Tribunal decisions

The decision

JR/3633/2016

Upper Tribunal
Immigration and Asylum Chamber

Judicial Review Decision Notice

The Queen on the application of Yashoda Burja Thapa and Sarmila Burja Thapa
Applicants
v

Secretary of State for the Home Department
Respondent

Before Upper Tribunal Judge Hanson

Application for judicial review: substantive decision

Having considered all documents lodged and having heard the parties' respective representatives, Mr D Ball, of Counsel, instructed by Howe & Co Solicitors, on behalf of the Applicant and Mr D Mitchell, of Counsel, instructed by the Government Legal Department, on behalf of the Respondent, at a hearing at Field House, London on 17 February 2017.

Decision: the application for judicial review is refused

1. This claim, dated 4 April 2016, challenges the respondent's decision to grant the applicants' 33 months limited leave to enter as opposed to Indefinite Leave to Enter (ILE). The date of the impugned decision is the 6 January 2016.
2. Permission to bring judicial review was granted on the papers by Upper Tribunal Judge Rintoul on 28 June 2016 on all grounds "on the facts and in the absence of an acknowledgment of service".
3. A detailed chronology is set out at [9] of the applicants' grounds and paragraph 3 of the respondents Detailed Grounds of Defence. There is no dispute between the parties in relation to the same and which shows the following:

14/01/1980
Applicants' father, Prem Raj Burji enlisted in the British Army (Gurkha Regiment).
09/07/1987
First applicant was born
11/07/1989
Second applicant was born
05/05/1992
Applicants' sibling, Pabitra Kumari Thapa, born.
13/01/1995
Father discharged
08/11/2009
Father granted Indefinite Leave to Enter (ILE)
20/05/2010
Applicants' mother, Yam Kumari Burja Thapa, granted ILE
24/11/2010
Applicants' sibling Pabitra granted ILE
18/12/2010
Father arrives in the UK
30/04/2012
Applicants' mother arrives in the UK with Pabitra
07/10/2013
Applicants applied for leave to enter the UK outside the Immigration Rules
12/12/2013
Applicants were refused leave to enter with a right of appeal
19/02/2015
Applicants' appeal to the First-tier Tribunal was allowed on human rights grounds
22/09/2015
The SSHD's application for permission to appeal to the Upper Tribunal was refused
06/01/2016
The applicants were issued with leave to enter outside the Rules for 33 months valid from 06/01/2016 until 06/10/2016 by an Entry Clearance Officer.
09/03/2016
The applicants issued pre-action letter to SSHD, received by the SSHD on 14/03/2016
16/03/2016
The SSHD sent her response to the applicants' pre-action letter
04/04/2016
Applicants lodged this claim for judicial review

4. The applicant's Grounds assert that:

a. The respondent's decision is unlawful, unreasonable and disproportionate as it failed to take into account the guidance on indefinite leave outside the Rules and the specific nature of the historic injustice; and
b. The applicant has a legitimate expectation.

5. I say at the outset that the assertion by Mr Ball, on behalf of the applicants, that every overage dependant of a former Gurkha soldier is entitled to a grant of indefinite leave to enter or remain is incorrect. It is a proposition not supported by the case law which recognises that even those who may be so entitled on the basis of dependency upon their father, and ability to satisfy the necessary criteria set out in the respondent's policies/guidance/IDIs, can still be refused leave or granted a limited period of leave.
6. This case is not about challenging the respondent's decision in relation to the grant of leave, as there is no dispute concerning the applicants' entitlement to some form of leave following the decision of the First-tier Tribunal who allowed their appeals on Article 8 grounds, it is a challenge to the duration and nature of the leave granted.

