Entry Clearance Officer - Kathmandu v Dik Prasad Pun & Anor

1. These appeals all concern applications for entry clearance made by adult dependent relatives of former members of the British Brigade of Gurkhas who have taken up their rights to settle in the UK. In this determination we will refer to the parties as they were before the First-tier Tribunal, the applicants as the appellants and Entry Clearance Officers as the respondents.

2. These appeals have been heard together as they raise common issues on the interpretation of the policy set out in Chapter 29(4) of the DSP referred to below subsequently replaced by the provisions of SET 12. On 13 April 2011 the Tribunal heard submissions on these issues and with the agreement of the parties we decided that the appropriate course would be to deal with those matters as a preliminary issue, send out our decision and then hear further submissions on the individual appeals.

3. Our decision on the preliminary issue was issued on 22 June 2011 and is as follows:

“1. These appeals raise issues on the meaning and interpretation of the respondent’s policy set out firstly in chapter 29.14 of the Diplomatic Service Procedures (DSP): Entry Clearance, Volume 1 General Instructions and the identically worded provisions of SET 12: Settlement Entry for Former Members of HM Forces and Their Dependants (SET 12). In this decision we will refer to the parties as they were before the First-tier Tribunal, the applicants as the appellants and the entry clearance officers as the respondent.

2. The background to these policies lies in the changes to the Immigration Rules introduced in October 2004 providing for the grant of settlement to Gurkha soldiers with four years’ service who retired from the British Army on or after 1 July 1997. DSP chapter 29 was issued at the same time to provide operational instructions to Entry Clearance Officers and to set out the policy to be followed in relation to dependants over the age of 18. Chapter 29 ceased to have effect in around February 2009 but a further policy (SET 12) was published in the same terms

3. The core legal issue which arises in the present appeals is whether in circumstances where an Immigration Judge has made a finding that the respondent's decision under the policy was not in accordance with the law, he should direct the grant of entry clearance or remit the application to the respondent for a further decision. The issue put at its simplest is whether as the respondent argues para 29.14 creates a broad discretion which, as it is a discretion exercised outside the Immigration Rules, is one which must be exercised by the respondent and accordingly, when it is found that the decision is not in accordance with the law, the application must be remitted to the respondent for a lawful decision to be made or whether, as argued by the appellants, the terms of the policy create a presumption that leave will be granted if one or more of the bullet points set out in para 29.14 is met, when, if so, and if there is nothing to displace that presumption and nothing further to be considered, the appeal should be allowed in accordance with AG and others (Policies; executive discretions; Tribunal’s powers) (Kosovo) [2007] UKAIT 82.

4. Para 29.14 provides as follows:

“It is not the intention to split a family unit solely because the 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 the settlement in the UK is appropriate the ECO should consider the following factors:

If one or more of the factors listed above are present, the ECO may exercise discretion to grant entry clearance for settlement in the UK.”

Summary of Mr Eadie’s Submission

5. Mr Eadie submitted that para 29.14 is plainly intended to create a broad discretion to be exercised by the respondent. It sets out a policy operating outside the Immigration Rules. The correct approach to ascertaining its effect was, he submitted, set out by the Tribunal in UR & Others (Policy; executive discretion; remittal) Nepal [2010] UKUT 480 (IAC). The core purpose of the policy was considered and the Tribunal held that it did not create a presumption of the kind that would make it appropriate for an immigration judge to allow the appeal outright and that the proper course was to remit for a fresh decision to be taken. He also referred to and relied on the Tribunal determinations in CT (Gurkhas: policy) Nepal [2011] UKUT 53 (IAC) and KG (Gurkhas – overage dependants – policy) Nepal [2011] UKUT 00117 (IAC). These authorities supported the proposition that no presumption was created simply by the fact that one or more of the bullet points was fulfilled. The fact that there remained a discretion was indicated by the wording of the policy itself i.e. the use of “may” in the paragraph before the bullet points and in the final sentence.

