Policy discretion, Gurkhas, and Indefinite Leave to Remain

This week’s office talk was given by Rob Lyon about the Court of Appeal case of UG (Nepal), NT and RM (Nepal) and YP (Nepal) v Entry Clearance Officer.

The appeal followed the decisions of the Immigration First Tier and Upper Tribunals in three separate cases, each dealing with the refusal of entry clearance applications to the UK of adult dependants of Gurkhas granted indefinite leave to remain under the HM Forces rule and, by extension, other Commonwealth service personnel.

In his judgement, Lord Justice Tomlinson observes that this case grapples with sensitive immigration policy, created in recognition of the UK’s “unquestioned debt of gratitude for generations of loyal and distinguished service by the Gurkhas”.

Following service in the British Army for four or more years, a Gurkha may apply for indefinite leave to remain in the UK. Partners and dependant children of a Gurkha may also apply for indefinite leave to remain at the same time. In recognition that Gurkha’s may have adult children – that is children over the age of 18 years – who remain dependent upon the parent, the Entry Clearance Officer (ECO) may apply discretion in allowing such dependants to join their parent by granting indefinite leave to remain.

It is this very discretion, outlined in policy guidance falling outside the remit of the Immigration Rules, that this appeal sought to examine.

For brevity’s sake, I shall attempt to summarise the general scenario of three of the cases (NT, RM and YP) unless where specifically referred to, with the scenario in UG deviating somewhat from these. For the full factual background in each case, the judgment is available at the link above.

Policy

The policy  provided that:

Dependants over the age of 18

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. Dependants over the age of 18 need to make separate, individual applications and pay the appropriate fee. In assessing whether settlement in the UK is appropriate ECOs 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 ECO may exercise discretion and grant entry clearance for settlement in the UK.

Facts

With the exception of UG, the applicants were adult children of Gurkhas settled in the UK. Neither had been able to convince the ECO of financial dependency. In NT and RM, the brother and sister claimed to be studying in Nepal but the ECO was not convinced of this in relation to the younger sibling. In any event, the ECO found no evidence that either sibling would be living alone if denied entry to the UK. The facts in YP are similar.

UG stands alone in that the ECO refused the application on the basis that the adult child, despite being financially dependent upon their father for studies, had applied several months after their father’s entry to the UK which, the ECO argued, constituted familial separation. The ECO also relied upon entirely incorrect policy guidance. The issue of separation was for the CA to address although this was dispensed with, following the Home Secretary’s concession prior to the hearing that to refuse the application on the basis of ‘separation’ – when the policy itself presumes such separation once the Gukha has relocated to the UK – was incorrect.

It would seem, therefore, that UG arrived at the CA by accident, but was in any event bundled in with this issue of policy interpretation and application.

The First Tier Tribunals in both cases were sympathetic to the applicants, arguing that the ECO in NT and RM had failed to correctly apply the policy guidance and, in YP, had applied the incorrect policy guidance. In NT and RM, the First Tier judge concluded that the guidance “is a statement of policy that is to be regarded as absolute in the individual facts of the case”. In other words: if the applicant satisfies the first bullet point above (a necessary hurdle), satisfaction of any remaining bullet point presumes a grant of entry clearance, subject to ECO evidence to displace such a presumption.

The First Tier judge in YT agreed.  Both tribunals held the decisions to be not in accordance with the law, determining that the applicants had in fact been studying, financially dependent and, if denied entry to the UK, alone in Nepal.  On this basis, both Frist Tier Tribunals directed that, far from being an outstanding decision of the ECO (as argued by the Home Secretary), applicants be granted entry clearance for settlement.

The Home Secretary appealed this decision in both cases. The Upper Tribunal held that the First Tier Tribunal judges had been wrong to speak of ‘absolute terms’ where discretion was involved; that no presumption in favour of the applicant existed. In short: the discretion belonged to the ECO, not the judge. Accordingly, the UTs set aside the FTTs’ decisions, substituting a finding that the ECO had failed to apply to policy and that the decisions remained outstanding with the ECO.

Court of Appeal

In his judgment, Lord Justice Tomlinson sets out the positions of the appellants and the Home Secretary.

The appellants argue that where it is shown that the applicant’s parent is settled in the UK under the HM Forces rule, there is a presumption in favour of the applicant’s application where they are able to satisfy one other criteria established under the policy, in the absence of countervailing factors put forward by the ECO.

The Home Secretary, however, argues that, despite its purpose of preventing ‘stranded sibling’ phenomenon, the policy provides the ECO with discretion to allow or refuse applications under this policy; that the policy is not absolute. In short: that the ECO must assess the nature and quality of association of the applicant to the UK, and the level of family dependency.

The Court of Appeal found favour in the Home Secretary’s submissions, citing DIK Prasad Pun and Others, in which is was held that such policy,

 creates a broad discretion to be exercised in the light of the individuals facts and circumstances of each case taking into account but not limited to the identified bullet points.

The court continued: “The ECO is entitled to pursue lines of enquiry ranging beyond the matters encapsulated in the bullet points”.

Turning to the issue of ‘fairness’ – a term this blog has increasingly spotted popping up in all areas of immigration and the chosen weapon of the beleaguered applicant/appellant – in applying discretion, the Court robustly comments that “fairness involve fairness to both parties”. Such language will no doubt be welcomed by the government, keen to see that ‘fairness’ is not the preserve of the individual.

The Court dismissed the appeals of NT and RM and YP, allowed the appeal of UG (setting aside the decision that the family had been separated), and remitted each case to the relevant ECO for reconsideration, with application of current facts to the correct policy at the date of the application.

Conclusion

Despite the politically sensitive nature of immigration decisions relating to Gurkhas and their families, the Court of Appeal robustly dealt with the issues arising in these cases, making it clear that a discretion arising from policy guidance remains with the ECO and is not to be interpreted by her in absolute terms.  To do so would be unfair to the Home Secretary, as it would seek to limit the ECO’s discretion to consider all the facts in each application.

What is perhaps more palpable in this decision is the court’s apparent scolding of the ECOs and Tribunals to either isolate the appropriate policy guidance or, in any event, interpret it with any conviction. One hopes that the decisions remitted to the ECO shall be processed with the diligence they deserved in 2007 and 2009.