Gurung & Ors, R (on the application of) v Secretary of State for the Home Department

A policy allowing exceptional discretion in immigration cases is not unlawful merely because it lacks an exhaustive definition of exceptional circumstances. Flexibility and case-by-case decision-making may be necessary to accommodate unusual and unforeseeable situations.

Guidance factors are prompts rather than mandatory conditions. Decision-makers must avoid a mechanical tick-box approach. Satisfaction of one or more factors does not require a favourable decision. Adult dependants who do not qualify under the Immigration Rules must demonstrate circumstances sufficiently exceptional to justify settlement.

Four adult children of former Gurkha soldiers challenged refusals of indefinite leave to remain. None qualified under paragraph 317 of the Immigration Rules. They relied on the Secretary of State’s discretionary policy for adult dependants of foreign and Commonwealth members of Her Majesty’s Forces, arguing that the policy was uncertain, irrational and insufficiently transparent.

They also challenged the individual decisions as irrational. The central issues were whether the policy lawfully provided for discretion in exceptional circumstances and whether the Secretary of State had lawfully applied it to the claimants’ circumstances.

1. The claims were dismissed, and permission was refused in the remaining cases. The policy and the individual decisions were lawful.

2. The court rejected the challenge based on uncertainty and irrationality. A policy may legitimately provide for discretion where exceptional circumstances arise. Such circumstances cannot be exhaustively defined in advance, and a case-by-case approach is compatible with accessibility and foreseeability in law.

3. The policy’s purpose was not to make settlement generally easier for adult Gurkha dependants. It was directed principally to avoiding the automatic exclusion of adult dependants, including the “stranded sibling” situation, while preserving a discretion for exceptional cases. The policy applied more widely than to Gurkhas.

4. The earlier bullet points in section 13.2 were guidance for administrators and were not exhaustive. They could be used as an aide-mémoire or prompt. A decision-maker must not require an applicant to satisfy a listed factor before considering the discretion, nor treat satisfaction of a factor as automatically requiring settlement.

5. None of the claimants demonstrated an exceptional circumstance. Their differing routes of entry, timing of arrival, study, residence with parents and financial dependence did not bring their cases within the policy’s exceptional discretion. Financial support alone was insufficient.

First-instance judicial review proceedings. The judgment records no appeal from an earlier decision in the same litigation.