7. Mr Ball submitted that the respondent's policies indicate that indefinite leave to remain would be granted in the absence of exceptional circumstances. Mr Ball submitted that the respondent failed to set out what in this matter amounts to such exceptional circumstances and the only element that it is submitted would satisfy this term is the historic injustice, which favours the applicants, and which is relevant to the finding regarding Article 8 ECHR. In relation to the family circumstances, the 'historic wrong', and the applicants' fathers previous service as a member of the Brigade of Gurkhas, the respondent appears to accept these are exceptional circumstances, leading to it being asserted that the respondent has, therefore, not correctly applied her policy to the facts of this case.
8. Mr Ball submitted that the applicants are prejudiced by the nature of the limited leave granted to them, as they will have to apply again in the future before they are entitled to a grant of ILR, which may be harder for them to succeed with on the basis that any family life they may have in the United Kingdom with their parents may no longer exist. I observe in relation to this argument that this puts the applicants in no worse a position than any other individual granted a period of limited leave under the staged settlement approach to ILR. It is not necessarily the case that the applicants will have to rely upon the same protected right at a later date that they relied on relation to the application leading to the appeal before the First-tier Tribunal, as they may have established other family or private lives at the relevant time. Whether a person is entitled to ILR is a fact specific assessment at the time any application is made at which point such entitlement must be made out. It has not been shown that this is unfair to the applicants or prejudices their position such as to make the decision unfair or arguably irrational.
9. The applicants seek to rely upon several documents as the sources of the policy/guidance it is submitted supports their arguments including:

Diplomatic Service Procedures, Chapter 29, paragraph 29.13.
Settlement Entry Clearance Guidance - Chapter 12 para 12.16.
IDI Chapter 15, section 2A, para 13.2 - June 2009.
IDI Chapter 15, section 2A, para 13.2 - March 2010.
IDI, Chapter 15, Section 2A, Annex K - January 2015.
IDI, chapter 1, Section 14 - leave Outside the Rules.
Asylum Policy Instructions Discretionary Leave.

10. It is important to remember that the impugned decision was made by an Entry Clearance Officer for, as recognised in UG, NT, RM, and YP (Nepal) v Entry Clearance Officer [2012] EWCA Civ 58, the policy in the IDIs may not be applicable to applications for entry clearance. Such sources may only have effect in relation to applications made 'in-country' which, if applicable, does not arguably assist the applicants in challenging the decision of the Entry Clearance Officer.
11. In relation to the respondent's policy for leave outside the rules, it is accepted the applicants will face difficulties under the policy as their father could not settle under the HM Forces rule and they could not meet the requirements numbered 1, 2, or 3 of the 2006 policy, although this was replaced by SET 12 in June 2009. This was revoked and replaced by the Immigration Directorate Instruction in March 2010.

12. The respondent's policies provide a route for settlement for dependants and in relation to that dated March 2010, states "Children over the age of 18 and other dependent relatives will not normally qualify for the exercise of discretion in line with the main applicant and will 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 the Human 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". That section of the policy states "Dependants over the age of 18 are 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. In exceptional circumstances discretion may be exercised in individual cases where the dependent is over the age of 18." Reference in that section to dependent adult children of serving foreign and Commonwealth HM Forces members is not applicable as the applicants' father is a former member of the Brigade of Gurkhas and not a serving member.
13. In relation to a person seeking leave to enter outside the Immigration Rules, the Tribunal has been referred to the Immigration Directorate Instructions, Chapter 14 dated April 2006 and specifically to paragraphs 3.1 and 3.2 which are in the following terms: (LOTR being shorthand for 'Leave outside the Rules')

3.1 Limited LOTR

An application for LOTR under any of the immigration concessions must be strictly considered in line with the relevant policy instructions. If it is decided that LOTR should be granted, then limited leave should be granted for a specified period for the necessary duration of stay required. Likewise, where it is decided to grant leave because of particular compelling reasons, limited leave should only be granted in accordance with the individual circumstances of the case, again only for the necessary duration of stay required.

The granting of limited LOTR should not convey any expectation of further leave or eventual settlement. As soon as the period of limited LOTR comes to an end, the person will be expected to leave the UK unless he applies to extend his leave, or has an entitlement to remain on some other basis.

3.2 Indefinite LOTR

Most persons applying to stay in the United Kingdom will require leave for only a specific, limited period (see para 3.1. above). However, there may be a very limited number of instances where it is considered appropriate to grant indefinite LOTR because the particular compelling circumstances of the individual case are such that it is almost certain that there will be no change in circumstances within five years.

14. It is not disputed on behalf of the respondent that the power to grant indefinite leave outside the Rules exists but it was not considered appropriate on the facts of this case to do so. It is accepted that efforts to obtain a detailed explanation from the decision maker have not borne fruit, with the response from the Entry Clearance Officer being that he or she had been instructed to grant a period of limited leave to enter of 33 months.

