Entry Clearance Officer - Kathmandu v Dik Prasad Pun & Anor

A policy allowing settlement outside the Immigration Rules for adult dependants of former members of HM Forces creates a real and broad discretion. The listed factors identify relevant considerations. They do not create an entitlement, or a presumption, that entry clearance must be granted when one or more is met.

Where a policy decision is unlawful, the usual result is remittal for a lawful exercise of the respondent's discretion. A substantive direction is exceptional and requires facts on which no lawful adverse decision is open. An Article 8 appeal remains separate. The Tribunal may take the Rules and relevant policy into account when assessing proportionality, but may not use Article 8 to exercise the respondent's policy discretion.

Four conjoined appeals concerned adult relatives of former Gurkha soldiers who had settled, or were to settle, in the United Kingdom. Each application for entry clearance had been considered under the policy in Chapter 29.14 of the Diplomatic Service Procedures, later reproduced in SET 12.

The First-tier Tribunal had made differing decisions. Some appeals were allowed because the judge treated the policy as creating a presumption in favour of entry clearance. Others were decided on Article 8 grounds after findings of financial and emotional dependency.

The Upper Tribunal first determined the common issue: whether an unlawful policy decision required a grant of entry clearance or remittal for a fresh discretionary decision. It then considered whether the individual Article 8 decisions could stand.

1. The conjoined appeals were allowed in part. The Tribunal held that Chapter 29.14 of the Diplomatic Service Procedures and SET 12 conferred a broad discretion outside the Immigration Rules. The bullet points were relevant, non-exhaustive factors. Their fulfilment did not create a presumption, still less an entitlement, to entry clearance.

2. The policy had to be read as a whole and flexibly. The first factor could not alone justify settlement because it would be met by virtually every applicant seeking to join a qualifying sponsor. The remaining factors covered a broad range of fact-sensitive circumstances. The Tribunal approved the approach in AG and others (Policies; executive discretions; Tribunal’s powers) (Kosovo) [2007] UKAIT 82: ordinarily, a successful appeal based on an unlawfully applied discretionary policy results in remittal. A substantive grant is possible only in the narrow case where no rational adverse decision is open.

3. An Article 8 claim is a separate exercise from a claim that the policy discretion should have been exercised favourably. The Tribunal may consider the Rules and a relevant policy when assessing the legitimate aim and proportionality of interference with family life. It must not, however, use Article 8 as a means of exercising the respondent's discretion.

4. Family life between an adult child and a parent depends on the facts. Financial dependency need not be one of necessity. A dependency maintained to permit further study may be relevant, although contrived dependency carries little weight. The relevant inquiry is whether the relationship goes beyond normal emotional ties and whether refusal is proportionate.

5. The first and fourth appeals remained allowed on Article 8 grounds despite errors in the policy reasoning. The second appeal was remitted for fresh decisions under the policy and, if appropriate, Article 8. The respondent's appeal in the third case was dismissed because the First-tier Tribunal's Article 8 decision was lawfully open to it.

• Upper Tribunal (Immigration and Asylum Chamber): Conjoined appeals determined in [2011] UKUT 377 (IAC). The Tribunal corrected errors in the First-tier Tribunal's treatment of the discretionary policy, remitted the second appeal, and upheld the Article 8 outcomes in the first, third and fourth appeals.
• First-tier Tribunal: Unreported decisions on applications for entry clearance by adult dependent relatives of former Gurkha soldiers. The decisions variously allowed, dismissed, or allowed on Article 8 grounds the underlying appeals.