England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		15 June 2012

Mr Justice Eady:

1. From 1 July 1997, Hong Kong was no longer under British rule and from that date those serving in the Brigade of Gurkhas were stationed in the United Kingdom rather than in Hong Kong. Having been discharged here, the former servicemen are now allowed to settle in the United Kingdom following a change of policy in 2004. Later, as is well known, arrangements were made in 2009 to accommodate also those who had retired before July 1997 together with their families. It is against that background that the present claims arise.
2. Each of the Claimants in these proceedings seeks to challenge the Secretary of State's decision to reject his or her application for indefinite leave to remain.
3. In the case of the First Claimant, Ms Sharmila Gurung, Collins J granted permission on 22 November 2011 in relation to some of her grounds. Permission was, however, refused on the papers in the case of the Second and Third Claimants. Each of their applications was renewed and they were listed for a "rolled up" hearing along with Ms Gurung's application. The Fourth Claimant seeks leave, his application having been adjourned on 27 January of this year with a view to its being heard at the same time. All are based on similar legal challenges, but it is necessary to introduce the factual background briefly by reference to their individual circumstances.
4. Ms Gurung is nearly 28 years old. She is the daughter of a former Gurkha soldier, who came to the United Kingdom in March 2010. She had come here herself as a student on 24 October 2009 and is now an over-stayer following expiry of her visa on 28 February 2011. Her father had served with the 2^nd Gurkha Rifles (the Sirmoor Rifles) before retiring on 28 December 1984. At that stage Ms Gurung was about six months old.
5. Ms Gurung's evidence is that while she was here she was financially dependent on her father, although she earned some money herself. It was on 27 July 2010 that she submitted her application for indefinite leave to remain as a dependant of her father. She was notified of the refusal by notice dated 27 January 2011. She did not have a right of appeal as at that time she had extant leave. It is to be noted that Collins J refused leave in respect of her first ground, which was based on Article 8 of the European Convention.
6. The Second Claimant, Mr Pun, is 31 years old and the son of a former Gurkha soldier, who served for 16 years with the 7^th Gurkha Rifles. He left the army in 1996, when this Claimant was a minor dependant. The parents were granted indefinite leave to remain in January 2006. Mr Pun entered the United Kingdom from the United States as a visitor in April 2007 and was granted leave to stay until 21 September of that year. Meanwhile, however, he returned to the United States on 8 April 2007 and from there travelled to Nepal, where he made an application for settlement in the United Kingdom as a dependent relative of his parents. That application was refused.
7. He returned to the United Kingdom as a visitor in August 2007 and submitted an application for indefinite leave to remain on 31 August. This too was refused, by letter dated 8 November 2007, and Mr Pun appealed on 16 November of that year.
8. Following the promulgation of the decision by Blake J in Limbu and ors v SSHD [2008] EWHC 2261 (Admin), the Secretary of State reconsidered the refusal of Mr Pun's application and issued a further decision, dated 11 June 2010, also refusing leave to remain. An appeal was dismissed in a determination dated 25 August 2010. Permission to appeal to the Upper Tribunal was refused on 28 September of that year. An application to the Upper Tribunal itself was also refused on 9 December 2010.
9. The Third Claimant, Mr Moti Raj Gurung, is now 27. His father served in the 6^th Gurkha Rifles and retired after 18 years on 2 May 1982 (nearly three years before this Claimant was born).
10. He has never worked for a living and has been supported by his father while studying. He came here in 2007 to study for a postgraduate diploma in IT. He began a full time course of study in July 2011 with a view to obtaining an accountancy qualification. Meanwhile, following the change of policy, his parents obtained leave to settle in the UK and arrived in June 2010. He now lives with them and his fees have been paid by his father. He is said to be dependent on his parents both emotionally and financially.
11. He applied for indefinite leave to remain on 18 May 2011 as a dependant of his father, by which time he had been living with his parents in the UK for almost a year. This was refused on 12 August last year. Since he had leave to remain until 29 August, he was not given a right of appeal. This was challenged in a letter before action and he received a further refusal letter dated 26 September. He was not granted leave under the discretionary criteria and it is said that no regard had been paid to "the Gurkha concession policies applicable to the Claimant". His two older sisters are married. One lives in Hong Kong and the other is married to a Gurkha and lives in the UK.
12. The Fourth Claimant, Mr Rai, is aged 27 and lives here with his parents, having extant leave to remain as student until 14 October 2013. His father served in the 10^th Gurkha Rifles for 28 years, retiring on 30 December 1989. He and his wife obtained leave to settle in the United Kingdom and arrived on 24 May 2010. This Claimant had arrived in 2009 to study biochemistry at the University of Surrey. He has been supported financially, at least in part, by his father. He made an application for indefinite leave to remain on 23 May 2011, as a dependant of his father, but that application was refused by letter dated 28 July 2011.
13. I must now turn to the legislative context. The Claimants challenge the legality of the Secretary of State's policy relating to family members, over the age of 18, who are dependants of foreign and Commonwealth members of Her Majesty's Forces. This includes but is obviously not confined to former Gurkhas. That policy is contained in paragraph 13.2 of Chapter 15, Section 2A of the Immigration Directorates' Instructions ("IDI"), which sets out internal guidance and is used by UK Border Agency staff when dealing with applications. It is relevant to persons who do not qualify for settlement in the United Kingdom under a specific provision of the Immigration Rules. For me, it is thus logical to consider first the relevant provisions of those Rules, contained in paragraph 317.
14. They are concerned with dependent relatives of persons who are present and settled in the United Kingdom. So far as material for present purposes, they are in these terms:

"Requirements for indefinite leave to enter or remain in the United Kingdom as the parent, grandparent or other dependent relative of a person present and settled in the United Kingdom

317. The requirements to be met by a person seeking indefinite leave to enter or remain in the United Kingdom as the parent, grandparent or other dependent relative of a person present and settled in the United Kingdom are that the person:

(i) is related to a person present and settled in the United Kingdom in one of the following ways …

(f) the son, daughter, sister, brother, uncle or aunt over the age of 18 if living alone outside the United Kingdom in the most exceptional compassionate circumstances; and

(ii) is joining or accompanying a person who is present and settled in the United Kingdom or who is on the same occasion being admitted for settlement; and

(iii) is financially wholly or mainly dependent on the relative present and settled in the United Kingdom; and

(iv) can, and will, be accommodated adequately, together with any dependants, without recourse to public funds, in accommodation which the sponsor owns or occupies exclusively; and

(iva) can, and will, be maintained adequately, together with any dependants, without recourse to public funds; and

(v) has no other close relatives in his own country to whom he could turn for financial support; and

(vi) if seeking leave to enter, holds a valid United Kingdom entry clearance for entry in this capacity; and

(vii) does not have one or more unspent convictions within the meaning of the Rehabilitation of Offenders Act 1974."

It is common ground that none of the present Claimants qualifies under the Immigration Rules. That is why they are concerned to challenge the policy whereby the Defendant has a discretion to grant indefinite leave to remain to an individual despite his or her not qualifying under the Immigration Rules.

15. As amended in March 2010, paragraph 13.2 of Chapter 15 Section 2A of IDI, which is relevant in each of the cases with which I am concerned, provides:

"Dependants over the age of 18

Dependants over the age of 18 of foreign and Commonwealth HM Forces members (including Gurkhas) who are not otherwise covered in this guidance would normally need to qualify for settlement in the UK under a specific provision of the Immigration Rules.

In exceptional circumstances discretion may be exercised in individual cases where the dependant is over the age of 18.

However, settlement applications from dependants over the age of 18 who are the children of serving foreign and Commonwealth HM Forces members (including Gurkhas) who meet the requirements of a parent should normally be approved, provided the dependant has previously been granted limited leave to enter or remain in the UK as part of the family unit and they wish to continue to reside and be educated in the UK."

16. It is necessary to take into account also the contents of Annex A to Section 2A which provides further guidance, relevant to Gurkha dependants, as follows:

"Dependants

Discretion will normally be exercised and settlement granted in line with the main applicant for spouses, civil partners, unmarried and same-sex partners and dependent children under the age of 18.

Children over the age of 18 and other dependent relatives will not normally qualify for the exercise of discretion in line with the main applicant and would be expected to qualify for leave to enter or remain in the UK under the relevant provisions of the Immigration Rules, for example under paragraph 317, or under the provisions of Article 8 of the Human Rights Act. Exceptional circumstances may be considered on a case by case basis. For more information on the exceptional circumstances in which discretion may be exercised see Section 13.2."

17. This is the guidance that was applied in the case of each of the Claimants' applications. My attention has been drawn additionally, however, to the earlier wording of Section 13.2, as operating between June 2009 and March 2010:

"Dependants over the age of 18 of foreign and Commonwealth HM Forces members (including Gurkhas) who are not otherwise covered in this guidance would normally need to qualify for settlement in the UK under a specific provision of the Immigration Rules.