15. The grant of leave for 33 months is said to have been in accordance with the respondent's guidance at the relevant time for those who succeeded with an appeal on human rights grounds. This statement has not been shown to be an incorrect reflection of the relevant policy instructions referred to in paragraph 3.1.
16. The respondent's case is that such a grant was proportionate as it allowed the applicants to continue their family life in the United Kingdom giving effect to the First-tier Tribunal decision that the interference with that family life caused by the refusal of leave to enter was not proportionate. The First-tier Tribunal's decision was in accordance with the case law and policy designed to deal with the historic injustice point that had previously arisen in Gurkha cases. The policies are designed to stop families who may otherwise be prevented from continuing a family life that they have enjoyed from losing the same as a result of the historic injustice issue. The applicants' appeals were allowed by the First-tier Tribunal and the grant of leave to enter outside the Rules deals with this specific issue, as it has allowed the applicants to enter the United Kingdom and continue their family life together. Such period of leave shall continue to 6 October 2018 during which time the applicants will be able to work or study. The only prohibition or limitation upon them appears to be that they are not permitted to seek recourse to public funds, although the First-tier Tribunal found that the family is self-sufficient in relation to maintenance and accommodation, indicating this is not a live issue.
17. Mr Ball submitted that the respondent has fettered the exercise of discretion and not considered the policy on leave outside the Rules, especially as no consideration had been given to the reference to there being no change in the applicants' circumstances within the five-year period. Although there is no specific reference to this element in the limited explanation for the period of grant, a normal practice is that reasons are not given if leave is granted. The applicants are adults and the basis of the decision of the First-tier Tribunal is clear. The First-tier judge was satisfied that family life recognised by article 8 existed within this family unit at that time. That family life is said to arise as a result of the applicants remaining dependent upon their father and not having formed independent lives of their own. As noted, the first applicant was born on 9 July 1987 and the second applicant on 11 July 1989 and so are aged 29 and 28 respectively now. It is reasonable to assume they will wish to get on with their respective lives which may include forming relationships and setting up their own homes. What was not shown, based on the evidence before the decision maker, was that it was almost certain that there will be no change in their circumstances within five years. The wording of paragraph 3.2 is very specific. Whilst not ruling out the possibility of ILR it introduces a high threshold of it being "almost certain". It has not been made out on the basis of the information before the decision maker, or submissions made to this Tribunal, that this is a case in which this element arguably assists the applicants in their challenge.
18. It was submitted that the core of this case is the historic injustice argument. There have been a number of Tribunal decisions in relating to that specific element some of which were relied upon by the parties during their submissions.
19. It is not disputed as a general statement of law that adult children may be able to show family life recognised by Article 8 if they are dependent on their parents;
See Kugathas v the Secretary of State for the Home Department [2003] INLR 170, Ghishing (family life - adults - Gurkha policy) [2012] UKUT 160 (IAC) and Singh [2015] EWCA Civ 630.
20. It is also important to remember the purpose behind the policies relating to overage Gurkha children. In Gurung v SSHD [2012] EWHC 1629 it was held that the true underlying purpose of the policy concerning Gurkhas was not to make it easier for adult dependants of former Gurkhas to settle in the UK and accordingly, the application challenging the rationality of that policy had to be dismissed. This Tribunal finds that the purpose of the policy is to keep families together and to prevent separation as a result of the historic injustice applicable to former members of the Brigade of Gurkhas.
21. In relation to the historic wrong argument, in R (on the application of Sharmilla Gurung and others) v SSHD [2013] EWCA Civ 8 it was held that the historic injustice suffered by Gurkhas was only one factor to be weighed against immigration control under Article 8. It was not necessarily determinative. If a Gurkha could show that, but for the historic injustice, he would have settled in the UK at a time when his dependent (now) adult child would have been able to accompany him as a dependent minor child, that was a strong reason for holding that it was disproportionate to permit the adult child to join his family now.
