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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Gurung & Ors, R (on the application of) v Secretary of State for the Home Department [2013] EWCA Civ 8 (21 January 2013) URL: https://www.bailii.org/ew/cases/EWCA/Civ/2013/8.html Cite as: [2013] INLR 634, [2013] EWCA Civ 8, [2013] WLR 2546, [2013] WLR(D) 21, [2013] Imm AR 651, [2013] 1 WLR 2546 |
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C5/2012/1199, C5/2012/0795, C5/2012/1264, C5/2012/1377 & C5/2012/1774 |
(C4/2012/1578)_ ON APPEAL FROM THE HIGH COURT OF JUSTICE, QUEEN'S BENCH DIVISION, ADMINISTRATIVE COURT
MR JUSTICE EADY
CO34632011
(C5/2012/0795, C5/2012/1091, C5/2012/1199, C5/2012/0795, C5/2012/1264, C5/2012/1377 & C5/2012/1774) ON APPEAL FROM THE UPPER TRIBUNAL (IMMIGRATION AND ASYLUM CHAMBER
THE UPPER TRIBUNAL
OA114142011, OA228742010, OA268882012OA2689020, IA183892011, OA146152010/14617, IA097542011, IA235152011
Strand, London, WC2A 2LL |
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B e f o r e :
LORD JUSTICE SULLIVAN
and
LORD JUSTICE PATTEN
____________________
(C4/2012/1578) THE QUEEN ON THE APPLICATION OF SHARMILLA GURUNG, RIJEN PUN, MOTI RAJ GURUNG & TIKA CHANDRA RAI |
Appellant |
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- and - |
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THE SECRETARY OF STATE FOR THE HOME DEPARTMENT (C5/2012/0795) NR (NEPAL) - and – THE SECRETARY OF STATE FOR THE HOME DEPARTMENT (C5/2012/1091) RG (NEPAL) - and – THE SECRETARY OF STATE FOR THE HOME DEPARTMENT (C5/2012/1199) KR, YR & CR (NEPAL) - and – ENTRY CLEARANCE OFFICER, DELHI (C5/2012/0975) SG (NEPAL) - and – THE SECRETARY OF STATE FOR THE HOME DEPARTMENT (C5/2012/1264) NL and SL (NEPAL) - and – ENTRY CLEARANCE OFFICER (C5/2012/1377) GR (NEPAL) - and – THE SECRETARY OF STATE FOR THE HOME DEPARTMENT (C5/2012/1774) ROSHAN GHSING (NEPAL) - and – THE SECRETARY OF STATE FOR THE HOME DEPARTMENT |
Respondent |
____________________
WordWave International Limited
A Merrill Communications Company
165 Fleet Street, London EC4A 2DY
Tel No: 020 7404 1400, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
Mr Richard Drabble QC and Mr Christian Howells (instructed by Messrs N.C. Brothers & Co) for the Appellant
Ms Cathryn McGahey (instructed by The Treasury Solicitor) for the Respondent
(C5/2012/0795)
Mr Richard Drabble QC and Mr Christian Howells (instructed by Messrs N.C. Brothers & Co) for the Appellant
Ms Cathryn McGahey (instructed by The Treasury Solicitor) for the Respondent
(C5/2012/1091)
Mr Richard Drabble QC and Mr Christian Howells (instructed by Messrs N.C. Brothers & Co) for the Appellant
Ms Cathryn McGahey (instructed by The Treasury Solicitor) for the Respondent
(C5/2012/1199)
Raphael Jesurum ...instructed by Howe & Co) for the Appellant
Ms Cathryn McGahey (instructed by The Treasury Solicitor) for the Respondent
(C5/2012/0975)
Mr Richard Drabble QC and Mr Christian Howells (instructed by Messrs N.C. Brothers & Co) for the Appellant
Ms Cathryn McGahey (instructed by The Treasury Solicitor) for the Respondent
(C5/2012/1264)
Mr Zane Malik and Mr Darryl Balroop ...instructed by Bishop Lloyd Jackson) for the Appellant
Ms Cathryn McGahey (instructed by The Treasury Solicitor) for the Respondent
(C5/2012/1377)
Mr Richard Drabble QC and Mr Christian Howells (instructed by Messrs N.C. Brothers & Co) for the Appellant
Ms Cathryn McGahey (instructed by The Treasury Solicitor) for the Respondent
(C5/2012/1774)
Mr Christopher Jacobs (instructed by Howe & Co) for the Appellant
Ms Cathryn McGahey (instructed by The Treasury Solicitor) for the Respondent
Hearing dates: 11 & 12 December 2012
____________________
____________________
Crown Copyright ©
Master of the Rolls: this is the judgment of the court.