6. He argued that the content of the bullet points themselves indicated that there could be no such presumption. Each point covered a variety of possible factual scenarios. The first bullet point would include every single relative of persons present or settled or being granted or being admitted to settlement under the HM Forces Rule. It could not have been intended that the policy was to create a presumption on crossing this threshold. Bullet points 2 to 5 simply identified matters properly to be taken into account and the respondent could lawfully and rationally make a decision to refuse an application even if one or more of these conditions were met. If an ability to meet one or more of the bullet points led to the presumption of grant within AG (Kosovo ), there would be no scope for the respondent to take into account the kind of matters set out in Part 9 of the Rules such as an individual’s dishonesty and criminal record.

7. He submitted that as with any policy a balance had to be struck between flexibility and the need to identify matters properly to be taken into account. This allowed the decision-maker to respond to the individual circumstances of each application. This flexibility did not make the policy unlawful: it was sufficiently prescriptive and set out an adequate framework in which rational and lawful decisions could properly be made. The purpose of the policy had been fairly set out in UR and the policy was consistent with and put into effect the ministerial statements set out in the Parliamentary materials relied on by the appellants. The Military Covenant was being adhered to as the policy set out the special treatment to be given to adult dependants of members of the armed forces.

8. He submitted that it was not open to the appellants to rely on the record of Mr Kovats’ submissions in R (on the application of Limbu) [2008] EWHC 2261 (Admin) recorded in para 58(iv) of the judgment where the issues being addressed were fundamentally different, whether discretion should be exercised under para 29.4. The submission had been addressed to a different point. When giving judgment, Blake J had not ruled on the correctness or otherwise of the issue of whether a presumption arose but in any event he had been dealing with a different policy and there were marked differences between para 29.4 and 29.14. In such circumstances no weight should be attached to the submissions made by Mr Kovats in Limbu .

9. In summary, he submitted that the policy was designed to be applied flexibly, applying relatively but necessarily broadly defined sets of factors to a potentially wide range of different factual scenarios presented in individual cases. Excessive rigidity or circumscription would be a vice not a virtue. He argued that the policy expressed in para 29.14 struck a lawful and rational balance between rigidity and flexibility and did not prescribe how the discretion was to be exercised in all situations.

Summary of Ms Stickler’s Submissions

10. Ms Stickler’s submission was that para 29.14 created a presumption that entry clearance would be granted to dependants over the age of 18 if they satisfied one or more of the five bullet points listed and where so, entry clearance must be granted. She argued that this interpretation was supported by considering the content and purpose of the policy, its language and construction, the concession made by counsel in Limbu and the need for transparency and the avoidance of inconsistency. She argued that there were Parliamentary statements which assisted the Tribunal in determining the meaning and purpose of policy and in particular the statements by Mr Des Brown of 14 September 2004 and the press release issued by the Home Office in 2004, referred to in paras 11 and 12 of the judgment of Blake J in Limbu . The government had made it clear that it wished to acknowledge the role played by the Gurkhas in the history of the UK and had expressed the intention of putting together the best possible package to enable discharged Gurkhas to apply for settlement and citizenship. These statements were made with the Military Covenant in mind and the policy was designed to ensure that ex-Gurkha soldiers would be able to enjoy their right to remain in the UK with their family members including dependants over the age of 18.

11. She submitted that the first sentence of para 29.14 supported her argument by confirming that family unity was the respondent's objective in formulating the policy. The intention was clearly set out: not to split a family unit solely because a dependant was 18 years of age or over. The use of the words “may” and “discretion” within the paragraph did not preclude the policy from creating a presumption in favour of entry clearance. She submitted that in the context of this policy “may” did not indicate that there was a discretion to be exercised but set out a power to grant leave. She argued that if one of the bullet points was fulfilled the policy authorised the exercise by the respondent of a power not a discretion. She accepted that “may” needed to be read as “must” but this was the only way to achieve the purpose of the policy. [At the resumed hearing on 1 July 2011 Ms Stickler asked us to note she had not sought to argue simply that “may” should be read as “must” save in the context of her argument that “may” authorised the exercise of a power and we accordingly record that clarification of her argument].