22. In Patel, Modha and Odedara v ECO (Mumbai) (2010) EWCA Civ 17 the Court of Appeal recognised that one could set out to compensate for a historical wrong, but one could not reverse the passage of time. Where children had grown up and embarked on lives of their own, the bonds which constituted family life would no longer be there and Article 8 would have no purchase. However, what might constitute an extant family life fell well short of what constituted dependency. Many adult children might still have a family life with parents settled in the UK, not by leave or by force of circumstance, but by long delayed right. That was what gave the historical wrong a potential relevance to Article 8 claims. That did not make the ECHR a mechanism for turning back the clock, but it did make the historical wrong potentially relevant to the application of Article 8(2). If, by the time the adult children sought entry they were no longer part of the family life of the BOC who had finally secured citizenship in the UK, the threshold of Article 8 would not be crossed and the proportionality of excluding them would not be an issue. If they came within the protection of Article 8(1) however, the balance of factors determining proportionality for the purposes of Article 8(2) would be influenced by the historical wrong, perhaps decisively.
23. In Ghising and others (Ghurkhas/BOCs: historic wrong; weight) [2013] UKUT 00567 (IAC) it was held that (i) In finding that the weight to be accorded to the historic wrong in Ghurkha ex-servicemen cases was not to be regarded as less than that to be accorded the historic wrong suffered by British Overseas citizens, the Court of Appeal in Gurung and others [2013] EWCA Civ 8 did not hold that, in either Gurkha or BOC cases, the effect of the historic wrong is to reverse or otherwise alter the burden of proof that applies in Article 8 proportionality assessments; (ii) When an Appellant has shown that there is family/private life and the decision made by the Respondent amounts to an interference with it, the burden lies with the Respondent to show that a decision to remove is proportionate (although Appellants will, in practice, bear the responsibility of adducing evidence that lies within their remit and about which the Respondent may be unaware); (iii) What concerned the Court in Gurung and others was not the burden of proof but, rather, the issue of weight in a proportionality assessment. The Court held that, as in the case of BOCs, the historic wrong suffered by Gurkha ex-servicemen should be given substantial weight; (iv) Accordingly, where it is found that Article 8 is engaged and, but for the historic wrong, the Appellant would have been settled in the UK long ago, this will ordinarily determine the outcome of the Article 8 proportionality assessment in an Appellant's favour, where the matters relied on by the SSHD/ ECO consist solely of the public interest in maintaining a firm immigration policy; (v) It can therefore be seen that Appellants in Gurkha (and BOC) cases will not necessarily succeed, even though (a) their family life engages Article 8(1); and (b) the evidence shows they would have come to the United Kingdom with their father, but for the injustice that prevented the latter from settling here earlier. If the Respondent can point to matters over and above the public interest in maintaining a firm immigration policy, which argue in favour of removal or the refusal of leave to enter, these matters must be given appropriate weight in the balance in the Respondent's favour. Thus, a bad immigration history and/or criminal behaviour may still be sufficient to outweigh the powerful factors bearing on the Appellant's side of the balance.
24. These cases go to the core issue that the historic wrong prevented families who may have wanted to come to the United Kingdom and live together, had they been permitted to do so on the retirement of the former member of the Brigade of Gurkhas, from doing so. This can be remedied in some cases by a grant of leave following the guidance provided in these cases and the relevant policies/IDIs.
25. The decision-maker was clearly aware of the facts as set out in the First-tier Tribunal decision and the reason why that appeal was allowed. As noted in Patel, Modha and Odedara, the historic wrong does not make the Convention a mechanism for turning the clock back but does make both the history and its admitted injustices potentially relevant as to the application of article 8 (2). [14]. That is the context in relation to which the historic wrong argument is applied. What the Courts do not say in any of the cases dealing with Gurkha appeals, and what the First-tier Tribunal Judge did not do in the applicants' appeals, is give any direction or guidance in relation to what period of leave must be given in the event a person is entitled to succeed under article 8 (2) based on an historic wrong argument. That is left to be considered by the respondent on a fact by fact basis in accordance with published policies.
26. A further relevant case is that of IT (Sierra Leone) v Secretary of State for the Home Department [2010] EWCA Civ 787. Pill LJ, in the lead judgement, stated:

