This is an appeal about the circumstances in which the adult dependants of Gurkhas who have been granted indefinite leave to enter the UK as a Gurkha discharged from the British Army may themselves be granted indefinite leave to remain in order to settle in this country within the family unit. Whilst therefore the case inevitably raises issues connected with this country’s unquestioned debt of gratitude for generations of loyal and distinguished service by the Gurkhas, it is important to note from the outset that the arrangements under consideration are equally applicable to the dependants of all foreign and commonwealth nationals who seek settlement in the UK on discharge from HM Forces.

The arrangements in question constitute Entry Clearance Guidance intended to inform the exercise of a discretion to grant entry clearance in circumstances which would not justify the grant of clearance under the Immigration Rules. That guidance was originally contained in Chapter 29 of the Diplomatic Service Procedures Entry Clearance, Volume 1, General Instructions published in December 2007. Chapter 29 was concerned with “settlement entry for former members of HM Forces and their dependants”. Various paragraphs of the chapter are relevant only to Gurkhas, their widows or dependants. The relevant paragraph, paragraph 29.14, is of general application. It reads as follows:-

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.

As from 25 January 2009 and until September 2010 this guidance was superseded by “SET 12: Settlement Entry for former members of HM Forces and Families”. This document contained “internal [Home Office – UK Border Agency] guidance for use by entry clearance staff on the handling of settlement in the United Kingdom applications made outside the United Kingdom” (sic). This document is in very different form from the 2007 Guidance but paragraph 12.16 is identical to paragraph 29.14 of the earlier document, save only that its heading is “Can dependants over the age of 18 apply for settlement?”

We are concerned with applications for Entry Clearance made in 2007 and 2009. It is not suggested that the policies in force at the relevant times are to be any differently construed or approached. At the hearing counsel looked at the 2007 Guidance in its then context and I will do the same.

NT and RM are brother and sister. Their father served with the Brigade of Gurkhas for fourteen years. In August 2009 he was granted indefinite leave to enter and remain in the UK on the basis of that service and he travelled to the UK in February 2010. In October 2009 NT and RM applied for Entry Clearance. NT was born on 8 June 1987 and was then 22. RM was born on 28 December 1989 and was then 19. Both said that they were students in Nepal. The Entry Clearance Officer was not satisfied that the sister was genuinely studying in Nepal. His assessment of the evidence was that neither sibling showed dependence on their father and it was not apparent either that their father was paying their student fees or that he was in a position to support them financially. The Entry Clearance Officer was not satisfied that the evidence showed that either sibling would be living alone if not admitted to the UK. However, the ECO did not consider the applications, as he should have done, under the policy guidance set out in SET 12.16.

On appeal to the First-tier Tribunal (Immigration and Asylum Chamber) it was concluded that the wrong policy had been applied. The decision was therefore “not in accordance with the law” – Nationality Immigration and Asylum Act 2002, section 84(1)(e), that being one of the grounds on which an appeal under s.82 may be brought. It is unclear whether Immigration Judge Verity had before her evidence which went beyond that placed before the ECO, but she expressed her factual conclusions as follows:-

The finding concerning education involves a misreading of bullet point 3, which requires an applicant to have been taking a course of study in the UK and to wish to continue his or her education in the UK. However Immigration Judge Verity had in addition found that bullet points 1 and 4 were satisfied. The Secretary of State contended that in these circumstances the applications should be remitted to the ECO in order for him to exercise his discretion under the correct policy.

The Appellants submitted and Judge Verity accepted that the policy creates a presumption that a family will not be split solely because of the majority of a dependant, provided that the dependant can show that one or more of the factors identified in the five bullet points is applicable to him. She regarded the policy as one which must be “regarded as absolute in the individual facts of the case”, an expression which she derived from a decision of the Asylum and Immigration Tribunal in SS (2005) UKAIT 0016, the complete relevant passage from which reads:-

In these circumstances Judge Verity acceded to the submission by the Appellants that the consequence of her finding that the decision of the ECO was not in accordance with the law and that one or more of the bullet points was satisfied was not simply that the application remained outstanding but rather that there should without remission be a substantive decision in the Appellants’ favour. This approach was, she decided, justified in the light of the following passage from the decision of the Asylum and Immigration Tribunal in AG and Others (Policies; Executive Discretions; Tribunals Powers) Kosovo [2007] UKAIT 00082. After citing the passage from SS, which I have set out above, the Asylum and Immigration Tribunal continued:-

Judge Verity concluded:-

On appeal by the Secretary of State to the Upper Tribunal Senior Immigration Judge Waumsley held that IJ Verity had been wrong in her conclusion that the policy is stated in absolute rather than discretionary terms and wrong to conclude that satisfaction of one or more of the bullet points gave rise to a presumption. SIJ Waumsley concluded that the discretion to be exercised was that of the ECO rather than of an Immigration Judge, that exercise being open to challenge in appropriate cases on classic public law grounds. SIJ Waumsley therefore set aside IJ Verity’s decision. He substituted therefor his own decision that the refusal by the ECO of their entry clearance applications was not in accordance with the law, the ECO not having applied the appropriate policy, and that such applications therefore remained outstanding before the ECO.