12. She relied on the concession made on behalf of the respondent through her counsel, Mr Kovats, in the case of Limbu . Although the concession was made in the context of para 29.4, it was equally applicable, so she argued, to para 29.14. The respondent had confirmed that para 29.4 provided a discretion to Entry Clearance Officers in the absence of the specified factors but that when one or more of the identified factors existed entry clearance should be granted. The policy in para 29.14 was framed in exactly the same way as para 29.4: both used the phrase “discretion may be exercised”, confirmed that the respondent should consider a list of factors, provided that list and then stated that if one or more of the factors were present the respondent may exercise discretion and grant entry clearance. She argued that it would be irrational and arbitrary to use exactly the same structure and wording and yet apply different interpretations. There was no need for Blake J to consider the correctness of the submission as it was a concession and so there was nothing left to consider.

13. She submitted that if the policy was to be interpreted as genuinely discretionary, this would lead to inconsistent decision-making as one ECO might consider that the presence of one factor triggered entry clearance whereas another could decide that it should be refused despite that factor being present. Those seeking settlement with family members in the UK needed consistency, clarity, and fairness in their treatment. She submitted that the determination in CT was properly distinguishable as the policy wording being considered there was substantially different, the Tribunal focusing on the need for exceptional circumstances. She submitted that in UR the Tribunal had been wrong to rely simply on the argument that the aim behind the policy was to avoid the phenomenon of the “stranded sibling” whose parents and younger siblings had all gone to the UK leaving him alone in his home country. That interpretation was not consistent with the Parliamentary debates and press statements surrounding the policy. The fact that there may be two siblings in Nepal did not change the fact that both of them would be separated from their family members in the UK: they would remain stranded dependants as much as a single stranded dependant. She argued that the comment in UR that the first bullet point was a condition precedent was incorrect as it was clear that a list of factors had been introduced with no intention of regarding the first factor as such a condition. She submitted that KG was wrongly decided and that the decisions of IJ Connor in Gurung (OA/08774/2007) of IJ Craig in Gurung (OA/50741/2008) should be preferred. In these cases decisions were substituted allowing the appeal on the basis that the policy created a presumption.

The Submissions of Mr Jacobs

14. Mr Jacobs submitted that there was nothing in the policy in SET 12 to prevent a judge from directing that entry clearance is granted when the findings left open no other outcome. He argued that if two of the criteria identified in the policy were established, the appellant was entitled to succeed. The respondent could not reasonably submit that it was her intention to split up families of Gurkha servicemen in the light of the very wording of the policy. In light of the Military Covenant it was in the public interest that members of the Gurkhas and their dependent family members should be treated properly. He relied on the concession made in Limbu that where one or more factors set out in para 29.4 were met; discretion should be exercised in the applicant’s favour. That concession must rationally extend to the identically worded provisions of para 29.14. The underlying rationale of the policy was predicated on a declaration of intent not to split a family unit solely because the dependant was 18 years or over.

15. He submitted that the judge was entitled to allow the appeal where at least two of the bullet points were met and there were no countervailing factors. If remitting the application for a fresh decision would inevitably lead to the same result, there was no reason why the Tribunal should not allow the appeal. He referred to the comments of Beatson J in R (on the application of K) v SSHD [2010] EWHC 3102 (Admin) that a policy should be interpreted in terms of what a reasonable and literate man would understand it to mean. The policy told Entry Clearance Officers what they should consider and where there were no countervailing factors there could only be one answer, the appeal should be allowed.