14. The point has arisen in an application for judicial review of a decision of the respondent to granted discretionary leave to remain in the UK for three years along with a refusal to grant ILR in R (Islam Shahid) v Secretary of state for the Home Department [2004] EWHC 2550 (Admin). Gibbs J put it appropriately at paragraph 45:

"In my judgement, even taking the understandable criticism made of the Secretary of State by the [immigration judge] at their highest, they do not render the Secretary of State's decision to grant discretionary rather than indefinite leave irrational. It is certainly true that there is no particular reason to think that the claimant's circumstances will change in the next two or three years so as adversely to affect consideration of his case under the policy. But I cannot see that that is in itself a reason to grant indefinite leave to remain. As I have said, a change in circumstances is at least a significant possibility."

Gibb J added, at paragraph 47:

"The application of the Secretary of State's [then] policy, together with the decision itself, makes it likely that in the absence of any substantial change of circumstances the claimant will in due course qualify for indefinite leave to remain. If he, for any reason, in future receives an unfavourable decision from the Secretary of State despite no substantial change of circumstances he will be entitled to a human rights appeal against that decision. However, as I have said, the policy itself indicates a presumption in favour of the claimant being permitted to remain indefinitely in this country provided that there is no substantial change of circumstances or reason to the contrary."

15. Following a successful article 8 appeal, the respondent cannot remove the appellant but it is for her to decide whether to exercise her discretion to grant leave to remain and, if so, for how long. It was for the respondent, and not the Tribunal, to decide the length of leave to remain. If a further attempt to remove were to be made, the article 8 submission could be repeated, as contemplated in Islam Shahid. There was nothing irrational in limiting leave to remain to 3 years. Events might occur during that period which would seriously damage the appellants claim that he should be permitted to remain under article 8 grounds.

27. In R (on the application of Norjabee Alladin) and others v Secretary of State for the home Department [2014] EWCA Civ 1334, the Court of Appeal set out the issues in paragraph 1 of their judgment in the following terms:

"the principal issue in these two appeals is whether the decisions of the Secretary of State for the Home Department ("the Secretary of State") to give limited (discretionary) leave to remain ("DLR") as opposed to indefinite leave to remain ("ILR") are unlawful because they were given in breach of the Secretary of State's duty under Section 55 of the Borders Citizenship and Immigration Act 2009."

28. Whilst it is accepted that section 55 is not relevant to this case, a challenge to a decision to grant a period of limited leave which is said to be in breach of a positive obligation upon the respondent, is similar to the nature of the challenge this Tribunal is considering.
29. In giving the lead judgment Floyd LJ stated at paragraph 58 and 59:

58. That said, however, I should not grant a judicial review in the present case unless the appellants can show a real prospect that the Secretary of State might, if directed to retake the decisions according to the guidance, come to a different decision. Put another way, have the appellants demonstrated that the error of law on which they rely (be it following an inflexible policy or failing to have regard to the section 55 duty) is a material one?

59. There can, in my judgment, be no doubt that the Secretary of State is entitled in principle to adopt a staged approach to settlement. Even where children are the applicants, it does not follow that the Secretary of State is bound, on the first application, to grant ILR. The considerations outlined in the evidence of Mr Gallagher amount to factors which are worthy of consideration, and deserve to be placed in the balance after the best interests and welfare of the children have been considered. It follows that an applicant who wishes to persuade the Secretary of State to grant leave for a period longer than that provided for by the staged settlement policy has to do more than point to the fact that she is a child."

30. In this case, it is arguable that having benefited from the historic injustice argument when the First-tier Tribunal was considering the proportionality of the decision, the applicants need to do more than just rely on the fact that they are dependent relatives of former member of the Brigade of Gurkhas. No such element was made out in either the information given to the First-tier Tribunal or following the appeal been allowed.
31. The published guidance relating to grants of leave outside the Rules does not prevent the Secretary of State considering whether to grant ILR if certain circumstances exist, but none were shown to exist on the basis of the available evidence. The published guidance does make unlawful a grant of a limited period of leave, per se.
32. The challenge to the grant has not been shown to be contrary to the provisions of public policy or the Immigration Rules and is therefore arguably only susceptible to challenge on Wednesbury grounds. This introduces a standard of reasonableness. A reasoning or decision is Wednesbury unreasonable, or irrational, only if it is so unreasonable that no reasonable person acting reasonably could have made it. This is a different and stricter test than merely showing that the decision was unreasonable. On the facts of this case, the applicants have failed to establish that the respondent's decision is irrational or unlawful.
33. In relation to the second ground, that of legitimate expectation, the characteristics of legitimate expectation depend upon the context and category of case being considered but include (i) clear promise or settled practice (ii) engendering an expected advantage, (iii) whether procedural or substantive.
34. In relation to the argument that the legitimate expectation arises by comparison with other directly equivalent cases of adult dependants of Gurkha veterans who had their appeals allowed on human rights grounds by the Tribunal and who were then granted indefinite leave to enter, as now endorsed in the 2015 policy, it has not been established on the basis of the information made available to this tribunal that there is a pattern of conduct undertaken by the Secretary of State when dealing with such cases to grant ILR such as to create a valid legitimate expectation that others within the same category will have a similar status conferred upon them. Insufficient evidence was provided to support this contention. If the applicants are able to benefit from the 2015 policy, it is always open to them make such application which can be further considered by the Secretary of State.
35. The respondent relies upon the decision of the Court of Appeal in R (on the application of Niazi) v Secretary of State for the home Department [2008] EWCA Civ 755 in which Laws LJ confirmed that the law recognises three categories of legitimate expectation:

