KR (Nepal) & Ors v Secretary of State for the Home Department

Permission to appeal should be granted where linked immigration appeals raise important points of principle, including the lawfulness of an entry policy, the relevance and weight of an alleged historic injustice under Article 8, or the scope of Article 8.1, particularly where conflicting decisions below require resolution by the Court of Appeal. Applicants raising such issues should not be excluded at the permission stage. A related challenge to the same policy already being before the Court of Appeal reinforces the case for allowing the appeals to proceed.

The appeals concerned children of former Gurkha servicemen who sought entry to the United Kingdom to live in the same country as their parents. The claims relied principally on Article 8 and the historic injustice said to have resulted from the former refusal to permit Gurkhas to settle in the United Kingdom.

The appeals were brought from the Upper Tribunal (Immigration and Asylum Chamber). They raised common questions concerning the lawfulness of the Secretary of State’s latest policy, the relevance and weight of the historic injustice under Article 8, and whether Article 8.1 had been applied too narrowly in some cases. The Court of Appeal considered whether permission to appeal should be granted.

1. Appeal allowed. The Court of Appeal granted permission to appeal in all the linked cases.
2. The appeals raised important points of principle concerning the lawfulness of the Secretary of State’s policy for deciding whether family members, particularly adult family members, should be admitted. A related challenge to the clarity and lawfulness of that policy was already proceeding to the Court of Appeal.
3. The alleged historic injustice affecting Gurkhas was a significant issue requiring consideration. The appeals raised whether it was relevant under Article 8 and, if so, what weight it should receive when assessing the lawfulness of the Secretary of State’s decision.
4. Some appeals also raised whether the Upper Tribunal had confined Article 8.1 so as to exclude an applicant impermissibly. In light of these issues and conflicting decisions below, it would be wrong to prevent applicants from raising them. The court would consider how the permissions should proceed.
5. Lord Justice Rix agreed with Lord Justice Stanley Burnton. The formal order was: “Appeal allowed.”

• Upper Tribunal (Immigration and Asylum Chamber): The appeals arose from decisions in appeal nos OA/14615/2010 and OA/14617/2010. The judgment records conflicting decisions below but gives no neutral citation.
• Court of Appeal (Civil Division): Permission to appeal was granted in all the linked cases, and the formal order was “Appeal allowed”.