Parliamentary Statements

16. As we are dealing with a statement of executive policy we accept that the relevant ministerial and Parliamentary statements should properly be taken into account when interpreting its meaning: NF (Ghana) [2008] EWCA Civ 906. On 14 September 2004 in response to a question from Ann Widdicombe, Mr Des Brown, Minister of State (Citizenship, Immigration and Counter-Terrorism) said:

“I am well aware of the high regard in which the Gurkhas are held in this country, and of the valued contribution that they make during their service with the British Armed Forces … I am sure that the legend of honour of the Gurkhas could occupy the House for some time if we were to debate their heroism and service to British society and its armed forces.

The government recognise the enormous contribution that the Gurkhas have made, serving across the world with the UK’s armed forces. I want to take this opportunity simply to thank them for their bravery and their loyalty. Ministers are sympathetic to concerns about their current situation, which, as the Right Hon. Lady reminded us, has applied for the past 50 years …

It is not by any stretch of the imagination as simple as identifying an apparent injustice and seeking to resolve it. As one would have expected, the review has identified complex legal issues, on which complex legal advice is being sought. We need to be sure that we understand what impact change may have in relation, for example, to ensuring that any future policy is not discriminatory, and that the Gurkhas obtain the best advantage from it.

I see that I am running out of time. Let me finally reassure the House that the current review is being conducted in the best interests of the Gurkhas. …”

17. We were also referred to the press release issued by the Home Office in 2004 cited by Blake J in Limbu explaining the reasons for the change in policy:

“The Ghurkhas have served this country with great skill, courage and dignity during some of the most testing times in our history. They have made an enormous contribution not just to our armed forces but to the life of this country, and it is important that their commitment and sacrifice is recognised.”

Blake J also referred to what the Home Secretary David Blunkett said:

“Throughout their history, the men of the Gurkha Brigade have shown unquestioning loyalty to the Queen and the people of the United Kingdom. In battle they have distinguished themselves as brave and skilful soldiers in all conditions and all terrains. Their thirteen Victoria Crosses and numerous other bravery awards speak for themselves. I am very keen to ensure that we recognise their role in the history of our country and the part they have played in protecting us. This is why we have put together the best possible package to enable discharged Gurkhas to apply for settlement and citizenship. I hope that the decision I have made today will make our gratitude clear. Those high military standards have been mirrored in their demeanour in civilian life. Their families too have shown devotion and commitment by travelling across continents to support the brigade.”

In Limbu Blake J also relied on the Military Covenant which states:

“Soldiers will be called upon to make personal sacrifices – including the ultimate sacrifice – in service of the nation. In putting the need of the nation and the army before their own, they forego some of the rights enjoyed by those outside the armed forces. In return, British soldiers must be able to always expect their treatment, to be valued and respected as individuals and that they (and their families) will be sustained and rewarded by commensurate terms and conditions of service.”

The Authorities

18. Neither party has sought to argue that the principles set out in AG (Kosovo) were incorrect or should be supplemented or modified. The argument between the parties is whether the appellants are able to bring themselves within the unusual category of case identified in para 50 of the determination where the Tribunal following a finding that the respondent's decision is not in accordance with the law can make a substantive decision in the appellant's favour. Before setting out its findings on that issue, the Tribunal (Mr CMG Ockelton DP, SIJ King, SIJ Grubb) set out a number of principles in its analysis of the issues arising when a policy outside the Rules has to be taken into consideration in an appeal which, as in the present appeals, also raises human rights issues. These are set out in paras 27-32 of the determination and in so far as they are relevant to the present appeals can briefly be summarised as follows: A claim based on human rights even if it depends on the assessment of proportionality is different in nature from one based on an assertion that an appellant should have benefited from the exercise of discretion within a policy. The assessment of proportionality is a matter for the Tribunal but it does not follow that the exercise of a discretion within a policy is also a matter for the Tribunal in a case where an appellant has not shown that a decision adverse to him is incompatible with his Convention rights. The Tribunal is a creature of statute and only has the powers given to it by statute. There are some areas of discretionary judgment where an appellant’s search for a beneficial outcome is not an assertion of his human rights. Human rights claims should be assessed in priority to claims based on the hope of a favourable exercise of discretion. Within the category of rights, issues relating to the assessment of proportionality ought to yield priority to specific provisions of national law.