I can deal much more shortly with YP’s case since her application has followed a similar course. YP was born on 18 December 1983. Her father retired from the Brigade of Gurkhas in 1987. YP is a daughter of her father’s first marriage, his first wife having died in 1996. Following remarriage her father was granted settlement in 2006 and now lives in Wales with his second wife and their two minor children. YP applied for Entry Clearance in, I think, 2009, when she was 25. She is now 28. Entry Clearance was refused on 12 January 2010. The ECO was not satisfied that YP had shown that she was financially dependent on her father or that her father was able to support her. He was not satisfied that she was still enrolled on a course of study. However on this occasion too the ECO approached the application by reference to the wrong policy, that appropriate to in-country applications only. That policy required proof of exceptional circumstances.

YP’s appeal to Immigration Judge Gillespie was successful. IJ Gillespie found that she was a student in Nepal, financially dependent upon her father and step-mother within the UK who, if refused entry to the UK, would be living alone in Nepal. IJ Gillespie allowed the appeal and directed the grant of entry clearance on precisely the same basis as had IJ Verity in the earlier case. He too found that the policy is to be regarded as absolute in the individual facts of the case. Like IJ Verity, he observed, at paragraph 12 of his determination:-

The Secretary of State’s appeal to the Upper Tribunal was again successful. Senior Immigration Judge McKee rejected the submission that satisfaction of one or more of the bullet points gives rise to a presumption, observing, correctly in my view, that if that were right then bullet points 2-5 are completely redundant. SIJ also observed that the policy involves the exercise of a discretion which it is for the ECO to carry out. He too remitted the matter to the ECO to make a lawful decision under the relevant policy.

In the cases of NT, RM and YP the appeal to this court is brought upon the ground that satisfaction of one or more of the five bullet points set out in the policy creates a presumption that entry clearance will be granted to dependants over the age of 18. In each case it is said that entry clearance should without more be granted if there is nothing under the terms of the policy or no evidence is produced by the Secretary of State to displace that presumption.

UG’s case is different although the issue for decision by this court is ultimately the same. UG’s father is a former Gurkha who came to the UK as a visitor with his wife in September 2006 and was in October that year granted indefinite leave to remain. His daughter UG was born in 1980. She applied for entry clearance in May 2007 by which time she was 27. In March 2008 her application was refused. On this occasion the ECO applied the correct policy, Entry Clearance Guidance paragraph 29.14. However the ECO regarded it as relevant that UG had not applied for Entry Clearance until seven months after her parents had been granted indefinite leave to remain. On this basis, and in the light of the evidence available, he was not satisfied that she was not leading an independent life. Nor was the ECO satisfied that UG was financially dependent upon her father.

The refusal of Entry Clearance was upheld on appeal by Immigration Judge Hall. In the First-tier Tribunal attention appears to have again been focused upon a policy requiring proof of exceptional circumstances rather than upon ECG paragraph 29.14. IJ Hall found an absence of exceptional circumstances but he also found that no family life had been shown to exist.

In the Upper Tribunal Designated Immigration Judge Wilson correctly focused upon ECG paragraph 29.14. He accepted for the purposes of the appeal that UG is financially dependent upon her father. He accepted that as at the date of her application she was living in student accommodation on campus and that she had not established a separate household. However the DIJ also concluded that the family unit had already been separated. In such circumstances the policy was inapplicable. He therefore upheld the refusal of Entry Clearance.

Permission to appeal to this court was given to UG on the issue whether or not the family unit must be regarded as split by reason of separation. The policy presupposes that the family unit will have been separated with at least the former member of HM Forces settled in the UK and adult dependants applying to join him from outside the UK. Before the hearing of this appeal the Secretary of State conceded that an incorrect approach had been taken. A seven month period of separation from family members settled in the UK cannot of itself disentitle an applicant from favourable consideration under the policy. Whilst initially suggesting that UG’s case should be remitted to the Upper Tribunal, by the end of the hearing it was the position of the Secretary of State that her case too should be remitted to the ECO for a lawful decision under the policy. UG’s grounds of appeal again suggest that satisfaction of one or more of the bullet points creates a presumption and that in the absence of reasons to rebut that presumption indefinite leave to remain should be granted. In the light of the limited basis (“for the purposes of this appeal”) upon which DIJ Wilson made his exiguous findings of fact that was in this case a particularly ambitious approach.