However, settlement applications from dependants over the age of 18 who are the children of serving foreign and Commonwealth HM Forces members (including Gurkhas) who meet the requirements of a parent should normally be approved, provided the dependant has previously been granted limited leave to enter or remain in the UK as part of the family unit and they wish to continue to reside and be educated in the UK.

In exceptional circumstances discretion may be exercised in individual cases where the dependant is over the age of 18. In assessing whether settlement in the UK is appropriate, consideration should be given to 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 rules;

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 study 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 rules;

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, discretion may be exercised and settlement granted in the UK."

18. The wording of Annex A to Section 2A corresponded exactly to the later version although, of course, in so far as it referred to Section 13.2, it would at that stage be taken as referring to the earlier and longer version (including the bullet points).
19. I was reminded that it is appropriate when construing the wording of policies not to treat them as though they were statutory. It is necessary to apply a flexible approach: see e.g. UR and others (policy; executive discretion; remittal) Nepal [2010] UKUT 480 (IAC).
20. In opening his case, Mr Drabble QC, on behalf of the Claimants, made clear that they are advancing alternative cases. First, there is a general challenge to the policy as being uncertain, unclear and thus unlawful; in the alternative, it is submitted that the Secretary of State's exercise of her discretion was flawed in each of the individual cases. There is said to have been a lack of transparency.
21. The general attack upon the policy is articulated in various ways. It is said, for example, that it does not reflect the intention behind it. In particular, it is said that Section 13.2 is unlawful because it does not reflect the "devotion and commitment of the Gurkhas and their families to the UK and the British army". This proposition is based, at least in part, upon a statement issued by a former Secretary of State, Mr Blunkett, in 2004:

"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 13 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 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."

22. While those sentiments no doubt reflect the appreciation of citizens throughout the United Kingdom, it is necessary for present purposes to see them in context. The then Secretary of State was considering a new policy which would permit settlement in the United Kingdom of Gurkhas discharged from the army after the "handover" of Hong Kong (provided they had served for at least four years and that their discharge had taken place no more than two years prior to the date of their application for indefinite leave). That policy was reflected from 25 October 2004 in the Immigration Rules. It was not concerned with the admission of Gurkhas who had left the army prior to 1 July 1997. It is difficult, therefore, to use it as an aid to construction in respect of the policy changes implemented in 2009.
23. The Secretary of State's case is that the purpose of the relevant policy is to recognise military service by all foreign and Commonwealth service personnel. It is not specific to the Gurkhas. Furthermore, the purpose was always directed towards what has become known as the phenomenon of the "stranded sibling"; that is to say, to avoid the situation where parents and younger siblings are all located in the United Kingdom and the person concerned, having been allowed to enter as a dependant, has thereafter attained the age of 18. It was felt important to avoid a situation arising where such a person, merely because of having turned 18, was required to leave the United Kingdom and return to the home country alone: see e.g. UG (Nepal), NT and RM (Nepal) and YP (Nepal) v ECO [2012] EWCA Civ 58 at [21].
24. The Claimants found themselves upon some observations of Silber J in Baiai [2006] EWHC 823 (Admin) at [74]-[90] in submitting that "immigration policy has to be rationally linked to its objective": see also at [2008] UKHL 53 at [31]. Mr Pritchard warns, however, that the court should not, in addressing such arguments, be lured into second-guessing policy makers or the legitimate exercise of discretion by those responsible for implementing policy once formulated. In so far as it is appropriate to determine rationality or legality, the court should not be drawn into comparing general statements by politicians which are not necessarily focused on the legislative framework the court has to consider.
25. In this instance, for example, when interpreting the policy in question, I should bear in mind that specific acknowledgments of the great contributions made by the Gurkhas to our national interests over generations should not be allowed to distort the interpretation of legislative provisions, or guidance directives, which are clearly of more general application and not specific to them. The wish to recognise the contribution of Gurkhas who retired before 1997 resulted in their being brought within more general provisions – rather than changing the substance of those provisions or tailoring them to the Gurkhas' particular requirements.
26. I am here concerned with the practical implementation of a policy which has an important role to play in immigration control. It relates to adults who themselves are not "present and settled in the UK", like their parents, and have not "previously been granted limited leave to enter or remain in the UK as part of the family unit". Nor can they "qualify for settlement in the UK under a specific provision of the Immigration Rules" and, therefore, the policy makes clear that, for such a person to gain leave to remain, a decision-maker has to exercise a discretion in his or her favour on an exceptional basis. The applicants and their families might wish that more certain and more favourable provision had been made to cover their circumstances, but I must guard against criticising the policy or seeking to undermine it. I am concerned with its rationality or legality.
27. In this context, I bear in mind paragraph 16 of the Claimants' skeleton argument:

"As part of correcting the historical injustice, provision had to be made for Gurkhas who retired before the 1^st of July 1997 to bring their family units with them to the UK. Just as that includes minor children for Gurkhas applying today on discharge, so too it should include adult children of the former Gurkhas where they remain part of the Gurkha's family unit."