19. The Tribunal then considered a submission that where the respondent had published a policy incorporating a discretion which might be exercised in favour of a person who did not meet the requirements of the Immigration Rules, the Tribunal was not merely to decide whether the respondent had acted in accordance with the law but was to go on to make the discretionary decision for itself. It rejected this argument explaining why the observations made by the Court of Appeal in Baig v SSHD [2005] EWCA Civ 1246 and Tozlukaya v SSHD [2005] EWCA Civ 379 did not support such a broad proposition. In paragraph 43 of its determination it concluded that the Tribunal was not bound or entitled to consider or review the exercise of a discretion outside the Immigration Rules as both principle and statute were against it. But when assessing article 8 the Tribunal was bound to consider whether a particular decision was proportionate and in doing so should take into account any declared policy that incorporated a presumption that immigration control would not be enforced against persons of a category into which an appellant fell. The reason for taking such a policy into account was that it threw light on the need for immigration control and so helped to assess the proportionality of the decision. The Tribunal then said in para 44:

“If the claimant does not establish (whether by reference to a policy or otherwise) that his Convention rights prohibit his removal, then the Secretary of State has (whether by reference to a policy or otherwise) a discretion to allow him to stay: but, because of s.86(6), the exercise of that discretion is not reviewable by the Tribunal. Where, however, the Secretary of State has declared a policy in relation to a category into which the claimant falls, a decision that on its face fails to apply the policy may found a successful appeal on the ground that the decision ‘was not in accordance with the law’. In such a case (subject to an observation we make below) the effect of allowing the appeal would not be to grant the appellant the substantive relief he seeks but merely to set aside the unlawful decision so that a lawful decision (whether in favour or against the appellant) may in due course be made.”

20. The Tribunal's further observations on these issues are set out in paras 48-51 and they need to be set out in full:

“48. Our second additional point is in relation to cases where the policy does not incorporate a discretion, or where on the facts of the case there is no proper opportunity, by the application of the policy, to make a decision unfavourable to the claimant. This is not the usual position. In SS [2005] UKAIT 00167 the Tribunal said this:

“30. … . Most published policies are not in the absolute terms of the Immigration Rules. Most policies contain words like ‘ normally’ . Many policies do not declare that a particular relief will be granted: they provide that the Secretary of State will consider whether it should be. A claimant who has not obtained the substantive grant that he seeks can succeed on the policy only if he shows that the policy itself was not (or was not properly) applied. If the policy says that the Secretary of State ‘will consider’ his case on certain terms, he cannot succeed unless he can show that the Secretary of State did not consider his case on those terms. If the policy says that something will ‘ normally ’ be granted, he is likely to be in some difficulties if the Secretary of State refers to any consideration that shows that the case is less than normal.

31. In any event, unless the policy is expressed in terms that are absolute or have to be regarded as absolute in the individual facts of the case, the effect of a successful appeal will be merely that the decision is found to have been an unlawful one, so that there is outstanding an application before the Secretary of State. … .”

49. That decision, however, clearly envisages that where a policy is expressed in absolute terms, a claimant may be entitled to succeed substantively. IA [2006] UKAIT 00082 was such a case. The one reason given by the Secretary of State for refusing to apply a policy that would otherwise have operated in favour of the appellant was found by the Immigration Judge to be factually wrong. For procedural reasons the Tribunal was content, on reconsideration, to affirm the Immigration Judge’s decision to allow the appeal on human rights grounds; but it did so only after saying that, in the circumstances of the case, it would have been difficult to criticise him if he had allowed the appeal on the ground that, given the facts, the reason for the decision and the terms of the policy, an adverse decision was not “in accordance with the law”.