Relevant Rules and Policies
"I am very keen to ensure that we recognise their role in the history of our country and the part they have played in protecting us. That is why we have put together the best possible package to enable discharged Gurkhas to apply for settlement and citizenship. I hope that the decision I have made today will make our gratitude clear. Those high military standards have been mirrored by their demeanour in civilian life. Their families too have shown devotion and commitment by travelling across continents to support the Brigade."
"It is not the intention to split a family unit solely because a dependant is 18 years of age or over. Applications for settlement from dependants who are 18 years of age or over will be considered and discretion to grant settlement outside the Rules may be exercised in individual cases…... In assessing whether settlement in the UK is appropriate, consideration should be given to the following factors:
- One parent or a relative of the applicant is present and settled or is being admitted for, or being granted settlement in the UK under the HM Forces rule;
- The applicant has previously been granted limited leave as a dependant of a member of HM Forces;
- The applicant has been, and wishes to continue, pursuing a full time course of study in the UK;
- Refusal of the application would mean that the applicant would be living alone outside the UK and is financially dependant on the parent or relative present and settled, or being granted settlement in the UK under the HM Forces rule;
- The applicant would find it very difficult to function because of illness or disability without the help and support of their parents or close relatives in the UIK.
If one or more of the factors listed above are present, discretion may be exercised and settlement granted in the UK."
"Dependants over the age of 18 of foreign and Commonwealth HM Forces members (including Gurkhas) who are not otherwise covered in this guidance would normally need to qualify for settlement in the UK under a specific provision of the Immigration Rules.
However, settlement applications from dependants over the age of 18 who are the children of serving foreign and Commonwealth HM Forces members (including Gurkhas) who meet the requirements of a parent should normally be approved, provided the dependant has previously been granted limited leave to enter or remain in the UK as part of the family unit and they wish to continue to reside and be educated in the UK.
In exceptional circumstances discretion may be exercised in individual cases where the dependant is over the age of 18.
- one parent or relative of the applicant is present and settled or being admitted for, or being granted settlement in the UK under the HM Forces rule;
- the applicant has previously been granted limited leave as a dependant of a member of HM Forces
- the applicant has been, and wishes to continue, pursuing a full time course of study in the UK.
- Refusal of the application would mean that the applicant would be living alone outside the UK and is financially dependent on the parent or relative present and settled, or being granted settlement in the UK under the HM Forces rules;
- The applicant would find it very difficult to function because of illness or disability without the help and support of their parent or close relative in the UK.
If one or more of the factors listed above are present, discretion may be exercised and settlement granted in the UK."
"Dependants
Discretion will normally be exercised and settlement granted in line with the main applicant for spouses, civil partners, unmarried and same-sex partners and dependant children under the age of 18.
Children over the age of 18 and other dependant relatives will not normally qualify for the exercise of discretion in line with the main applicant and would be expected to qualify for leave to enter or remain in the UK under the relevant provisions of the Immigration Rules, for example under paragraph 317, or under the provisions of Article 8 of theHuman Rights Act
. Exceptional circumstances may be considered on a case by case basis. For more information on the exceptional circumstances in which discretion may be exercised see Section 13.2."
The issues
The four appeals from Eady J
Uncertainty of the policy
"The vice of the present situation is that the language used in the policy can be used to pursue a range of different policy objectives. A decision-maker might consider that s/he should be looking for something akin to, but slightly more generous, than 'compelling compassionate circumstances'. Or s/he might consider that the policy was a suitable route to give effect to the historic injustice [suffered by the Gurkhas]…."
"Transparency and clarity are significant requirements of instructions to immigration and entry clearance officers that are published to the world at large, generate expectations of fair treatment and bind appellate bodies in the performance of their statutory functions. The policy under challenge in this case either irrationally excluded material and potentially decisive considerations that the context and the stated purpose of the policy indicate should have been included; alternatively, it was so ambiguous as to the expression of its scope as to mislead applicants, entry clearance officers and immigration judges alike as to what was a sufficient reason to substantiate a discretionary claim to settlement here."
