Upper Tribunal (Immigration and asylum chamber), 2010-12-06, [2010] UKUT 480 (IAC) (UR and others (policy;executive discretion;remittal))
| Jurisdiction | UK Non-devolved |
| Judge | Mr R A McKee, Mr Justice Owen J |
| Status | Reported |
| Date | 06 December 2010 |
| Published date | 26 January 2011 |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Hearing Date | 27 October 2010 |
| Subject Matter | policy;executive discretion;remittal |
| Appeal Number | [2010] UKUT 480 (IAC) |
Upper Tribunal
(Immigration and Asylum Chamber)
UR and others (policy; executive discretion; remittal) Nepal [2010] UKUT 480 (IAC)
THE IMMIGRATION ACTS
Heard at: Field House
On: 27 October 2010 Determination promulgated
Before
Mr Justice Owen
Senior Immigration Judge McKee
Between
Entry Clearance Officer, New Delhi
And
UR
YR
KR
Representation:
For the Appellant: Mrs T.Sharland, Specialist Appeals Team
For the Respondents: Mr K. Owusu, instructed by Bishop, Lloyd & Jackson
While in rare cases a policy may be expressed in such absolute terms that, on the facts as found, an appeal may be allowed outright under the policy, this should not be confused with the general intention which appears to lie behind the policy. Thus, a policy which allows overage children to be reunited with a settled sponsor in certain circumstances, and whose purpose may appear to be the avoidance of the ‘stranded sibling’ phenomenon, should not be taken to mean that, in most cases, entry clearance will be granted to overage children. Apart from anything else, the policy may have been more loosely drafted than an immigration rule, and the discretion which it imports ought to be exercised by the respondent at first instance.
DETERMINATION and REASONS
1. These three conjoined cases have come before the Upper Tribunal on an appeal against part of the determination of Immigration Judge M.J. Gillespie, promulgated on 28 July 2010. The appeal is brought on behalf of the Entry Clearance Officer, who was the respondent at first instance. Although the roles of appellant and respondent are now reversed, it will be convenient if we continue to refer to the three applicants for entry clearance as ‘the appellants’ and to the ECO as ‘the respondent’.
2. On 21 December 2009 the respondent refused the applications of the three appellants as the dependent, but overage, children of the sponsor, UR, a former member of the Brigade of Gurkhas who obtained indefinite leave to enter the United Kingdom in 2006 under rule 276E-K of the Immigration Rules. He left behind a wife and six children in Nepal. Two of those children are now married and leading independent lives, but applications were made for the sponsor’s wife and the other four children to join him in this country. His wife and one of the children were granted indefinite leave to enter ( it is unclear whether this was under rules 281 and 297 of the Immigration Rules as the spouse and minor child of a person settled here, or under rules 276S-Z as the spouse and minor child of a foreign citizen discharged from HM Forces). At any rate, the applications of the three remaining children, who were over 18, were considered under rule 317, which is for ‘ordinary’ applications by the overage children of settled persons. The applications could not in any event have succeeded under rules 276X-Z as the children of a discharged Gurkha, because those rules pertain only to children below the age of 18.
3. When the appeals came before Immigration Judge Gillespie, he believed that the consideration of the applications under rule 317 was misconceived, and that the applications should have been considered under rule 276X. He proceeded to consider the requirements of rule 276X for himself, and concluded that the appellants could not meet those requirements. As one of the requirements was that the applicants be aged under 18, that conclusion was inevitable. We do not think that the ECO was wrong to consider the applications under rule 317, this being the only immigration rule under which children over the age of 18 can be admitted for settlement. Nothing turns on this, however, as it has not been argued before us that the appellants ought to succeed under rule 317.
4. The ECO went on to consider the applications under what he thought to be the relevant policy outside the Immigration Rules. In his written reasons for refusing the applications, which are in identical terms for all three appellants, he cites ‘the Secretary of State’s policy for dependants over the age of 18 of foreign and Commonwealth HM Forces members.”. This policy is referred to in the Explanatory Statement prepared on 2 March 2010, after notice of appeal had been received at the High Commission. It is cited as Chapter 15 of the ‘Immigration Departmental Instructions’ (we assume that the Immigration Directorates’ Instructions are meant), under which “discretion may be exercised in exceptional circumstances by ECOs in individual cases where there are strong reasons for doing so” (emphasis in the original). The quotation in the Explanatory Statement is taken verbatim from paragraph 13.2 of Section 2A of Chapter 15 of the IDIs, which deals with settlement applications under the HM Forces rule. Paragraph 13.2, on ‘dependants over the age of 18’, states that such dependants will normally have to apply for settlement under one of the Immigration Rules, save in exceptional circumstances. This focus on exceptional circumstances would explain why, in his reasons for rejecting the applications under the policy, the ECO says this:
“You have not provided details of exceptional circumstances in your case that should, over and above the consideration within the Immigration Rules, lead to your application being successful. All the evidence points to this application being unexceptional. … The Rules take account of the presence of a parent and that factor on its own I do not regard as determinative, particularly because of the need for there to be exceptional circumstances.”
5. Immigration Judge Gillespie thought that the ECO had looked at the policy relating to the overage children of ex-soldiers and had misapprehended it. It seems likelier to us that the ECO was not looking at the policy which the judge was looking at. That policy is to be found in a document entitled ‘SET 12 – Former members of HM Forces & families’, last updated on 25 June 2009. SET 12.16 poses the question ‘Can dependants over the age of 18 apply for settlement?’, and answers it as follows:
“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 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 and grant entry clearance for settlement in the UK.”
6. We pause here to observe two things. First, the policy on overage dependants set out at Chapter 15 of the IDIs is much less generous than the policy set out in SET 12, which is not in the IDIs and is described as ‘internal guidance for use by entry clearance staff’ (although the IDIs are also internal guidance for UKBA staff). The relationship between Chapter 15 and SET 12 is quite unclear. Secondly, the factor set out at the first of the bullet points in SET 12 seems curiously out of place. It is a factor equally applicable to the spouses and minor children of discharged soldiers, who can qualify for entry clearance under the Rules, rather than under a discretionary policy, if they have a sponsor (an ex-soldier) present and settled in the UK. Yet the discretion can be exercised favourably, so the policy says, if only that one factor is present. That might appear to blur the distinction between the minor and the overage children of a retired member of HM Forces.
7. When SET 12.16 was examined by the judge below, he considered that not only the first factor but also the fourth was engaged in the present appeals, in that the appellants “are financially dependent upon their parents in the United Kingdom and, if refused entry, would be living outside the United Kingdom with no other family members to whom they could turn for financial support.” We note that one word has been omitted here from the fourth bullet point, namely ‘alone’. The policy on its face envisages ‘the applicant’ living alone outside the UK. It says nothing about the situation where, as here, several applicants are living together.
8. The judge found that the relevant policy had not been properly applied in the instant cases, and therefore that the refusals of entry clearance were not in accordance with the law. That is not in dispute before us. What...
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