That formulation would appear to be suggesting what the policy should be. It might fairly be said that it ignores or diminishes the careful distinction drawn in the policy between the approach towards those over 18 and those under 18. This clearly provides a rational starting point.

28. It has been suggested that the true purpose underlying the policy was to make it easier for adult dependants of former Gurkhas to settle in the UK. That is, however, to oversimplify and to mischaracterise the objectives. There is clearly a distinction between a wish to make settlement easier in general terms and, on the other hand, a wish simply to ensure that such persons are not excluded automatically. This latter objective can be addressed by providing for a discretion to grant indefinite leave if there are exceptional circumstances to justify doing so. Furthermore, the purpose of the policy obviously extends more widely than Gurkhas. It cannot therefore be defined solely by reference to their adult dependants.
29. I readily accept that it is desirable to have as much predictability as possible in law-making. The law and its practical implementation need to be both accessible and foreseeable: see e.g. Amann v Switzerland (2000) 30 EHRR 843; Al-Nashif v Bulgaria (2003) 36 EHRR 37. Yet, as Mr Drabble himself recognises, that does not preclude provision for the exercise of discretion, judicial or otherwise, where flexibility is needed. Thus, there is nothing inherently unacceptable in providing for "exceptional circumstances". It is in the nature of "exceptional circumstances" that they cannot be exhaustively defined in advance. The question is approached "on a case by case basis". Provision of that kind is intended to cater for unusual occurrences, including those which cannot be predicted. (They are not confined, for example, to "compassionate circumstances".)
30. As I have already noted, the earlier version of Section 13.2 included bullet points which were intended to be helpful to administrators and decision-makers, but they cannot have been intended to represent an exhaustive list of exceptional circumstances. A "tick box" approach would not be appropriate; that is to say, in the sense that an applicant would have to fall within one of the bullet points or face automatic rejection. Likewise, the fact that a person does fall within one or more of the bullet point criteria does not mean that the discretion will be automatically exercised favourably: see again the observations of Tomlinson LJ in UG, cited above, at [21]. There is no reason, however, not to refer to the bullet points as an aide-mémoire, or "prompt", even though they are not set out in the current version.
31. I reject the submission that the policy is flawed for uncertainty. I also reject the argument that it does not rationally reflect its underlying purpose.
32. I must now turn to the second line of attack; that is to say, how the discretion was exercised in the individual cases. Was it irrational in any of these instances to come to the conclusion that there were no exceptional circumstances to justify granting indefinite leave to remain?
33. In the case of the First Claimant, she arrived in the UK shortly before her father and came here as a student. Although he contributed to her financial needs, both before and after his own arrival, she did not come here originally in the capacity of a dependent member of his family. That was not the basis on which she was allowed to enter. She does not fit the "stranded sibling" scenario to which, as I accept, the policy is primarily directed. I can see no exceptional circumstances whether of a compassionate nature or otherwise.
34. The Second Claimant arrived originally as a visitor, from the United States, more than a year after his parents had been granted indefinite leave to remain. His application was carefully considered, more than once, and I can see nothing wrong with the conclusion reached. I cannot identify any exceptional factors.
35. The Third Claimant arrived here as a student several years before his parents settled here. His decision letter makes clear that his application was considered by reference both to the Immigration Rules and to the discretion to address other circumstances. Again, I am unable to discern anything which could be categorised as an exceptional circumstance.
36. The Fourth Claimant, Mr Rai, also began a course of study some months before his parents settled here. He has received financial support from his father, but that in itself does not qualify for exceptional treatment. Nor do I see any other circumstances which could be so categorised.
37. My overall conclusion, therefore, is that I can find nothing to justify challenging the policy or the individual decisions taken by the Secretary of State with regard to these Claimants. Accordingly, I must dismiss the First Claimant's application and refuse permission in respect of the others.