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

A policy may state a clear general rule while permitting departure in exceptional circumstances. The possibility that reasonable decision-makers may differ over exceptionality does not make the policy uncertain or unlawful.

When proportionality is assessed under article 8(2) of the European Convention on Human Rights, historic injustice to Gurkha veterans is an important but not necessarily decisive factor. Where a veteran would otherwise have settled while a dependent child was under 18, that history strongly favours later family reunion.

Family life between parents and adult children is fact-sensitive. Usual emotional ties and financial support alone need not suffice; the decision-maker must examine the nature and degree of dependence, particularly emotional dependence.

The appeals concerned refusals of entry clearance to adult dependent children of Gurkha veterans settled in the United Kingdom. Four appellants challenged the lawfulness of the Secretary of State’s policy for adult dependants. Eady J had dismissed their judicial review claims, holding that the policy was neither uncertain nor contrary to its purpose.

Other appellants challenged Upper Tribunal decisions addressing article 8 of the European Convention on Human Rights. The central questions were the weight attributable to the historic exclusion of Gurkhas from settlement and the circumstances in which adult children enjoy family life with their parents.

The court determined the issues of principle. It separately considered NL and SL, whose appeals depended on whether their financial and emotional relationship with their parents constituted family life.

1. The appeals of NL and SL were dismissed. The remaining appeals were not finally determined. The parties were invited to seek agreement in light of the court’s rulings and, if necessary, submit proposed directions on outstanding issues.

2. The policy for adult dependent children was lawful. Annex A stated a clear normal rule: adult children would not ordinarily receive settlement in line with a Gurkha veteran and were expected to qualify under the Immigration Rules or article 8 of the European Convention on Human Rights. A discretion to depart from that rule in exceptional circumstances did not require an exhaustive definition. Different reasonable decisions on similar facts are an inherent feature of discretion and do not establish unlawful uncertainty.

3. R (Limbu) v Secretary of State for the Home Department [2008] EWHC 2261 (Admin) was distinguishable. Its policy pursued a stated purpose of generosity towards Gurkha veterans while directing attention to their links with the United Kingdom. The present policy concerned adult children and expressly stated that they would not normally receive settlement. Nor did the policy frustrate its purpose: its purpose was not to facilitate settlement by all adult dependent children.

4. The historic injustice suffered by Gurkhas was an important consideration in the article 8(2) proportionality balance, although it was neither automatically decisive nor necessarily identical in weight to the injustice suffered by British Overseas Citizens. The relative moral gravity of the two injustices was irrelevant. The practical difference in the security of the groups’ settlement rights generally deserved little weight unless a real risk of refusal or later abrogation existed.

   If a Gurkha showed that, but for the historic injustice, he would have settled when his now-adult child could have accompanied him as a dependant under 18, that was a strong reason to permit family reunion. The Upper Tribunal therefore erred in treating the injustice as generally carrying substantially less weight and in relying on the policy’s exceptional-circumstances discretion to limit its significance.

5. Whether an adult child enjoys family life with a parent is a highly fact-sensitive question. The tribunal must examine all relevant circumstances, including the nature and degree of dependence. In NL and SL’s cases, the First-tier Tribunal was entitled to find that financial support and the usual emotional bonds did not establish the requisite emotional dependence.

• Court of Appeal (Civil Division): Determined the common issues of principle in [2013] EWCA Civ 8, dismissed NL and SL’s appeals, and invited submissions concerning any unresolved appeals.
• High Court, Administrative Court: Eady J dismissed four applications for judicial review challenging refusals of entry and the lawfulness of the adult-dependant policy.
• Upper Tribunal (Immigration and Asylum Chamber): In several cases, including Ghising [2012] UKUT 00161 (IAC), determined questions concerning historic injustice, proportionality and adult family life. Those determinations formed the subject of appeals to the Court of Appeal.
• First-tier Tribunal: In NL and SL’s cases, found that the adult children did not enjoy family life protected by article 8(1). The Upper Tribunal found no error of law in that conclusion.