"40. The Convention principle of legality requires the court to address itself to three distinct questions. The first is whether there is a legal basis in domestic law for the restriction. The second is whether the law or rule in question is sufficiently accessible to the individual who is affected by the restriction, and sufficiently precise to enable him to understand its scope and foresee the consequences of his actions so that he can regulate his conduct without breaking the law. The third is whether, assuming that these two requirements are satisfied, it is nevertheless open to the criticism that is being applied in a way that is arbitrary ……
41. ……. [the word 'law'] has been held to include both enactments of lower rank than statutes and unwritten law. Furthermore, it implies qualitative requirements, including those of accessibility and foreseeability. Accessibility means that an individual must know from the wording of the relevant provision and, if need be, with the assistance of the court's interpretation of it what acts and omissions will make him criminally liable… The requirement of foreseeability will be satisfied where the person concerned is able to foresee, if need be with appropriate legal advice, the consequences which a given action may entail. A law which confers a discretion is not in itself inconsistent with this requirement, provided the scope of the discretion and the manner of its exercise are indicated with sufficient clarity to give the individual protection against interference which is arbitrary."
"65. Transparency, clarity, and the avoidance of results that are contrary to common sense or are arbitrary are aspects of the principle of legality to be applied by the courts in judicial review. They are well exemplified by the jurisprudence of the European Court on Human Rights on the term "in accordance with the law". Thus in Al Nashif (loc cit) the Court at [139] repeated its consistent case law that the phrase implies:
"the legal basis must be accessible and foreseeable. A rule's effects are foreseeable if it is formulated with sufficient precision to enable any individual– if need be with appropriate advice- to regulate his conduct…the law must indicate the scope of any such discretion with sufficient clarity to give the individual adequate protection against arbitrary interference"."
Frustration of the purposes of the policy
The historic injustice and article 8(2) of the ECHR
"83. On the basis of this history, we consider that we ought to apply the principle which the Court of Appeal has developed in the cases concerning British Overseas Citizens, namely, that the historic injustice and its consequences are to be taken into account when assessing proportionality under Article 8(2). Indeed, at the hearing of this appeal, the Respondent did not dispute that there had been an historic injustice perpetrated towards Gurkhas, which ought to be taken into account in the Article 8(2) assessment (although Mr Bramble did not concede that the outcome of the assessment would be that removal would be a breach of Article 8(2)).
84. However, it is important to bear in mind that there are significant differences between the position of Gurkhas and that of British Overseas Citizens. Gurkhas were citizens of Nepal, not the UK. They were not entitled as of a right to live in the UK. Moreover, the exclusion of British Overseas Citizens has been formally recognised as racially and sexually discriminatory, unlike the policy excluding Gurkhas. We therefore agree with the conclusion of Judge McKee in KG that the 'historical wrong' perpetrated upon Gurkhas was not as severe as that perpetrated upon British Overseas Citizens. In our view, it carries substantially less weight.
"Conclusion
112. Our conclusion is that the removal of the Appellant to Nepal will severely interfere with his family life, and the family life of his mother. It would not be reasonable to expect Mrs Rana to re-locate back to Nepal. The distance between the UK and Nepal means that the scope for family visits will be limited. Although his sister and other relatives are not part of his core family, for the purposes of Article 8, his separation from them will constitute an interference with his private life. He has been in the UK since 2008 and has developed friendships and a life here.
113. There is no evidence in this case that the Appellant's father would have settled in the UK after discharge from the Gurkha Brigade if he had been able to do so, although we accept it is a possibility.
114. We have asked ourselves whether the removal of the Appellant is necessary in a democratic society, that is to say, whether it is justified by a pressing social need and proportionate to the legitimate aim pursued.
115. In our judgment, removal is justified and proportionate because of the public interest in a firm and consistent immigration policy. Because of the exceptional position of Gurkha veterans, and their families, the Respondent has made special provision for their entry to the UK outside the Immigration Rules, long after the date of their discharge from the armed forces. This is an acknowledgement that it is in the public interest to remedy an historic injustice in the UK Government's previous treatment of Gurkha veterans.