It was the position of Mr Richard Drabble QC for all four appellants at the outset of this appeal that the policy creates a presumption that entry clearance will be granted to dependants over the age of 18 if they satisfy one or more of the five factors identified in the bullet points. That construction was said to be mandated by three considerations:-

The content and purpose of the policy;

A concession purportedly made by the Secretary of State as to how the policy should be interpreted; and

Legal certainty.

In view of the significant change in the Appellant’s case Mr Gerard Clarke, for the Secretary of State, with the encouragement of the court, sought an adjournment to seek instructions in the light of the revised approach urged upon the court. When the matter came back before us Mr Clarke maintained his argument that the policy is discretionary rather than absolute, a conclusion underpinned by the arguments marshalled on paper for the earlier occasion in order to rebut Mr Drabble’s submissions based on purpose, the alleged concession and certainty. The purpose of the policy is, he submitted, to recognise military service, noting that that is service by all foreign and commonwealth service personnel, and to avoid the phenomenon of the “stranded sibling”, whose parents and younger siblings have all gone to the UK, leaving him alone in his own country. This latter aspect of the purpose underlying the policy was identified, correctly in my view, by the Upper Tribunal composed of Owen J and SIJ McKee in UR and Others (Policy; executive discretion, remittal) Nepal 2010 UKUT 480 (IAC) at paragraph 13. Whilst the discretion afforded by the policy was, submitted Mr Clarke, to be exercised rationally and by reference to the above-mentioned policy objectives, it was nonetheless a discretion to be exercised by the ECO upon the basis of his rounded evaluation of the circumstances in each case. The approach was not to be a mechanistic one of the “checklist” or “tick box” variety. The task of the ECO is to assess whether settlement in the UK is appropriate and in order to make such an assessment the ECO must necessarily consider the nature and quality of the association with the UK and the level of family dependency. Mr Clarke pointed out that facts which of themselves resulted in an applicant being able to satisfy the decision maker that one or other of the bullet points is engaged might not in fact incline towards the grant of entry clearance. Thus, as he put it in his written argument:-

“Under the second bullet point, the ECO must be allowed rationally to assess whether previous visits, and the circumstances and nature of those visits, have created the sort of connection with the UK that justified settlement. The mere fact of previous visits need not automatically lead to the grant of entry clearance. Take, for example, a case where the previous leave to enter the UK had been for a short duration and/or long ago.

Under the third bullet point, the Respondent submits that, as a matter of construction, this should require the Applicant to have been taking a course in the UK and to wish to continue his or her education in the UK subsequent to settlement being granted to a relative on whom the Applicant is dependent. It should not be sufficient for an Applicant to have been taking a course overseas and wish to take a further course in the UK.

Suppose, for example, a case in which the applicant wishes to continue education in the UK by taking only a brief course. The bullet point factor is present, but the ECO could rationally conclude that settlement is not appropriate.

Under the fourth bullet point, suppose a case in which an adult has long been independent, although maintaining normal family ties, but has lost their job or gone back to college, and is temporarily dependent on family funding. The ECO could rationally conclude that in this adventitious circumstance settlement was not appropriate.

It might perhaps be rarer for cases that come within the fifth bullet point to lead to an exercise of discretion to refuse entry, but if the need for support from the settled relative was only temporary, consequent upon a short term illness, then discretion could rationally be exercised to refuse entry. The use of ‘very difficult’ would indicate more than inconvenience or limited discomfort.

I accept Mr Clarke’s submissions. They accord with the decision of the Upper Tribunal composed of Senior Immigration Judges Latter and Jarvis and DIJ Digney in Dik Prasad Pun and Others (Gurkhas – policy – Article 8) Nepal 2011 UKUT 00377. That tribunal observed:-

The “concession” upon which Mr Drabble relied was one made in R (Limbu) v SOSHD [2008] EWHC 2261 Admin by Mr Steven Kovats before Blake J. It concerned paragraph 29.4 of the Entry Clearance Guidance, not paragraph 29.14. Paragraph 29.4 is concerned with Gurkha soldiers themselves, not their family members. In particular, it concerns applications for settlement in the UK by those discharged from the Brigade of Gurkhas before 1 July 1997 or by those who have failed to make their application not more than two years after their discharge. This paragraph is superficially similar in structure to paragraph 29.14 in that it contains a list of four bullet points followed by the same sentence as in paragraph 29.14, thus:-

Strength of ties with the UK – have they spent a significant time living in the UK, such as a 3-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?

