UG (Nepal) & Ors v Entry Clearance Officer

An entry clearance policy for adult dependants of former members of HM Forces creates a discretion, not a presumption or automatic entitlement. The opening statement that a family should not be split solely because a dependant is aged 18 or over means only that age is not itself a bar. The listed factors guide the Entry Clearance Officer but do not exhaust the relevant considerations or determine whether settlement is appropriate. The decision must be rational and informed by the policy’s objectives, including the nature and quality of the applicant’s ties and dependency. Where the application was assessed under the wrong policy, or the necessary rounded evaluation has not occurred, the proper course is remittal to the Entry Clearance Officer rather than a direction to grant clearance.

Four adult dependants of former Gurkha soldiers appealed in three conjoined cases concerning applications for entry clearance to settle in the United Kingdom under guidance for adult dependants of former members of HM Forces.

In three cases, the First-tier Tribunal directed entry clearance after finding that one or more listed factors were present. The Upper Tribunal set those decisions aside, holding that the guidance was discretionary and that the applications remained outstanding. In the fourth case, the Upper Tribunal upheld refusal after treating the family unit as already separated, although the Secretary of State later accepted that approach was wrong.

The central questions were whether the listed factors created a presumption requiring entry clearance, and whether this court should direct substantive grants or remit the applications for lawful reconsideration.

1. Disposition. The appeals of NT, RM and YP were dismissed. UG’s appeal was allowed to the limited extent that the finding concerning severance of the family unit was set aside. All four applications were remitted to the Entry Clearance Officer for reconsideration.
2. The guidance was intended to inform an executive discretion outside the Immigration Rules. Its opening statement did not create a presumption that adult dependants would be admitted. It meant only that attaining majority was not, by itself, a bar to entry clearance. The critical question remained whether settlement in the United Kingdom was appropriate.
3. The five bullet points were relevant factors, not an exhaustive checklist. The first was effectively a condition precedent in the sense that it would ordinarily apply to an applicant seeking to join a settled parent or relative, but it was not a stand-alone entitlement. The remaining factors covered a spectrum of circumstances. Their nominal or substantial satisfaction was not determinative, and the Entry Clearance Officer could consider other material matters, including the nature and quality of the applicant’s association with the United Kingdom, the level of family dependency and relevant criminal convictions.
4. The discretion had to be exercised rationally and by reference to the policy’s objectives. It was not a mechanistic tick-box exercise. The approach in AG and Others (Policies; Executive Discretions; Tribunals Powers) Kosovo [2007] UKAIT 00082, which depended on a policy expressed in absolute terms and criteria giving rise to a presumption, was inapplicable to this differently structured guidance.
5. Remittal was required by fairness and coherent decision-making. Each ECO was to apply the policy in force when the application was made, but assess the facts as found at the time of the fresh decision. Findings of fact endorsed by the Upper Tribunal would bind the ECO, subject to findings based on a flawed construction or expressly made only for the purposes of the appeal. Material subsequent changes could be considered, with fairness observed.

• Court of Appeal (Civil Division): In [2012] EWCA Civ 58, the appeals of NT, RM and YP were dismissed, UG’s appeal was allowed on the severance issue, and all applications were remitted to the ECO.
• Upper Tribunal, Immigration and Asylum Chamber: In the NT, RM and YP appeals, the Upper Tribunal set aside directions requiring entry clearance and substituted decisions that the applications remained outstanding for lawful consideration. In UG’s case, it upheld the refusal after treating the family unit as already separated.
• First-tier Tribunal, Immigration and Asylum Chamber: The appeals of NT, RM and YP were allowed with directions to grant entry clearance. UG’s appeal was also allowed by reference to the relevant policy, although the decision was based in part on the wrong approach.