CT v Secretary of State for the Home Department

The June 2009 reformulation of policy for family members of former Gurkhas superseded the interim undertaking made in Parliament on 29 April 2009.

Guidance permitting discretionary settlement for adult children in exceptional circumstances does not create a presumption that leave must be granted merely because one listed factor is present. Where the policy requires an assessment of current family circumstances and the consequences of living outside the United Kingdom, a decision based solely on materially outdated facts fails to apply the policy lawfully.

The appellant, a Nepalese national and adult daughter of a former Gurkha soldier settled in the United Kingdom, applied for indefinite leave to remain in October 2007. She claimed continuing dependence upon her father.

The Secretary of State refused the application in December 2009 under the Immigration Rules and the discretionary arrangements for Gurkha dependants. The First-tier Tribunal dismissed her appeal, holding that she did not meet paragraph 317 and that removal would not breach article 8. It also declined to examine the application of the Gurkha policy.

On appeal, the Upper Tribunal considered whether the June 2009 policy had been correctly applied despite substantial changes in the appellant's family circumstances during the delay between application and decision.

1. Appeal allowed. The Secretary of State's decision was not in accordance with the law because the applicable Gurkha policy had not been properly applied. The decision was remade only to that extent; the appellant awaited a lawful decision on her October 2007 application.

2. The parliamentary statement of 29 April 2009 was an interim undertaking pending new guidance. The June 2009 guidance was the contemplated new guidance and superseded that undertaking. It therefore created no continuing legitimate expectation that the appellant would not be removed.

3. The applicable in-country guidance was Chapter 15, Section 2A of the Immigration Directorates' Instructions, rather than SET12, which concerned settlement applications made from outside the United Kingdom. Paragraph 13.2 required consideration of exceptional circumstances and specified relevant factors for adult children of former service personnel.

4. The listed factors did not create a presumption that settlement would be granted where one or more applied. They showed only that discretion may be exercised after the required assessment. Accordingly, the conditions described in AG and others [2007] UKAIT 82 for a substantive direction granting leave were not met.

5. However, the policy required an assessment of the applicant's family members and of her position if she lived outside the United Kingdom. The decision had been made more than two years after the application, while relevant family circumstances had changed. It could not lawfully rest solely on the facts existing at the application date. The First-tier Tribunal erred in treating the policy's application as outside its remit.

• Upper Tribunal (Immigration and Asylum Chamber): allowed the appeal on the ground that the Secretary of State's decision was not in accordance with the law.

• First-tier Tribunal: Immigration Judge Sharp dismissed the appeal against the refusal of indefinite leave to remain.