R (Gurung and Others) v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Master of the Rolls |
| Judgment Date | 21 January 2013 |
| Neutral Citation | [2013] EWCA Civ 8 |
| Docket Number | Case No: C4/2012/1578, C5/2012/0795, C5/2012/1091, C5/2012/1199, C5/2012/0795, C5/2012/1264, C5/2012/1377 & C5/2012/1774 |
| Court | Court of Appeal (Civil Division) |
| Date | 21 January 2013 |
[2013] EWCA Civ 8
IN THE COURT OF APPEAL (CIVIL DIVISION)
(C4/2012/1578) ON APPEAL FROM THE HIGH COURT OF JUSTICE, QUEEN'S BENCH DIVISION, ADMINISTRATIVE COURT
MR JUSTICE EADY
CO34632011
(C5/2012/0795, C5/2012/1091, C5/2012/1199, C5/2012/0795, C5/2012/1264, C5/2012/1377 & C5/2012/1774) ON APPEAL FROM THE UPPER TRIBUNAL (IMMIGRATION AND ASYLUM CHAMBER
THE UPPER TRIBUNAL
OA114142011, OA228742010, OA268882012OA2689020, IA183892011, OA146152010/14617, IA097542011, IA235152011
Royal Courts of Justice
Strand, London, WC2A 2LL
The Master of the Rolls
Lord Justice Sullivan
and
Lord Justice Patten
Case No: C4/2012/1578, C5/2012/0795, C5/2012/1091, C5/2012/1199, C5/2012/0795, C5/2012/1264, C5/2012/1377 & C5/2012/1774
(C4/2012/1578)
Mr Richard Drabble QC and Mr Christian Howells (instructed by Messrs N.C. Brothers & Co) for the Appellant
Ms Cathryn McGahey (instructed by The Treasury Solicitor) for the Respondent
(C5/2012/0795)
Mr Richard Drabble QC and Mr Christian Howells (instructed by Messrs N.C. Brothers & Co) for the Appellant
Ms Cathryn McGahey (instructed by The Treasury Solicitor) for the Respondent
(C5/2012/1091)
Mr Richard Drabble QC and Mr Christian Howells (instructed by Messrs N.C. Brothers & Co) for the Appellant
Ms Cathryn McGahey (instructed by The Treasury Solicitor) for the Respondent
(C5/2012/1199)
Raphael Jesurum (instructed by Howe & Co) for the Appellant
Ms Cathryn McGahey (instructed by The Treasury Solicitor) for the Respondent
(C5/2012/0975)
Mr Richard Drabble QC and Mr Christian Howells (instructed by Messrs N.C. Brothers & Co) for the Appellant
Ms Cathryn McGahey (instructed by The Treasury Solicitor) for the Respondent
(C5/2012/1264)
Mr Zane Malik and Mr Darryl Balroop (instructed by Bishop Lloyd Jackson) for the Appellant
Ms Cathryn McGahey (instructed by The Treasury Solicitor) for the Respondent
(C5/2012/1377)
Mr Richard Drabble QC and Mr Christian Howells (instructed by Messrs N.C. Brothers & Co) for the Appellant
Ms Cathryn McGahey (instructed by The Treasury Solicitor) for the Respondent
(C5/2012/1774)
Mr Christopher Jacobs (instructed by Howe & Co) for the Appellant
Ms Cathryn McGahey (instructed by The Treasury Solicitor) for the Respondent
Hearing dates: 11 & 12 December 2012
Master of the Rolls: this is the judgment of the court.
These appeals concern the lawfulness of the refusal of entry clearance to the dependant adult children of veterans of the Gurkha Brigade who have settled in the UK. For the purpose of the Immigration Rules ("the Rules") and the policies issued by the Secretary of State for the Home Department ("SSHD"), a Gurkha is a national of Nepal who has served in the British Army under the Brigade of Gurkhas' terms and conditions.
