may apply in a given case. See Practice Note: The legal status of the Immigration Rules and Home Office policy.

Paragraph GEN.3.1 of Appendix FM, titled ‘Exceptional circumstances’, was added to the Immigration Rules by paragraph FM11 of Statement of Changes in Immigration Rules HC 290. The implementation clause at the beginning of HC 290 provides that: ‘The changes set out in this statement shall take effect from 10 August 2017 and will apply to all decisions made on or after that date’. This is therefore in line with the general Odelola principle.

However, while the Rules to be considered in an appeal will be those in force at the time of the decision, any case law which post-dates the decision and interprets those Rules, or gives guidance on any other aspect of law

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