Mr Drabble was insistent at the second hearing that he had not abandoned his argument to the effect that satisfaction of one or more of the criteria set out in bullet points 2-5 created a presumption in favour of entry clearance but rather had sought to make some sense of its content. He did so no doubt so as to bolster his argument that the appeals should be disposed of in the same manner as had been that in AG (Kosovo). It is important therefore to be clear that the reasoning in paragraphs 50 and 51 in AG (Kosovo) is dependent upon a showing that a policy is couched in absolute terms where satisfaction of certain criteria can properly be said to give rise to a presumption in favour of application of the policy. The present policy is in markedly different terms and the approach in AG (Kosovo) is correspondingly inapplicable. The policy confers a discretion upon the ECO, the exercise of which must be informed by the objectives of the policy and must be rational, but it is not otherwise constrained. There is a balance to be struck. The ECO is entitled to pursue lines of enquiry ranging beyond the matters encapsulated in the bullet points. Nominal or even substantial satisfaction of those criteria is not of itself determinative of the critical issue whether settlement in the UK is appropriate, as is rendered obvious by a consideration of the circumstance that absence of relevant criminal convictions is not mentioned.

There is in my judgment an additional reason why it is wholly inappropriate that this court should direct the grant of entry clearance. In none of these cases has it ever yet been regarded by the ECO as relevant to consider the quality and nature of the circumstances which are said to militate in favour of settlement. In three of the cases the ECO was looking rather for exceptional circumstances. In UG’s case the enquiry was coloured by an incorrect approach to the severance of the family unit.

In consequence, as the cases have progressed through the tribunals, attention has been focused upon matters which are of no relevance to the outcome of the applications. In the first three cases the Secretary of State was confronted with an argument that bare nominal satisfaction of one of the criteria gave rise to a presumption, an argument which ultimately she successfully resisted in the Upper Tribunal. In UG’s case there was again argument in the Upper Tribunal about the existence of a presumption, although both there and in the First-tier Tribunal the case was determined rather by reference to the severance of the family unit point – and indeed in the inferior tribunal by reference also to the absence of exceptional circumstances, i.e. in reliance upon the wrong policy.

In these circumstances I do not consider that fairness requires disposal of these appeals in the manner suggested by Mr Drabble. Fairness involves fairness to both parties. Whilst Mr Drabble suggested in his skeleton argument served the day before the first hearing before this court that “the challenge for the Secretary of State is to identify the sort of thing that would amount to a countervailing factor where both the first and one other bullet point is met” I do not consider that that is a challenge which the Secretary of State had hitherto been expected to meet. The shape of the argument in the appellate proceedings in the tribunals was in large part informed by the nature of the challenge to the decision of the ECO. Still less would it have been appropriate for the Secretary of State either to have introduced fresh or further evidence in this court or to have invited this court to undertake for the first time the broad and rounded evaluation which is called for by the terms of the policy and the making of which is in any event entrusted not to this court but to the Entry Clearance Officer.

Accordingly I am satisfied that in each case considerations both of fairness and of coherent decision making require that the applications be remitted for reconsideration by the ECO. The ECO should in each case apply the policy which was in force as at the date of the respective applications, but he should apply it to the facts as he finds them to be as at the time of his decision. Insofar as the First-tier Tribunal has found that the applicants satisfy one or other of the bullet point criteria, the ECO will be bound by that finding to the extent that it has been endorsed or not overturned by the Upper Tribunal. (Footnote: ¹) So too he will be bound by findings of fact made by the Upper Tribunal, although for the avoidance of doubt not by findings such as those made in UG only “for the purposes of this appeal” in circumstances where the Upper Tribunal Judge was minded to and did dispose of the appeal on a wholly unrelated ground. The ECO is entitled to take into account developments subsequent to the date of the initial application, insofar as they amount to a material change of circumstances. In so proceeding the ECO will of course be mindful of the need not to permit a material change of circumstances to lead to unfair treatment of an applicant. But changes of circumstance can cut both ways. Serious illness may have intervened which was not present at the time of the application. There would be no unfairness in denying settlement rights in the UK to a once-dependent applicant who has subsequently married or formed some liaison with a millionaire overseas.

I would therefore dismiss the appeals of NT, RM and YP but allow that of UG, setting aside the conclusion reached below as to the severance of the family unit and remitting that case too for consideration afresh by the ECO.

I agree.

I also agree.