50. For ourselves we have little doubt that – contrary to the submissions on behalf of the Secretary of State before us – there are cases in which a finding that a decision is “not in accordance with the law” on the ground of failure to apply a policy should lead to a substantive decision in the claimant’s favour, with a direction that leave be granted. There will be no need to base such a decision on human rights grounds, because it is demanded by the more detailed provisions of the 2002 Act. But the cases in question are unusual. 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.

51. If (2) or (3) do not apply, and if the Secretary of State has not yet considered the claim within the terms of his policy, the appeal should be allowed with a direction that he do so. But if the appellant fails to establish the terms of a policy, or if the Secretary of State has already properly considered the claim within the terms of any applicable policy, then (given that none of these considerations apply at all unless the appellant’s removal would not breach his Convention rights) the appeal should be dismissed.”

21. The polices we are considering in this appeal have been considered in a number of previous determinations. In CT , the Tribunal considered a similarly worded policy although qualified by a requirement of exceptional circumstances. It was argued that where an individual fell within one or more of the categories identified in the bullet points there was an expectation that the discretion would be exercised in his or her favour in accordance with the principles set out in para 50 of AG . The Tribunal (Mr CMG Ockelton VP and SIJ Grubb) rejected this submission in the following terms:

“17. We are unable to see that the terms of para 13.2 begin to fulfil the criteria there set out. The IDIs simply do not indicate any presumption that leave will be granted to adult children. They indicate merely that it may be granted in exceptional circumstances, following the consideration of criteria including those set out. We therefore reject Mr Howell’s [counsel for the appellant] submission that this was a case in which the immigration judge should have allowed the appeal on the basis that the Secretary of State's guidance required a decision in the appellant's favour.”

22. The policy as currently worded has been considered by the Tribunal in UR . The immigration judge had allowed the appeals following a finding that the respondent's decision was not in accordance with the law. On appeal the Tribunal (Owen J and SIJ McKee) said:

“12. 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.

13. 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 .”

14. 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.

15. 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.

23. The issue was again considered in KG where the Tribunal (SIJ McKee) again set aside a decision by an immigration judge allowing an appeal following a finding that the respondent's decision under the policy was not in accordance with the law. SIJ McKee set out his reasons for finding that the judge erred in law by taking this course as follows:

“8. The first ground was, on the other hand, the focus of very lucid and persuasive submissions when the appeal came before me today. I shall not set out those submissions in extenso , but shall refer to them in giving my reasons for concluding that the policy contained in Chapter 29.14 of the Diplomatic Service Procedures/Entry Clearance Guidance (and more recently appearing in the document SET 12) is not of such a kind that an immigration judge can allow an appeal outright if he thinks that the appellant comes within the terms of the policy. Bullet points being a feature of this particular policy, I shall give my reasons also in bullet point form.

24. SIJ McKee went on to remake the decision not purporting to exercise the discretion under the policy but by considering whether the decision refusing entry clearance would be in breach of Article 8. He found that it would be and in particular he took the policy into account in the context of a consideration of the weight to be given to the public interest in maintaining firm and fair immigration control saying on this issue:

“15… but in coming to the proportionality balancing exercise required by the fifth question, I think that the public interest in maintaining firm and fair immigration control is not as strong as usual.

