Leave to remain – Defendant secretary of state rejecting applications – Claimants challenging secretary of state's policy as unlawful on ground of ambiguity
R (on the application of Sharmilla and others) v Secretary of State for the Home Department; and other appeals: Court of Appeal, Civil Division: 21 January 2013
The instant appeals were heard together as they raised common issues as to the lawfulness of the refusal of entry clearance to the dependant adult children of veterans of the Gurkha Brigade who had settled in the UK. The claimants in each case were children of former Gurkha soldiers. In 2004, the British government agreed to change its policy which had had the effect of treating Gurkha veterans less favourably than other comparable non-British Commonwealth soldiers serving in the British army. Accordingly, in 2004, Immigration Rules 276E-K were introduced, which enabled Gurkha veterans that had met the necessary requirements to apply for settlement in the UK.
In June 2009, the defendant secretary of state also announced entry clearance guidance for, inter alia, applications from Gurkhas who were seeking settlement in the UK and contained provisions relating to the dependants of Gurkhas (the 2009 policy). In relation to dependants, Annex A of the 2009 policy provided, inter alia, that children over the age of 18 and other dependant relatives would be expected to qualify for leave to enter or remain in the UK under the relevant provisions rather than qualify for the exercise of discretion with settlement being granted in line with the main applicant (Annex A). However, under Annex A, exceptional circumstances might be considered on a case by case basis. The 2009 policy was superseded (the 2010 policy), however the provisions of Annex A remained.
The 2010 policy was challenged on a number of grounds, including, inter alia, that it was unlawful on the grounds that it was uncertain since its scope was undefined, so that it was not accessible or foreseeable and led to arbitrary decision-making, and that it irrationally frustrated the purpose for which it was originally introduced (the first challenges). It was further submitted that, in light of the 'historic injustice' which the policy was seeking to redress, where an applicant was able to show that he enjoyed family life within the meaning of art 8(1) of the European Convention on Human Rights and that the refusal of entry clearance would interfere with his right to respect for family life, a particular question was how much weight should be given to the historic injustice when the proportionality exercise was being conducted under art 8(2) of the Convention (the second challenges).
In regard to the first challenges, the judge found that the policy was not flawed for uncertainty. On the second challenges, the Upper Tribunal (Immigration and Asylum Chamber) (the tribunal) held that the policy and the scheme behind it was capable of addressing the historic injustice and contained within it a flexibility that, in most cases, would avoid conspicuous unfairness. The tribunal further held that the historic injustice suffered by the Gurkhas carried substantially less weight than the injustice suffered by British Overseas Citizens (BOCs), against whom injustice had been recognised (see for example NH (India) v Entry Clearance Officer  All ER (D) 199 (Dec) and Patel and others v Entry Clearance Officer (Mumbai)  All ER (D) 153 (Jan)). In several of the appeals, the tribunal found that the claimant had not enjoyed family life within the meaning of art 8(1) of the Convention. The claimants in each case appealed.
In relation to the first challenges, it was submitted that a policy which permitted departure from a general rule in 'exceptional circumstances' was lawful only where the general rule itself was clearly defined, so that there was something certain against which to measure the exceptional circumstances, and the 2010 policy had been deprived of any workable criteria. In relation to the second challenges, it was submitted that the historic injustice suffered by the Gurkhas should be accorded substantial weight in the balancing exercise carried out under art 8(2) of the Convention, and the weight to be attached was as strong as the weight that was given to the injustice caused to BOCs.
The court ruled: (1) The general rule stated in the 2010 policy in relation to dependant adult children of Gurkhas was not so ambiguous in its scope as to be misleading as to what would be a sufficient reason to substantiate a discretionary claim to settlement. On the contrary, the general rule was clearly stated in Annex A, and was that dependant adult children would not normally qualify for the exercise of discretion in line with the main applicant. The normal position was that they were normally expected to apply for leave to enter or remain under the relevant provisions of the policy or under the provisions of art 8 of the Convention. There was nothing ambiguous or unclear about that. That was the general position (see  of the judgment).R (on the application of Limbu) v Secretary of State for the Home Department  All ER (D) 122 (Sep) considered.
(2) The historic injustice suffered by the Gurkhas was only one of the factors to be weighed against the need to maintain a firm and fair immigration policy. It was not necessarily determinative. There were differences between the position of Gurkhas and that of the BOCs. As British citizens, BOCs had the indefensible right to settle in the UK, whereas Gurkhas, as citizens of Nepal, would 'normally' be allowed to settle in the UK, but not if there was adverse information of a serious nature about them. The position of Gurkhas was less secure than that of BOCs.
However, unless there was some evidence to suggest that there was a real risk that the Gurkha's adult dependant child might not be given leave to enter, or leave granted to the Gurkha or his child might be abrogated in the future, the difference between Gurkhas and BOCs should be given little weight. A judgment about the egregiousness of the injustice that was suffered by the Gurkhas as compared with that suffered by the BOCs should not be a relevant factor in the balancing exercise. The crucial point was that there was a historic injustice in both cases, the consequence of which was that members of both groups were prevented from settling in the UK. That was why the historic injustice was such an important factor to be taken into account in the balancing exercise and why the applicant dependant child of a Gurkha who had settled in the UK had such a strong claim to have his right under art 8(1) of the Convention vindicated, notwithstanding the potency of the countervailing public interest in the maintaining of a firm immigration policy.
It followed, that the weight to be given to the historic injustice in the Gurkha case was just as strong as the weight to be given to the injustice caused to BOCs. The fact that the right to settle enjoyed by Gurkhas was less secure than that enjoyed by the BOCs was a relevant factor. If a Gurkha was able to show that, but for the historic injustice, he would have settled in the UK at a time when his dependant adult child would have been able to accompany him as a dependant child under the age of 18, that was a strong reason for holding that it was proportionate to permit the adult child to join his family now. To that extent the Gurkha and BOC cases were similar (see , - of the judgment). Huang v Secretary of State for the Home Department; Kasmiri v Secretary of State for the Home Department  4 All ER 15 considered; E B Kosovo (FC) v Secretary of State for the Home Department  4 All ER 28 considered.
(3) The question of whether an individual enjoyed family life was one of fact and depended on a careful consideration of all the relevant facts of the particular case (see  of the judgment). In the case of the claimants in the sixth appeal (NL and SL), the tribunal had been entitled to conclude that, although the usually emotional bonds between parents and their children had been present, the requisite degree of emotional dependence had been absent (see  of the judgment).
Accordingly, the appeals of NL and SL would be dismissed and the remaining appeals would be resolved by the parties by reference to the above if possible (see  of the judgment). Decision of Eady J  All ER (D) 97 (Jun) affirmed.
Richard Drabble QC and Christian Howells (instructed by N.C. Brothers & Co, Reading) for the claimants in the first, second, third, fifth and seventh appealsRaphael Jesurum (instructed by Howe & Co) for the claimants in the fourth appeal; Zane Malik and Darryl Balroop (instructed by Bishop Lloyd Jackson) for the claimants (NL and SL) in the sixth appeal; Christopher Jacobs (instructed by Howe & Co) for the claimant in the eighth appeal; Cathryn McGahey (instructed by the Treasury Solicitor) for the secretary of state.