Relevant Rules and Policies
For many years, Gurkha veterans were treated less favourably than other comparable non-British Commonwealth soldiers serving in the British army. Although Commonwealth citizens were subject to immigration control, the SSHD had a concessionary policy outside the Rules which allowed such citizens who were serving and former members of the British armed forces to obtain on their discharge indefinite leave to enter and remain in the UK. Gurkhas were not included in this policy. They were therefore not entitled to settle in the UK.
In 2004, the British Government agreed to change this policy. The SSHD issued a press release in 2004 which paid tribute to the bravery of the men of the Gurkha Brigade and their unquestioning loyalty to Her Majesty the Queen. He said:
"I am very keen to ensure that we recognise their role in the history of our country and the part they have played in protecting us. That is why we have put together the best possible package to enable discharged Gurkhas to apply for settlement and citizenship. I hope that the decision I have made today will make our gratitude clear. Those high military standards have been mirrored by their demeanour in civilian life. Their families too have shown devotion and commitment by travelling across continents to support the Brigade."
Accordingly, in October 2004, Immigration Rules 276E to K were introduced to enable Gurkha veterans with at least 4 years' service, who had been discharged from the armed services within the past 2 years, to apply for settlement in the UK. But only Gurkhas who had been discharged on completion of engagement on or after 1 July 1997 were eligible to apply. The rationale for this restriction was that in July 1997 the Brigade of Gurkhas moved its headquarters from Hong Kong to the UK, so that after that date Gurkhas would have had the opportunity to develop close physical ties with the UK.
But at the same time, the SSHD introduced a policy outside the Rules under which Gurkhas were permitted to settle in the UK even if they had been discharged before 1 July 1997 and/or more than 2 years prior to the date of application, if there were strong reasons why settlement in the UK was appropriate in the particular case by reason of the individual's existing ties with the UK. Entry clearance guidance was contained in the Diplomatic Service Procedures Chapter 29 para 14 ("DSP29.14"). This was replaced in January 2009 by the Settlement Entry Clearance Guidance, Chapter 12 para 16 ("SET12.16"). The two paragraphs were in identical terms and applied to the dependants of all former members of HM Forces (including Gurkhas). SET12.16 remained in force until September 2010, since when the only relevant policy document has been the Immigration Directorates' Instructions ("IDI") referred to at para 10 below.
Both of these earlier policies included the following:
"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, consideration should be given to the following factors:
• One parent or a relative of the applicant is present and settled or is 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 study in the UK;
• Refusal of the application would mean that the applicant would be living alone outside the UK and is financially dependant 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 parents or close relatives in the UIK.
If one or more of the factors listed above are present, discretion may be exercised and settlement granted in the UK."
In June 2009, the SSHD announced that any Gurkha with more than 4 years' service who had been discharged before 1 July 1997 would be eligible for settlement in the UK under the terms of a discretionary policy set out in IDIs, Chapter 15, Section 2A, section 13.2, Annex A. Section 2A of Chapter 15 was entitled "Persons seeking settlement: HM Forces". It dealt with applications from both Gurkhas and foreign and Commonwealth nationals who were seeking settlement in the UK on discharge from HM Forces. It also contained provisions relating to the dependants of Gurkhas. Section 13.2 provided:
"Dependants over the age of 18 of foreign and Commonwealth HM Forces members (including Gurkhas) who are not otherwise covered in this guidance would normally need to qualify for settlement in the UK under a specific provision of the Immigration Rules.
However, settlement applications from dependants over the age of 18 who are the children of serving foreign and Commonwealth HM Forces members (including Gurkhas) who meet the requirements of a parent should normally be approved, provided the dependant has previously been granted limited leave to enter or remain in the UK as part of the family unit and they wish to continue to reside and be educated in the UK.
In exceptional circumstances discretion may be exercised in individual cases where the dependant is over the age of 18.
• one parent or 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 study 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 rules;
• The applicant would find it very difficult to function because of illness or disability without...
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