The Entry Clearance Officer, New Delhi v UR & Ors

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’.

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.

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.

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.”

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 :

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.

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.

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 has been challenged on behalf of the ECO is what the judge did next. He asked himself whether the correct course would be to remit the three cases to the respondent, so that they could be properly considered under the policy and a lawful decision could then be made, or whether he should allow the appeals outright, with no remittal. Quite rightly, in our respectful view, he cited AG & ors (policies; executive discretions; Tribunal’s powers) Kosovo [2007] UKAIT 82 and SS (jurisdiction – rule 62(7); refugee’s family; policy) Somalia [2005] UKAIT 167 for the proposition that while, in the generality of cases, a finding that a policy has not been applied properly or at all, and that the decision under appeal is therefore ‘not in accordance with the law’, will result in remittal to the original decision-maker, it may be possible in very unusual cases for the appellate authority to allow the appeal outright.

SS (Somalia) puts the matter this way:

“Unless the policy is expressed in terms that are absolute or have to be regarded as absolute on the individual facts of the case, the effect of a successful appeal will be merely that the decision is found to be an unlawful one, so that there is outstanding an application …”

AG (Kosovo) sets out the circumstances which might render a policy ‘absolute’:

“They are those in which (1) the claimant proves the precise terms of the policy, which (2) creates a presumption, on the facts of his case, in favour of granting leave, and (3) there is either nothing at all to displace the presumption, or nothing that, under the terms of the policy, falls for consideration. If all those factors apply to the case, the appeal should be allowed, with a direction as indicated.”

Immigration Judge Gillespie did indeed allow the instant appeals, with a direction that entry clearance be granted. He found that SET 12.16 gives “a strong and unequivocal indication of intention to maintain family unity and not to split a family solely on the grounds of the majority of one family member.” He considered it to be “a statement of policy that is to be ‘regarded as absolute in the individual facts of the case’.” There being no factors contra-indicating the favourable exercise of discretion, “it would be irrational to refuse leave to enter.”

In seeking leave to appeal to the Upper Tribunal, the respondent made no complaint about the judge’s findings of fact. What was sought was simply the deletion from the determination of the direction for entry clearance, and its substitution with a direction that the Entry Clearance Officer consider his policy in the light of the facts as found. Before us, detailed and persuasive submissions were made by both representatives on the question whether, given that the appellants remain dependent upon their sponsor in the United Kingdom, who has been joined by their mother and younger sibling, the policy should be regarded as ‘absolute’, such that no other outcome is rationally possible but that entry clearance for settlement be granted.

The representatives will, we trust, forgive us if we do not set out their arguments in extenso here. It simply does not seem to us that, on the facts of the present appeals, the policy is ‘absolute’. It does indeed, as the judge below said, evince an intention “not to split a family solely on the grounds of the majority of one family member.” The desire appears to be to avoid the phenomenon of the ‘stranded sibling’, whose parents and younger siblings have all gone to the United Kingdom, leaving him alone in his own country. That is somewhat different from several overage siblings living together in their own country, as is the case here. The fourth bullet point of SET 12.16 reinforces the impression that what might prompt the favourable exercise of discretion is the prospect of the applicant “living alone outside the UK.”

We observed above that the first bullet point is listed as a free-standing factor, although it is really a condition precedent for any application to join a sponsor who is settled here under the HM Forces rule, whether the application falls for consideration within or outwith the Immigration Rules. As such, it is actually irrelevant to the exercise of discretion. The other factors listed under SET 12.16 clearly do add something to the basic requirement that the applicant should have a settled sponsor. An applicant who meets the requirements of the first bullet point, but none of the others, should not expect the discretion to be exercised in his favour, without more. Although the express wording of SET 12.16 might suggest otherwise, we remind ourselves of the distinction between rules and policies made by Lord Justice Sedley in Pankina [2010] EWCA Civ 719. The Immigration Rules have been “elevated to a status akin to that of law” and so must be construed more strictly than was the case in the past. Policies, on the other hand, are meant to be applied flexibly, and to allow the sensible exercise of discretion. Their wording does not have to be construed with all the strictness of a statute.

What all this boils down to is that this is not one of those rare cases where, on its facts, no rational decision-maker could fail to exercise his discretion favourably under the relevant policy. There is even some confusion as to what the relevant policy actually is. The treatment of dependants over the age of 18 at Chapter 15 of the IDIs is very brief, and simply insists upon exceptional circumstances. SET 12.16 deals with dependants over the age of 18 in much more detail, and does not use the term ‘exceptional circumstances’, although it may be that the factors listed in SET 12.16 are intended to encompass ‘exceptional circumstances’. It follows that the appropriate course is to remit these appeals to the ECO in New Delhi for him to apply the policy SET 12.16, in conjunction with Chapter 15 of the IDIs and in the light of the facts as found.

That is not quite the end of the matter, however, as Mr Owusu strongly urged us to consider the appeals under Article 8 of the European Convention, and to allow them on that basis. Immigration Judge Gillespie thought it “unnecessary to consider any alternative relief under the Human Rights Act 1998” because he was allowing the appeals outright under the policy, rather than remitting them for a fresh decision to be made. In a sense, that was putting the cart before the horse. As Mrs Sharland pointed out, the head note to AG (Kosovo) begins with the following prescription : “If human rights are argued, they should be determined in advance of any argument based on discretion : if the appellant’s human rights entitle him to enter or remain in the United Kingdom, any discretionary power to allow him to do so is otiose.”

We think there are two good reasons for not entertaining these appeals under Article 8 at the current stage. First, when the appellants’ solicitors responded under rule 24 of the Upper Tribunal Procedure Rules to the grant of permission to appeal – which would have allowed them to re-state any grounds on which they were unsuccessful at first instance – they did not invoke Article 8. On the contrary, they intimated that, if an error of law was established, the outcome which they sought was “a remittal to the appellant”, i.e. to the ECO. That is precisely the outcome which we favour.

Secondly, we apprehend that, if the appellants’ circumstances are not such as to warrant an exercise of discretion in their favour, Article 8 on its own will hardly, on the evidence that is currently before us, entitle the appellants to settlement in the United Kingdom. Financial dependency will not suffice. As was held in Kugathas [2003] EWCA Civ 31, an unusual degree of emotional dependency must be established, in order to enable adult children to settle with a parent in this country. The appellants are currently aged 19, 26 and 29. They are living in a house rented by the sponsor, which they share with three male cousins. The focus of these appeals has been the policy on overage children of ex-Gurkhas. A full Article 8 case has not yet been put together.

The Entry Clearance Officer’s appeal is allowed, to the extent that the applications for entry clearance are remitted to him for a fresh decision to be made, in accordance with the policy set out in SET 12, read with Chapter 15 of the Immigration Directorates’ Instructions, and on the basis of the facts as found by the First-tier Tribunal.