The Entry Clearance Officer, New Delhi v UR & Ors

Where an entry-clearance decision is unlawful because the relevant policy has not been properly applied, the ordinary course is to remit the application to the original decision-maker. An appellate tribunal may instead direct a grant only in the rare case where the policy is absolute on the established facts and no rational outcome other than a grant is possible.

A discretionary policy for adult dependants of former members of HM Forces must be read flexibly. Its purpose of avoiding family separation does not itself create an entitlement to entry clearance. In particular, a policy directed to an adult child living alone abroad does not necessarily govern adult siblings living together.

Three adult children of a former Gurkha sought entry clearance to join their father, who was settled in the United Kingdom. The Entry Clearance Officer refused their applications. The Immigration Judge found that the applicable policy for adult dependants had not been properly applied and directed that entry clearance be granted.

The Entry Clearance Officer appealed only against that direction. The central issue was whether the policy was so absolute on the facts found that the Tribunal could order grants, or whether the applications had to be remitted for the exercise of the Entry Clearance Officer’s discretion.

1. The appeal was allowed in part. The direction requiring grants of entry clearance was set aside. The applications were remitted to the Entry Clearance Officer for fresh decisions under SET 12, read with Chapter 15 of the Immigration Directorates’ Instructions, on the facts found below.

2. The failure properly to apply the relevant policy made the original refusals unlawful. That conclusion did not ordinarily entitle the applicants to entry clearance. Following AG & ors (policies; executive discretions; Tribunal’s powers) Kosovo [2007] UKAIT 82 and SS (jurisdiction – rule 62(7); refugee’s family; policy) Somalia [2005] UKAIT 167, the usual result was remittal so that the executive decision-maker could exercise the discretion entrusted to it.

3. The exceptional alternative of allowing an appeal outright arises only where the policy’s proved terms create a presumption of a grant on the facts, and there is nothing capable of displacing it. SET 12.16 was not absolute here. Its reference to an applicant living alone abroad did not cover adult siblings living together, and the first listed factor was merely a condition precedent to an application. The policies’ relationship was also unclear.

4. In accordance with Pankina [2010] EWCA Civ 719, policies are to be applied flexibly and do not bear the strict construction appropriate to the Immigration Rules.

5. The Tribunal declined to determine Article 8. The respondents had not pursued that ground in their rule 24 response and the evidence did not establish the unusual emotional dependency required for adult children under Kugathas [2003] EWCA Civ 31.

• Upper Tribunal (Immigration and Asylum Chamber): Allowed the Entry Clearance Officer’s appeal to the extent of setting aside the direction to grant entry clearance, and remitted the applications for fresh decisions.
• Immigration Judge: In a determination promulgated on 28 July 2010, found that the relevant policy had not been properly applied and allowed the appeals with directions that entry clearance be granted.