Entry Clearance Officer, New Delhi v KG

An immigration policy which says that an entry clearance officer may exercise discretion when one or more listed factors are present does not, without more, create a presumption that entry clearance must be granted. Such policies are to be applied flexibly and sensibly, rather than as if they were statutory rules.

Where the relevant policy was not considered, the normal result is that the decision is not in accordance with the law and the application remains outstanding for a lawful decision. An outright grant is appropriate only in the unusual case where the policy’s precise terms create an undisplaced presumption in favour of leave.

An adult child’s dependency arising from mental disability may establish family life beyond normal emotional ties. In the proportionality balance under Article 8, a historic injustice to Gurkha families and a favourable policy may reduce, though not eliminate, the public interest in immigration control.

The respondent, a Nepalese woman aged 35 when she applied, sought entry clearance to join her father in the United Kingdom. Her father was a former Gurkha who had obtained settlement after his retirement from the Brigade of Gurkhas.

The application was refused under the Immigration Rules. The First-tier Tribunal found that the Entry Clearance Officer had failed to consider the policy in Chapter 29.14 of the Entry Clearance Guidance for dependants over 18 of former members of HM Forces. It allowed the appeal outright and directed that entry clearance be granted.

The Entry Clearance Officer challenged that direction. The Upper Tribunal had to decide whether the policy compelled a grant where listed factors were met and, on remaking the decision, whether refusal was compatible with Article 8 of the ECHR.

1. The Tribunal held that the First-tier Tribunal erred in allowing the appeal outright under Chapter 29.14. The policy did not create the precise and undisplaced presumption required for an outright grant under AG & ors (policies; executive discretions; Tribunal’s powers) Kosovo [2007] UKAIT 82. The use of “may” remained discretionary.

2. Chapter 29.14 was not governed by the concession or reasoning in Limbu & ors [2008] EWHC 2261 (Admin). That case concerned the separate policy for former Gurkhas seeking settlement. Chapter 29.14 also covered relatives of other former foreign and Commonwealth members of HM Forces. A literal mandatory construction would make the presence of a settled parent sufficient for all adult relatives, remove the distinction between adult and minor children, and deprive the other criteria of practical effect.

3. Failure to consider the applicable policy made the original decision not in accordance with the law under section 84(1)(e) of the Nationality, Immigration and Asylum Act 2002. The normal consequence was a limited allowance so that a lawful decision could be made. The Tribunal also explained that a direction can be made in an entry-clearance case in the exceptional circumstances identified in AG.

4. On remaking the appeal, the Tribunal applied the five questions in Razgar [2004] UKHL 27. The appellant’s mental condition created dependency on her parents beyond ordinary emotional ties between an adult child and parent. Refusal therefore interfered sufficiently with family life to engage Article 8.

5. The interference was disproportionate. The favourable, though discretionary, policy reduced the normal weight of immigration control. The historic delay in recognising former Gurkhas’ entitlement to settle also reduced that weight to a limited extent. The balance favoured the appellant and her family. The appeal was allowed under Article 8 of the ECHR.

• Upper Tribunal (Immigration and Asylum Chamber): Held that the First-tier Tribunal had erred by directing a grant under the policy, but remade the appeal and allowed it under Article 8 of the ECHR: [2011] UKUT 117 (IAC).

• First-tier Tribunal: Held that failure to consider Chapter 29.14 made the entry-clearance decision not in accordance with the law, allowed the appeal outright, and directed that entry clearance be granted. No citation is stated.