KR (Nepal) & Ors v Secretary of State for the Home Department

All of these cases concern the children of Gurkhas, by definition from Nepal, who served in Her Majesty’s forces, who were for a considerable period refused entry into the United Kingdom, who have achieved the right of entry and exercised the right of re-entry. Children of theirs now seek to come into this country to be in the same country as them, to put it as neutrally as possible, essentially on the basis of Article 8 and what is referred to as the “historic injustice” meted to the Gurkhas, who served with some considerable courage and more in the forces but were for a considerable period refused entry to live in the United Kingdom.

All of the cases have a number of points in common. There is the point raised by Mr Drabble as to the lawfulness of the latest of the policies formulated by the Secretary of State in order to decide whether or not entry should be given essentially to members of a family, particularly adult members of the family, and what criteria should apply. As far as that is concerned, there is already an appeal going to the Court of Appeal on whether the policy is sufficiently clearly defined as to be a lawful. Permission to argue that issue before the Court of Appeal has been given, and the matter will be decided one way or the other by the Court of Appeal.

It seems to me that it would be quite wrong to shut out any of the applicants who seek to raise that issue or whose appeal involve that issue from permission to appeal. How the appeal should go forward is a question which I would consider, if my Lord, Lord Justice Rix, agrees with me in due course.

There is a second issue which is common to some of the present cases, and that is whether the so-called historic injustice is a matter to be taken into account under Article 8, and if so what weight is to be given to it in deciding on the lawfulness of a decision made by the Secretary of State, which falls to be considered under Article 8. Also there are two appeals, I think, in which it is said that the Upper Tribunal erred in confining Article 8.1 in a way so as to exclude the applicant.

It seems to me that certainly the issue as to the historic injustice and its relevance is an important point of principle, having regard to the fact that there are conflicting decisions below which ought to be considered by the Court of Appeal. The issue raised by Mr Drabble as to the lawfulness of the policy is already going to be before the Court of Appeal, and in those circumstances it seems to me that all of these cases should have the benefit of permission to appeal. We will consider in a moment how those permissions should be carried forward.

I agree.