a. If the public policy has distinctly promised to consult those affected or potentially affected by a change of policy, then ordinarily it must consult (according to Laws LJ., the "paradigm cases" of procedural expectation);
b. if, without any promise, the public authority has established a policy distinctly and substantially affecting a specific person or group who in the circumstances was in reason entitled to rely on its continuance and did so, then ordinarily it must consult before affecting any change (the "secondary case" of procedural expectation");
c. the public authority has distinctly promised to preserve an existing policy for a specific person or group who would be substantially affected by the change, then ordinarily must keep its promise ("substantive" legitimate expectation"

36. The underlying problem with the legitimate expectation argument is the need to show that the grant of 33 months limited leave to enter amounts to an act so unfair as to perpetrate an abuse of power. In relation to the facts known to the decision maker, and to this Tribunal, such an abuse of power has not been made out and no clear, unambiguous and unqualified representations that ILR would be granted have been shown to exist.
37. It is accepted that there will no doubt be individuals who may have ordinarily been eligible for a grant of 33 months limited LOTR but who have been granted indefinite leave on the same basis. The appellants, at paragraph 15 of their Reply, refer to two examples but it is not made out that such a small sample amounts to an established course of conduct on the part of the respondent giving rise to a legitimate expectation.
38. Mr Ball made a specific disclosure application which was refused by Upper Tribunal Judge Remington on the 1 February 2017 for the following reasons:

"In the circumstances and further to Rule 5(3) of the Tribunal Procedure (Upper Tribunal) Rules 2008 I refuse the application for disclosure of the number of grants for Indefinite Leave to Enter grants versus Limited Leave to Enter, to adult dependents of Gurkha veterans in the last six years. The request was made to the Entry Clearance Manager only on the 28 October 2016 and remains outstanding. They do not appear to have been any chasing letters. Secondly, the purpose of this request, the real significance and how this would assist in these proceedings as opposed to being a research exercise, is not adequately made out in the application, particularly in the light of the relevant Policy and Guidance on Leave Outside the Rules which refers to the 'compelling circumstances of the individual case'. All applications and Grants of Leave will be fact specific".

The reasoning reflects the criteria for granting leave which confers a discretion upon the Secretary of State to regulate decisions concerning leave outside the Immigration Rules. It was submitted on the respondent's behalf that the "legitimate expectation" relied upon by Mr Ball would effectively fetter the respondent's decision-making in favour of the uniform grant of indefinite leave to all adult dependant Gurkha children. This will be so and the assertion by the applicants that this is the reality of the position, regardless of such consequence, I find is a proposition that has not been shown to have arguable merit.
39. As stated above, the historic injustice argument is not determinative of a period of grant of leave. Guidance regarding grants of ILR is just that, guidance. It is not made out that the respondent is not entitled to have a staged structure before a person acquires settlement, in those cases in which it has not been shown appropriate to grant ILR in the first instance.
40. It has also not been shown that the impact of the grant of limited LOTR is such that makes the same arguably disproportionate or irrational or that there is any legal obligation or necessity on the facts of this case for any other form of leave to be granted. It has therefore not been shown that there is any basis on which the applicants have established a viable challenge to the impugned decision on public law grounds.

Signed:

Upper Tribunal Judge Hanson

Dated: 10 April 2017

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