116. The Respondent has distinguished between Gurkha veterans, their wives and minor children on the one hand, who will generally be given leave to remain, and adult children on the other, who will only be given leave to remain in exceptional circumstances. Given that the Gurkhas are Nepali nationals, this is not inherently unfair or in breach of human rights. As Lord Bingham said in Huang, at [6], a line has to be drawn somewhere.
117. In considering a claim of 'exceptional circumstances', the Respondent can, and should, take into account the fact that an adult dependant would have been able to enter the UK as a minor if his father had been given leave to enter at the appropriate time, shortly after discharge.
118. The scheme that the Respondent has developed is, therefore, capable of addressing the historical wrong and contains within it a flexibility that, in most cases, will avoid conspicuous unfairness. Furthermore, although not an Immigration Rule, the Respondent could not properly fail to adopt the obligation set out in paragraph 2 of the rules, namely, that decision-makers within the Home Office and UKBA should perform their duties so as to comply with the provisions of theHuman Rights Act 1998. In particular, the judicious recognition of exceptional circumstances in the case of an adult dependant.
119. Notwithstanding this, the ambit of Article 8 is not circumscribed and, as stated in paragraphs 83 and 84 above, the historic injustice and its consequences must be taken into account when assessing proportionality as reducing the importance normally attached to immigration control. Nevertheless, for the reasons we have given in paragraphs 83 and 84 above, as well as what we have said in paragraph 112 and following, its impact is limited. In the circumstances of the present case, taken together, it does not cause the balance to operate in favour of this Appellant leading us to conclude that removal is disproportionate."
"If, however, they come within the protection of art 8(1), the balance of factors determining proportionality for the purposes of art 8(2) will be influenced, perhaps decisively, by the fact (if it is a fact) that, but for the history recounted in NH (India), the family would or might have settled here long ago. "
"…..there is a relevant distinction between settlement here as a foreign national by leave or by force of circumstances and settlement here by right as a British citizen. The imperatives which govern family reunion, and which therefore affect the proportionality of refusal, are likely to be very different: and so may be the effect of family members reaching their majority."
16. …….. Secondly, if Gurkhas had not had to wait until 2004 before becoming able to settle in the United Kingdom, it would have been possible for the appellant to come to this country while she was still a minor. This may not be an 'historical wrong' as severe as that perpetrated upon female British Overseas citizens, which played a part in the Article 8 balancing exercise conducted by a Presidential panel of the Tribunal in NH (female BOCs, exceptionality, Art 8, para 317) India [2006] UKAIT 85, and subsequently approved in NH (India) [2007] EWCA Civ 1330. But it was acknowledged by same Home Secretary that it had been wrong to prevent Gurkhas from settling here with their families in the past. Mr Howells handed up the case of JB (India) [2009] EWCA Civ 234, in which Lord Justice Sullivan acknowledges that "where there is an interference with family life sufficient to engage Article 8(1), recognition that the family has been the victim of a 'historic injustice' may well be relevant, in some cases highly relevant, when the proportionality of the interference is considered under Article 8(2)." In the present case, the long overdue recognition that Gurkhas should have had their service to this country rewarded by being allowed to settle here does reduce the weight to be put into the public interest side of the balance, even if not by very much."
"16. The authority will wish to consider and weigh all that tells in favour of the refusal of leave which is challenged, with particular reference to justification under article 8(2). There will, in almost any case, be certain general considerations to bear in mind: the general administrative desirability of applying known rules if a system of immigration control is to be workable, predictable, consistent and fair as between one applicant and another; the damage to good administration and effective control if a system is perceived by applicants internationally to be unduly porous, unpredictable or perfunctory; the need to discourage non-nationals admitted to the country temporarily from believing that they can commit serious crimes and yet be allowed to remain; the need to discourage fraud, deception and deliberate breaches of the law; and so on."
"…there is in general no alternative to making a careful and informed evaluation of the facts of the particular case. The search for a hard-edged or bright-line rule to be applied to the generality of cases is incompatible with the difficult evaluative exercise which article 8 requires."
What constitutes family life within the meaning of article 8(1)
The appeals of NL and SL
"The sponsor stated that they have regular contact with each other, but there was no real evidence about how the Appellants related to their parents and the effect on them of being separated from their parents or what emotional sustenance they received from their parents."
Conclusion