Limbu & Ors, R (on the application of) v Secretary of State for the Home Department & Ors

A published immigration discretion must state its scope clearly enough to guide officials, applicants and appellate bodies. It is unlawful where its stated purpose recognises an historic injustice but its examples appear to exclude, or leave materially unclear, relevant considerations capable of demonstrating a compelling connection with the United Kingdom.

Equality analysis requires comparison of groups that are sufficiently similarly situated, not identical in every respect. Pre-1997 Gurkha veterans were not sufficiently comparable with other non-British soldiers to require identical treatment. The distinction made from July 1997 was rational because the Gurkhas’ base, residence patterns and service circumstances had materially changed.

Six Gurkha veterans and a widow challenged refusals of entry clearance for settlement in the United Kingdom. Their military service had ended before 1 July 1997, and they could not satisfy the post-2004 Immigration Rules concerning discharge date and timing of application.

The claimants had appealed to the Asylum and Immigration Tribunal and challenged both the refusal of wide disclosure and the legality of the Home Office’s discretionary policy for pre-1997 Gurkha veterans. The central issues were whether the policy unlawfully discriminated against Gurkhas compared with other non-British soldiers, and whether its stated factors unlawfully excluded relevant considerations such as long or distinguished military service.

The claims succeeded in part. The discrimination challenge failed, but the challenge to the terms and clarity of the discretionary policy succeeded. Relief was reserved for further submissions.

1. Race discrimination. The difference in treatment concerned nationality and immigration status, not racial identity. The statutory provisions governing immigration therefore answered the claim under the Race Relations Act 1976.
2. Equality and comparators. Applying the approach in Carson v Secretary of State for Work and Pensions [2005] UKHL 37 and AL Rudi v SSHD [2008] 1 WLR 1434, the court considered whether Gurkhas and other non-British soldiers were sufficiently similarly situated to require explanation and justification. They were not. Gurkhas were recruited under a historical exception, retained Nepalese nationality, served in a distinct brigade with special terms, were generally based overseas and were discharged in Nepal. Those differences justified different treatment before July 1997.
3. July 1997. The relocation of the Brigade’s headquarters to the United Kingdom materially altered residence, recruitment and service patterns. Selecting July 1997 as the date from which a right, rather than a discretion, to settle accrued was therefore rational. The decisions in Purja [2004] 1 WLR 289 and Gurung and Shrestha [2008] EWHC 1496 (Admin) provided relevant comparisons concerning the distinct Gurkha terms of service.
4. Policy legality. A discretionary scheme supplementing the Immigration Rules remains reviewable where its terms, as understood and applied, irrationally frustrate the purpose stated by the Minister. Published instructions must be transparent, foreseeable and sufficiently precise to protect against arbitrary decisions. The standard was illustrated by Al Nashif v Bulgaria 36 EHRR 37.
5. Application. The policy’s examples focused on residence, family links and health, while leaving unclear whether long service, injury, gallantry, Falklands service or comparable matters could independently justify settlement. It therefore either irrationally excluded potentially decisive considerations or failed to explain its scope. The policy required urgent reconsideration. The court did not prescribe the content of a replacement policy; individual decisions could be set aside and redetermined after the Home Office’s response.

This was a first-instance judicial review. The claimants had appealed the entry-clearance refusals to the Asylum and Immigration Tribunal. In June 2008 the Tribunal’s Deputy President ruled that the wide disclosure sought could not be ordered. On 15 July 2008 Sullivan J granted permission for judicial review of the policy issue and stayed the Tribunal proceedings pending this judgment.