Pun and Others (Gurkhas—Policy—Article 8) Nepal
| Jurisdiction | UK Non-devolved |
| Judge | Senior Immigration Judge Latter |
| Judgment Date | 08 September 2011 |
| Neutral Citation | [2011] UKUT 377 (IAC) |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Date | 08 September 2011 |
[2011] UKUT 377 (IAC)
Upper Tribunal
(Immigration and Asylum Chamber)
THE IMMIGRATION ACTS
SENIOR IMMIGRATION JUDGE Latter
SENIOR IMMIGRATION JUDGE Jarvis
DESIGNATED IMMIGRATION JUDGE Digney
For the Appellants: Mr J Eadie, QC (on 13 April 2011) and Mr M Blundell instructed by the Treasury Solicitor (first, third and fourth appeal)
Ms R Stickler instructed by N C Brothers & Co. (second appeal)
For the Respondent: Ms R Stickler instructed by N C Brothers & Co (first appeal)
Mr C Jacobs instructed by Howe & Co (third and fourth appeals)
Mr J Eadie, QC (on 13 April 2011) and Mr M Blundell instructed by the Treasury Solicitor (second appeal)
Pun and others (Gurkhas — policy — article 8) Nepal
(i) The policy in Chapter 29(4) of the DSP (subsequently replaced by the provisions of SET 12) relating to applications for settlement by adult dependants of former members of HM Forces sets out a true discretion to be exercised outside the Rules by the respondent and cannot reasonably be interpreted as setting out a number of different requirements where the fulfilment of one or more leads to an entitlement to a grant of entry clearance.
(ii) The policy creates a broad discretion to be exercised by the decision taker in the light of the individual facts and circumstances of each case taking into account but not limited to the identified bullet points. These serve to identify some factors which may be relevant whilst not excluding other factors which may depending on the facts of the case be equally relevant.
(iii) As a matter of principle an appellant is entitled to a decision on any appeal before the Tribunal and an article 8 appeal should not be adjourned or sent back to be re-made by the respondent where this course is resisted by the appellant unless there is a compelling reason for doing so. Where as in the present cases a human rights appeal is set in the context of the amendments to the Rules to deal with a particular historical issue and with specific published policies dealing with the approach to be taken in the case of adult dependants not falling within the Rules, a decision under article 8 will inevitably be informed by the provisions of the Rules and the policy.
(iv) If the Tribunal does determine an article 8 appeal when a decision under the policy is or would otherwise be sent back to the respondent, that appeal cannot be treated as a way for the Tribunal to exercise a discretion which under the policy is a matter for the respondent but must be determined in accordance with the guidelines set out by the House of Lords and the Supreme Court.
These appeals all concern applications for entry clearance made by adult dependent relatives of former members of the British Brigade of Gurkhas who have taken up their rights to settle in the UK. In this determination we will refer to the parties as they were before the First-tier Tribunal, the applicants as the appellants and Entry Clearance Officers as the respondents.
These appeals have been heard together as they raise common issues on the interpretation of the policy set out in Chapter 29(4) of the DSP referred to below subsequently replaced by the provisions of SET 12. On 13 April 2011 the Tribunal heard submissions on these issues and with the agreement of the parties we decided that the appropriate course would be to deal with those matters as a preliminary issue, send out our decision and then hear further submissions on the individual appeals.
Our decision on the preliminary issue was issued on 22 June 2011 and is as follows:
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“1. These appeals raise issues on the meaning and interpretation of the respondent's policy set out firstly in chapter 29.14 of the Diplomatic Service Procedures (DSP): Entry Clearance, Volume 1 General Instructions and the identically worded provisions of SET 12: Settlement Entry for Former Members of HM Forces and Their Dependants (SET 12). In this decision we will refer to the parties as they were before the First-tier Tribunal, the applicants as the appellants and the entry clearance officers as the respondent.
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2. The background to these policies lies in the changes to the Immigration Rules introduced in October 2004 providing for the grant of settlement to Gurkha soldiers with four years' service who retired from the British Army on or after 1 July 1997. DSP chapter 29 was issued at the same time to provide operational instructions to Entry Clearance Officers and to set out the policy to be followed in relation to dependants over the age of 18. Chapter 29 ceased to have effect in around February 2009 but a further policy (SET 12) was published in the same terms
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3. The core legal issue which arises in the present appeals is whether in circumstances where an Immigration Judge has made a finding that the respondent's decision under the policy was not in accordance with the law, he should direct the grant of entry clearance or remit the application to the respondent for a further decision. The issue put at its simplest is whether as the respondent argues para 29.14 creates a broad discretion which, as it is a discretion exercised outside the Immigration Rules, is one which must be exercised by the respondent and accordingly, when it is found that the decision is not in accordance with the law, the application must be remitted to the respondent for a lawful decision to be made or whether, as argued by the appellants, the terms of the policy create a presumption that leave will be granted if one or more of the bullet points set out in para 29.14 is met, when, if so, and if there is nothing to displace that presumption and nothing further to be considered, the appeal should be allowed in accordance with AG and others (Policies; executive discretions; Tribunal's powers) (Kosovo) [2007] UKAIT 82.
Para 29.14 provides as follows:
“It is not the intention to split a family unit solely because the 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 the settlement in the UK is appropriate the ECO 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 to grant entry clearance for settlement in the UK.”
Mr Eadie submitted that para 29.14 is plainly intended to create a broad discretion to be exercised by the respondent. It sets out a policy operating outside the Immigration Rules. The correct approach to ascertaining its effect was, he submitted, set out by the Tribunal in UR & Others (Policy; executive discretion; remittal) Nepal [2010] UKUT 480 (IAC). The core purpose of the policy was considered and the Tribunal held that it did not create a presumption of the kind that would make it appropriate for an immigration judge to allow the appeal outright and that the proper course was to remit for a fresh decision to be taken. He also referred to and relied on the Tribunal determinations in CT (Gurkhas: policy) Nepal [2011] UKUT 53 (IAC) and KG (Gurkhas – overage dependants – policy) Nepal [2011] UKUT 00117 (IAC). These authorities supported the proposition that no presumption was created simply by the fact that one or more of the bullet points was fulfilled. The fact that there remained a discretion was indicated by the wording of the policy itself i.e. the use of “may” in the paragraph before the bullet points and in the final sentence.
He argued that the content of the bullet points themselves indicated that there could be no such presumption. Each point covered a variety of possible factual scenarios. The first bullet point would include every single relative of persons present or settled or being granted or being admitted to settlement under the HM Forces Rule. It could not have been intended that the policy was to create a presumption on crossing this threshold. Bullet points 2 to 5 simply identified matters properly to be taken into account and the respondent could lawfully and rationally make a decision to refuse an application even if one or more of these conditions were met. If an ability to meet one or more of the bullet points led to the presumption of grant within AG (Kosovo ), there would be no scope for the respondent to take into account the kind of matters set out in Part 9 of the Rules such as an individual's dishonesty and criminal record.
He submitted that as with any policy a balance had to be struck between flexibility and the need to identify matters properly...
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