Policy on admitting Gurkhas’ families

The Court of Appeal so held when considering appeals from the Upper Tribunal Immigration and Asylum Chamber by UG, NT, RM and YP, who were all dependants of former Gurkhas.

In respect of applications made outside the UK, internal guidance for the use of entry clearance officers contained in Diplomatic Service Procedures Entry Clearance, volume 1, General Instructions, of December 2007, chapter 29 concerning “settlement entry for former members of HM Forces and their dependants” had been superseded in 2009 by internal UK Border Agency guidance SET 12: Settlement Entry for former members of HM Forces and Families. Paragraph 29.14 of the 2007 guidance, and paragraph 12.16 of the 2009 guidance concerned dependants over the age of 18 and were identical to each other.

Paragraph 29.14 of the 2007 guidance provided: “It is not the intention to split a family unit solely because a dependant is 18 years of age or over. Applications for settlement from dependants who are 18 years of age or over will be considered and discretion to grant settlement outside the Rules may be exercised in individual cases . . . In assessing whether settlement in the UK is appropriate entry clearance officers should consider the following factors:

• one parent or a relative of the applicant is present and settled, or being admitted for, or being granted, settlement in the UK under the HM Forces rule;

• the applicant has previously been granted limited leave as a dependant of a member of HM Forces;

• the applicant has been, and wishes to continue, pursuing a full-time course of studies in the UK;

• refusal of the application would mean that the applicant would be living alone outside the UK and is financially dependent on the parent or relative present and settled, or being granted settlement in the UK under the HM Forces rule;

• the applicant would find it very difficult to function because of illness or disability without the help and support of their parent or close relative in the UK.

If one or more of the factors listed above are present, the entry clearance officer may exercise discretion and grant entry clearance for settlement in the UK.”

Mr Richard Drabble, QC, Mr Christian Howells and Ms Rebecca Stickler for the appellants; Mr Gerard Clarke for the Secretary of State for the Home Department.

LORD JUSTICE THOMAS said that the policy guidance of 2007 and 2009 were to be construed and approached in the same way.

The appellants argued that satisfaction of the first and one or more of the other factors in the policy guidance created a presumption that a family would not be split solely because of the majority of a dependant, and that entry clearance without more would be granted unless there was something under the terms of the policy or evidence was produced by the secretary of state to displace that presumption.

However, the policy was not couched in such absolute terms. Satisfaction of some of the criteria could not therefore be said to give rise to a presumption in favour of the grant of entry clearance.

The policy conferred a discretion upon the entry clearance officer, the exercise of which had to be informed by the objectives of the policy. The entry clearance officer was entitled to pursue lines of inquiry ranging beyond matters identified in the guidance as requiring consideration.

Nominal or even substantial satisfaction of the criteria was not of itself determinative of the issue of whether settlement in the UK was appropriate. The opening sentence of the policy said no more than that the majority of a dependant was not of itself a bar to entry clearance.

In none of the appellants cases had the entry clearance officer regarded it as relevant to consider the quality and nature of the circumstances which were said to militate in favour of settlement. In three of the cases the entry clearance officer had applied the wrong policy by looking for exceptional circumstances. In one case there had been an incorrect approach to the severance of the family unit.

During the progression of each of the appellants cases through the tribunals, attention had been focused on irrelevant matters. Therefore, considerations of fairness and coherent decision making required all the applications to be remitted for reconsideration by the entry clearance officer.

Lord Justice Sullivan and Lady Justice Arden agreed.

Solicitors: N.C. Brothers & Co, Reading; Treasury Solicitor.