R (Limbu) v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | The Hon Mr. Justice Blake |
| Judgment Date | 30 September 2008 |
| Neutral Citation | [2008] EWHC 2261 (Admin) |
| Docket Number | Case No: CO/6373/2008 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 30 September 2008 |
[2008] EWHC 2261 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
The Hon Mr. Justice Blake
Case No: CO/6373/2008
CO/6374/2008
Mr. Edward Fitzgerald QC, Mr. Mark Henderson and Mr. Mark O'Connor (instructed by Howe & Co) for the Claimants
Mr. Steven Kovats (instructed by Treasury Solicitor) for the Defendants
Mr. Sharaz Ahmed (instructed by NC Brothers) for Interested Party
Hearing dates: 16 th and 17 th September 2008
Introduction:
There are before the court six applications for judicial reviews pursuant to leave granted in July 2008 by Sullivan J. Five of the Claimants are veterans of the Brigade of Gurkhas and one is a widow of such a veteran. Each has applied for entry clearance to come to the United Kingdom for settlement here on the basis of past military service with the Crown. In each case this service came to an end before the 1 st July 1997. Each has been refused entry clearance on various dates between December 2006 and February 2007 and each appealed to the Asylum and Immigration Tribunal (AIT) on the basis that the decision was not in accordance with the law and in particular was contrary to the Human Rights Act 19981. These applications were representative of a number of similar such applications where appeals against refusals of entry clearance had been lodged with the AIT. These cases were in due course selected as lead cases for the appeal by way of test case.
It is common ground that none of these Claimants can comply with the new Immigration Rules for Gurkha veterans promulgated in October 2004 and forming paragraphs 276E to 276K HC 395 as amended. This is primarily because they were not discharged after 1 st July 1997 as required by rule 276F (ii). Further their applications for entry clearance were not made within 2 years of their discharge as required by rule 276F (iii). Their complaint is not therefore concerned with the operation of the Immigration Rules as such, which are usually prospective in effect and there would be nothing inherently unfair or irrational in requiring applications for settlement to be made within two years of the completion of the qualifying service. However at the same time as these Immigration Rules were promulgated the Government recognised that some element of retrospective provision was considered appropriate in the particular circumstances of these veterans and this was to be achieved by two publicly available operational instructions to Entry Clearance Officers. The first is not of present concern and provides a period now expired in which those who had been discharged after 1 st July 1997 but before the Rules came into effect to make the application for settlement that they had previously had no opportunity to make.
The second is central to the present application for judicial review. It is to be found in the Diplomatic Service Procedures (DSP): Entry Clearance Volume 1 General Instructions. Chapter 29 of these instructions is entitled “Settlement entry for former members of HM Forces and their dependants”. Chapter 29.4 is in the following terms:-
“29.4 Discretion-Gurkhas
In addition to the discretion exercised during the transitional period, discretion may also be exercised by ECOs in individual cases where an applicant dos not meet the requirement of discharge from the British Army in Nepal after 1 st July 1997, or discharge not more than 2 years prior to the date of application. Discretion may be exercised to waive these requirements in cases where there are strong reasons why settlement in the UK is appropriate. For example, consideration should be given to the following factors:
- Strength of ties with the UK- have they spent a significant amount of time living in the UK, such as a three year tour of duty pre-discharge or 3 years living in the UK after discharge?
- Do they have any close family living in the UK? What proportion of their close family are in the UK as opposed to living in Nepal?
- Do they have children being educated in the UK?
- Do they have a chronic/long-term medical condition where treatment in the UK would significantly improve quality of life?
If one or more of the factors listed above are present, ECOs may exercise discretion and grant entry clearance for settlement in the UK.
Close family means immediate family, such as brothers, sisters, children, parents or grandparents.
The requirements for an applicant to have completed at least four years service as a Gurkha with the British Army and to have been discharged on completion of their engagement should not be waived”.
(Emphasis supplied)
Each of the Claimants was refused entry clearance by notices stating that they did not meet one or more of the terms of the discretionary policy. It is a disputed issue as to whether the ECOs in addition went on to consider any discretion that the policy may have afforded them despite the fact that one or more of the qualifying conditions was not present. None of the factors relied on by the various Claimants including length of service in the Brigade of considerably more than four years, residence in the United Kingdom for over two years during service, being wounded in action, fighting in the Falklands Islands or being the recipient of awards for bravery was considered sufficient for the favourable exercise of discretion. In the light of the issues before the court a recital of the individual circumstances of the Claimants is not necessary.
It is of considerable relevance that there are instructions for waiver of the Rules relating to foreign and Commonwealth citizens discharged from HM Forces other than Gurkhas. They are in substantially the same terms as the discretion for Gurkhas (see DSP para 29.7). The Immigration Rules for such foreign and Commonwealth soldiers were promulgated at the same time as those relating to Gurkhas but those Rules have no provision equivalent to rule 276F (ii) imposing a requirement of discharge after 1 st July 1997 and accordingly there was no need for instructions about waiver of this provision. The Claimants however point to the existence prior to 2004 of a sequence of concessions operated by the Home Office outside the rules known as the Armed Forces Concession (AFC). The AFC seems to have dated back to 1980 at least, and has been re-issued periodically thereafter in broadly the same terms. The version for 1987 reads as follows:
“On leaving the armed forces, a person without the right of abode will be asked in his letter of discharge to send his passport to the Home Office. A copy giving his private address will be sent to the Home Office. If his passport is not received within three weeks he should be informed in writing that he is no longer entitled to exemption from the terms of the Act which he enjoyed whilst enlisted and be told to submit his passport and regularise his position.
Four years service by those without the right of abode may count as approved employment for the purposes of any application for indefinite leave.
Those who serve less than four years should be advised to bring themselves within the terms of the Rules if they wish to remain. Where such a person is granted a limited leave to remain he has a right of appeal under section 14(2) against the decision to limit the leave. APP 109A should be used.
For the purposes of this instruction, persons locally enlisted abroad should not normally be regarded as serving in the 'Home Forces'.”
It will be seen from this document, promulgated by the Home Office in the context of how immigration discretion should be exercised, that those members of Her Majesty's forces who did not have the right of abode in the United Kingdom could acquire indefinite leave to remain on discharge after four years service. The AFC makes no reference to those who served in the Brigade of Gurkhas but as the policy presumes that the soldier will have been discharged in the United Kingdom and that was not the practice for Gurkhas at the relevant time, it is common ground that it never applied to them. As a policy document from the Home Office explained in January 1997:
“Gurkhas are members of the home forces within the meaning of the 1971 Act. They are therefore exempt from control; when entering/remaining in the United Kingdom.
On discharge, however, Gurkhas have no claim to receiving indefinite leave to enter/remain in the United Kingdom. Neither can they claim to have “voluntarily adopted”residence in the United Kingdom during their posting here as members of the home forces.”
On the face of it therefore, the similar considerations marked out by the DSP instructions for consideration of discretionary claims outside the rules by Gurkhas and other soldiers who were not British citizens masks a substantial inequality in practice. Gurkhas were never able to claim indefinite residence in the United Kingdom on the basis of their military service however long and gallant it may have been. Foreign and Commonwealth soldiers who did not have the right of abode and who served in the British Army had, since 1980 at least, been able to obtain indefinite residence simply on completion of four years military duty irrespective of the precise length and quality of their service or the amount of time they actually spent in the United Kingdom. All that had...
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