Leave to remain - Indefinite leave to remain - Claimants applying for judicial review

R (on the application of Gurung and others) v Secretary of State for the Home Department: Queen's Bench Division, Administrative Court (London) (Mr Justice Eady): 15 June 2012

The claimants were all children of former Gurkha soldiers. They were all over 18 years old. They each submitted applications for indefinite leave to remain (ILR) in the UK as dependants of their respective parents. It was common ground that none of the claimants qualified under the Immigration Rules HC395 and that they required the defendant secretary of state to exercise her discretion under the Immigration Directorates' Instructions (IDIs) (the policy) on the basis that the claimants' circumstances were exceptional. The secretary of state rejected each application.

Although all four claimants applied for judicial review of that decision, only the first claimant was successful. At the instant hearing the second to fourth claimants had their renewed applications for permission heard alongside the first claimant's substantive judicial review application.

The claimants submitted that the secretary of state's policy relating to family members, over the age of 18, who were dependants of foreign and Commonwealth members of Her Majesty's Forces, contained in the IDIs, was unlawful on the grounds that the provision for discretion to be exercised in 'exceptional circumstances' was uncertain and unclear. It was further submitted that the secretary of state's exercise of her discretion was flawed in each case. The applications would be dismissed.

(1) Although it was desirable to have as much predictability as possible, there was nothing inherently unacceptable in providing for 'exceptional circumstances'. It was in the nature of 'exceptional circumstances' that they could not be exhaustively defined in advance. The question was approached on a 'case by base basis' (see [29] of the judgment).

The policy related to adults who themselves were not 'present and settled in the UK', like their parents, and had not 'previously been granted limited leave to enter or remain in the UK as part of the family unit'. Nor could they 'qualify for settlement in the UK under a specific provision of the Immigration Rules' and therefore, the policy made clear that, for such a person to gain leave to remain, a decision-maker had to exercise a discretion in his or her favour on an exceptional basis (see [26] of the judgment).

In the instant case, it could not be said that the policy was flawed for uncertainty (see [31] of the judgment). Amann v Switzerland (Application No 27798/95) [2000] ECHR 27798/95 considered; Al-Nashif v Bulgaria (Application 50963/99) [2002] ECHR 50963/99 considered; R (on the application of Baiai) v Secretary of State for the Home Department [2006] 3 All ER 608 considered; R (on the application of Baiai) v Secretary of State for the Home Department; R (on the application of Bigoku) v same; R (on the application of Tilki) v same [2008] 3 All ER 1094 considered; UR and others (policy; executive discretion; remittal) Nepal [2010] UKUT 480 (IAC) considered; UG (Nepal) v Entry Clearance Officer; NT (Nepal) v Entry Clearance Officer; YP (Nepal) v Entry Clearance Officer [2012] All ER (D) 14 (Feb) considered.

(2) In the instant case, there were no exceptional circumstances in each of the claimants' cases. Accordingly, there was no basis for challenging the decisions taken by the secretary of state (see [33]-[37] of the judgment). Accordingly, there was nothing to justify challenging the individual decisions taken by the secretary of state (see [37] of the judgment).

Per curiam: When interpreting the policy in question, a decision maker should bear in mind that specific acknowledgements of the great contributions made by the Gurkhas to the nation's 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 (see [25] of the judgment).

Richard Drabble QC and Christian Howells (instructed by N C Brothers & Co) for the claimants; Simon Pritchard (instructed by the Treasury Solicitor) for the secretary of state.