Leave to enter - Indefinite leave - Spouses, children and other dependant relatives - Appellants being refused leave to enter UK

UG (Nepal) v Entry Clearance Officer; NT (Nepal) and another v Entry Clearance Officer; YP (Nepal) v Entry Clearance Officer: CA (Civ Div) (Lady Justice Arden, Lord Justices Sullivan and Tomlinson): 2 February 2012

The instant proceedings concerned three separate appeals which were heard together because they raised similar issues.

In each case, the appellant was the adult child of a former member of the British Army, specifically the Brigade of Gurkhas. The parent in each case had been granted indefinite leave to enter the UK as a discharged member of the army. The appellants applied for entry clearance to the UK in order to join their fathers and settle in the UK within the family unit. At the relevant times, entry clearance guidance was in existence that was intended to inform the exercise of a discretion to grant entry clearance in circumstances which would otherwise not justify the grant of clearance under the Immigration Rules (HC 395).

The guidance was originally contained in the Diplomatic Service Procedures Entry Clearance, Vol 1, General Instructions (December 2007) and was superseded by SET 12: Settlement Entry for former members of HM Forces and Families (the guidance). Various parts of that guidance were relevant only to Gurkhas, their widows or dependants. In respect of dependants aged over 18, the guidance stated that entry clearance officers, in assessing whether settlement in the UK was appropriate, should consider whether: ‘(i) one parent or a relative of the applicant was present and settled, or been admitted for, or been granted, settlement in the UK under the HM Forces rule; (ii) the applicant had previously been granted limited leave as a dependant of a member of HM Forces; (iii) the applicant had been, and wished to continue, pursuing a full-time course of studies in the UK; (iv) refusal of the application meant that the applicant would be living alone outside the UK and was financially dependent on the parent or relative present and settled, or granted settlement in the UK under the HM Forces rule; (v) 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’ (the bullet points).

The bullet points were in identical form in both sets of guidance. All of the appellants’ applications were refused by the entry clearance officer (ECO). In the first appeal, the Upper Tribunal (Immigration and Asylum Chamber) held that the guidance had not been applicable to the appellant, UG, and upheld the refusal of entry clearance. In the second and third appeals, the senior immigration judges held that satisfaction of one or more of the bullet points did not give rise to a presumption in favour of the applicant and that the guidance involved the exercise of a discretion which was for the ECO, and not an immigration judge, to exercise. In the second appeal, the applications were held to be outstanding before the ECO. In the third appeal the application was remitted to the ECO. The appellants appealed.

They submitted that, whereas there was a discretion created in all cases in which bullet point (i) was satisfied, where any one of bullet points (ii) to (v) were additionally satisfied, the guidance created a presumption in favour of entry clearance and that, the secretary of state having identified no countervailing considerations, should direct the grant of entry clearance without further ado.

The court ruled: The thrust of the guidance was not that dependants over the age of 18 would be admitted. The correct interpretation was that entry clearance might be granted to dependants over the age of 18 where settlement in the UK was appropriate. The guidance was discretionary rather than absolute and was to be exercised by the ECO upon the basis of his rounded evaluation of the circumstances in each case. The purpose of the guidance was to recognise military service by all foreign and commonwealth service personnel and to avoid the phenomenon of the stranded sibling whose parents and younger siblings had all relocated to the UK.

The guidance conferred a discretion on the ECO, the exercise of which had to be informed by the objectives of the guidance and had to be rational, but it was not otherwise constrained. The ECO was entitled to pursue lines of enquiry ranging beyond the matters encapsulated in the bullet points. Nominal or even substantial satisfaction of those criteria was not of itself determinative of the critical issue whether settlement in the UK was appropriate, as was rendered obvious by a consideration of the circumstance that absence of relevant criminal convictions was not mentioned in the guidance (see [21], [22], [24], [30], [31] of the judgment).

In the instant cases, it had not been regarded by the ECO as relevant to consider the quality and nature of the circumstances which were said to militate in favour of settlement. Consequently, consideration had focused on matters not relevant to the outcome of the applications. Considerations of fairness and of coherent decision-making required 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 at the time of his decision. The ECO was entitled to take into account developments subsequent to the date of the initial application, insofar as they amounted to a material change of circumstances (see [25], [26], [28], [30], [31] of the judgment).

The second and third appeals would be dismissed. UG’s appeal would be allowed and the application remitted for fresh consideration by the ECO (see [29]-[31] of the judgment).

Richard Drabble QC, Christian Howells and Rebecca Stickler (instructed by NC Brothers & Co) for the appellants; Gerard Clarke (instructed by the Treasury Solicitor) for the ECO.