16. There are two reasons for this. First, the existence of a policy outside the Rules, providing for the admission of overage relatives of former soldiers on much more generous terms than paragraph 317 of the Rules, makes the exclusion of this overage relative harder to justify, especially as she appears to meet criteria in the policy which would attract a favourable exercise of discretion. Secondly, if Gurkhas had not had to wait until 2004 before becoming able to settle in the United Kingdom, it would have been possible for the appellant to come to this country while she was still a minor. This may not be an ‘historical wrong’ as severe as that perpetrated upon female British Overseas citizens, which played a part in the Article 8 balancing exercise conducted by a Presidential panel of the Tribunal in NH (female BOCs, exceptionality, Art 8, para 317) India [2006] UKAIT 85, and subsequently approved in NH (India) [2007] EWCA Civ 1330. But it was acknowledged by same Home Secretary that it had been wrong to prevent Gurkhas from settling here with their families in the past. Mr Howells handed up the case of JB (India) [2009] EWCA Civ 234, in which Lord Justice Sullivan acknowledges that “ where there is an interference with family life sufficient to engage Article 8(1), recognition that the family has been the victim of a ‘historic injustice’ may well be relevant, in some cases highly relevant, when the proportionality of the interference is considered under Article 8(2) .” In the present case, the long overdue recognition that Gurkhas should have had their service to this country rewarded by being allowed to settle here does reduce the weight to be put into the public interest side of the balance, even if not by very much. But the upshot is that the Article 8 balance comes down in the present case on the side of the appellant and her family in this country.

25. We were referred to two Upper Tribunal determinations in which it was held that an immigration judge has not erred in law by substituting a decision allowing an appeal following a finding that the respondent's decision was not in accordance with the law. In Gurung (OA/08774/2007) the Tribunal relied primarily on the concession said to be made by Mr Kovats in Limbu . In Gurung (OA/50741/2008) the Tribunal took a similar view, again relying on what had been said in Limbu but in this case the appeal was also allowed on Article 8 grounds.

Conclusions

26. We now set out our conclusions on the issue of whether when there is a finding that a decision under para 29.14 or SET 12 is not in accordance with the law, the proper course is to direct the grant of entry clearance or to remit the appeal for lawful decision. We accept that when construing this policy its wording does not have to be construed with the strictness of a statute and that policies are meant to be applied flexibly. We agree with and adopt the guidance given by the Tribunal in para 14 of UR as to the approach to construing the meaning of a policy. This approach is consistent with the guidance of Beatson J in K where he held that a policy was to be interpreted in terms of what a reasonable and literate man would understand it to mean.

27. We are satisfied from the wording of the policy that it sets out a true discretion to be exercised outside the Rules by the respondent and cannot reasonably be interpreted as setting out a number of different requirements where the fulfilment of one or more leads to an entitlement to a grant of entry clearance. The wording of the policy itself is inconsistent with a finding that an applicant need only fulfil one or perhaps two of the bullet points to qualify without more for entry clearance. The policy says that applications for settlement from dependants who are 18 years of age or over will be considered and the discretion to grant settlement outside the rules may be exercised in individual cases. The bullet points are preceded by the following: “In assessing whether settlement in the UK is appropriate the ECO should consider the following factors”. The paragraph ends by saying 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. In our judgment it is impossible to read this policy as creating a presumption of the kind referred to within para 50 of AG or as requiring the grant of entry clearance if one or more of the bullet points are met and we do not think that a reasonable or literate man could read it in such a way.

28. In UR the Tribunal described the first bullet point as in effect a condition precedent. The point being made by the use of this phraseology was that bullet point 1 will apply in respect of any applicant as a dependant will inevitably be seeking to join a parent or relative present and settled or being admitted for settlement in the UK. This bullet point cannot be a stand-alone requirement permitting settlement. The other bullet points potentially cover a spectrum of factual circumstances. The fact that an appellant has previously been granted leave within bullet point 2 as a dependant of a member of HM Forces leaves open the question of when the leave was granted and for how long. Similarly bullet point 3 leaves open when the full-time course of studies was. Bullet points 4 and 5 raise factual issues which are broadly stated and will inevitably be case specific.

29. We are satisfied that the clear wording of para 29.14 is to create a broad discretion to be exercised in the light of the individual facts and circumstances of each case taking into account but not limited to the identified bullet points. These serve to identify some factors which may be relevant whilst not excluding other factors which may depending on the facts of the case be equally relevant.

