Gurung v The Entry Clearance Officer, New Delhi

On an appeal against refusal of entry clearance, section 85A(2) of the Immigration, Asylum and Nationality Act 2002 confines the tribunal to circumstances existing at the date of the decision under appeal. A refusal is not split into separate decisions because the application was advanced on different legal bases. An Article 8 claim must therefore be assessed by reference to the fresh refusal following remittal, not the earlier refusal. Delay or procedural error may be relevant to proportionality, but only within that assessment; it does not retrospectively change the relevant decision date.

The appellant, a Nepalese national and adult son of a former Gurkha, sought entry clearance to join his parents in the United Kingdom. The Entry Clearance Officer refused the application in 2010. The First-tier Tribunal allowed the appeal under policy SET12 without deciding the Article 8 claim. The Upper Tribunal remitted the application for reconsideration. A fresh refusal was made on 12 March 2012. The First-tier Tribunal dismissed the subsequent appeal, assessing the Article 8 claim by reference to the later decision, and the Upper Tribunal dismissed a further appeal.

Before the Court of Appeal, the appellant argued that the first refusal governed the Article 8 claim, or that it was unfair to rely on later facts because the passage of time had weakened his case. The central issue was the relevant decision date and the proper treatment of delay.

The appeal was dismissed.

1. The application for entry clearance was a single, undifferentiated application advanced on several legal bases. The Entry Clearance Officer’s refusal was likewise a single decision. After the first refusal was remitted for reconsideration, the fresh refusal of 12 March 2012 was the decision under appeal. The Article 8 issue therefore had to be revisited and could not be treated as surviving separately from the first decision.
2. Section 85(4) of the Immigration, Asylum and Nationality Act 2002 states the general rule that the tribunal determines an appeal on the evidence before it. Section 85(5) makes that rule subject to section 85A. Because refusal of entry clearance falls within section 82(2)(b), section 85A(2) required consideration only of the circumstances appertaining at the date of the 2012 decision.
3. The appellant’s reliance on Secretary of State for the Home Department v Greenwood was misplaced. That decision did not address the present issue and referred to the application remaining outstanding. The policy guidance in UG (Nepal) v Entry Clearance Officer concerned remittal under an immigration policy, not the assessment of an Article 8 claim.
4. The approach was consistent with EB (Kosovo) v Secretary of State for the Home Department: the decision-maker must have regard to the facts and policy in force when the decision is made. Delay may be relevant within the Article 8 proportionality assessment, including where culpable delay produces a seriously unfair outcome, but it does not require the tribunal to assess the claim as at an earlier date. R (TN (Afghanistan)) v Secretary of State for the Home Department reflected a similar broad approach, although it concerned asylum and humanitarian protection rather than Article 8.
5. The court additionally observed that unfairness arising from the procedural history could in principle form part of the circumstances appertaining at the decision date. The point could not assist the appellant. The finding that Article 8 was not engaged was no longer challenged, and the circumstances relied on were essentially the same in 2010 and 2012.

1. Court of Appeal (Civil Division) — On 7 April 2016, the court dismissed the appeal: [2016] EWCA Civ 358.
2. Upper Tribunal (Immigration and Asylum Chamber) — Deputy Upper Tribunal Judge Peart dismissed the appellant’s appeal in a determination promulgated on 23 September 2013.
3. First-tier Tribunal — First-tier Tribunal Judge Hembrough dismissed the appeal in a determination promulgated on 8 May 2013.
4. Entry Clearance Officer — A fresh refusal was made on 12 March 2012 following remittal.
5. Upper Tribunal (Immigration and Asylum Chamber) — Deputy Upper Tribunal Judge Eshun allowed the Entry Clearance Officer’s appeal to the extent of remitting the application for reconsideration under the correct policy, in a determination promulgated on 3 November 2011.
6. First-tier Tribunal — Immigration Judge Elvidge allowed the appellant’s appeal on 16 December 2010 under policy SET12, without determining the Article 8 claim.