Two Types of Retrospective Rule Making, the Rule of Law, and UK Immigration Policy

Abstract

This paper submits that there are two types of retrospective rule making (RRM): RRM in the strong sense and RRM in the weak sense. In the former, we have a rule that changes the legal status or legal consequences of an act that was committed before the rule was created; or a rule that changes the legal status or legal consequences of a situation that existed - and ceased to exist - before the rule was created. In the latter, we have a rule that changes the legal status or legal consequences of an act that has started before the rule was created, yet this is an ongoing act that is still being committed in the present and continues into the future; or a rule that changes the legal status or legal consequences of a situation that existed before the rule was created – and continues to exist after the rule was created. Both types of RRM can be equally immoral – and violate the rule of law to a similar extent. The case of the rules governing non-EU immigration to the UK is used as a test case of RRM in the weak sense that is morally indefensible and legally questionable.