30. We are satisfied that no particular significance is to be given to the opening sentence of the paragraph that it is not the intention to split a family unit solely because a dependant is 18 years of age or over. The policy must be read as a whole. The rest of the paragraph gives substance to the intention stated. This interpretation of the policy is consistent with the Parliamentary and ministerial statements which have been made and with the Military Covenant as this policy sets out an exceptional course outside the Rules being taken in respect of adult dependants of former members of HM Forces.

31. The appellants have sought to rely on the concession made in Limbu . We are not satisfied that Mr Kovats’ comments were or were intended to be a formal concession as to how the policy should be operated and in any event what was said must be looked at in the context in which it was made. The issues being addressed were different and related to para 29.4 where the specific issue was whether there was a requirement to fulfil one or more of the specified examples. The submission as recorded in Blake J’s judgment is that:

“(iv) The policy is a genuine discretionary one not trammelled by a mandatory requirement to fulfil one or more of the specified examples, whatever the individual’s decision rejecting the claims might at first blush have indicated. The essence of the policy is whether ‘there are strong reasons why settlement in the UK is appropriate’. This is a judgment formed by the individual ECO using the factors as a guide. If one or more of the identified factors existed discretion should be exercised favourably, but it could be so exercised if other unspecified conditions led to the same conclusion.”

32. The submission makes no reference to and does not purport to address what approach should be taken if there are countervailing factors such as a criminal record or other features falling within Part 9 of the Immigration Rules. Further, the wording of this submission must be read as whole. The final sentence including the purported concession that “discretion should be exercised” must be read in the light of the preceding sentences and in particular “the policy is a genuine discretionary one not trammelled by a mandatory requirement to fulfil one or more of the specified examples” and “this is a judgment formed by the individual ECO using the factors as a guide”. There is no justification for treating Mr Kovat’s submissions as a formal, binding concession as to how the respondent's discretion will be exercised. If that had been the intention, it would doubtless have been done with much greater clarity and certainty.

33. We do not accept that the policy is legally uncertain or not sufficiently transparent. A balance has to be struck between flexibility and uncertainty and the need to do justice in each individual case. The exercise of discretion will inevitably be fact specific and depend on the particular circumstances of each applicant. For these reasons we reject the argument that an appellant is entitled to a grant of leave if he is able to meet one or more of the bullet points set out in the policy. We agree with the decisions and the reasoning in CT UB and AG and find that the decisions in Gurung & Gurung are not to be followed on this issue.

34. When there is a finding that a decision made under a policy was not in accordance with the law the proper course is for the appeal to be allowed to the extent that the application is remitted to the respondent for a lawful decision. However, there will be cases albeit falling in a narrow category where even though there is a discretion within the policy an appeal can be allowed where on the facts of the case it would not be open to the respondent in applying the policy to make a decision unfavourable to the appellant. We agree with the determination in AG (Kosovo) in paras 48-50. To take any other course would be to exercise a discretion outside the Rules: a jurisdiction the Tribunal simply does not have.

35. A witness statement of David Enright, a solicitor at Howe & Co, dated 12 April 2011 was put in evidence before us. This statement sets out two examples of the way in which immigration applications of Gurkha dependent children have been dealt with by UKBA and in substance complains about extensive delays in dealing with them and in particular where further decisions have had to be made following successful applications for judicial review or a successful appeal where the decision was shown not to be in accordance with the law. However, these concerns do not relate directly to the issues being dealt with at this stage. As we have already indicated, it is not for the Tribunal to substitute its own decision or exercise its own discretion under a policy falling outside the Rules but there will normally be jurisdiction to consider an appeal on article 8 grounds. This was the course taken by the Tribunal in KG and we note that in UR article 8 was not dealt with as a full case had not been put together on that ground (para 18). We have not yet heard full submissions on the issues arising in the article 8 appeals and make no further comment on these matters save to draw the parties’ attention to paras 27-32 of the determination in AG (Kosovo).