Tribunal decisions

The decision

IAC-AH-sc-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: OA/04582/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 5 December 2016
On 13 March 2017

Before

UPPER TRIBUNAL JUDGE RINTOUL

Between

MRS Pabitra Diyali
(ANONYMITY DIRECTION NOT MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr C Howells of Counsel, N. C. Brothers & Co Solicitors
For the Respondent: Mr I Jarvis, Home Office Presenting Officer

DECISION AND REASONS
1. The appellant, who is a citizen of Nepal, is the widow of a former Ghurkha soldier. It is her case that she was entitled to entry clearance to the United Kingdom to settle on that basis but her application was refused by the respondent on 16 January 2015 on the basis that he was not satisfied that she is the widow of the late Dhanbir Chetri and thus did not benefit from the discretionary guidance. Her appeal against that decision came before First-tier Tribunal Judge Birk sitting at Birmingham on 23 May 2016. In a decision promulgated on 1 June 2016 Judge Birk concluded that the appellant is the widow of the late Dhanbir Chetri but dismissed the appeal under the Human Rights Convention on the basis it has not been demonstrated that Article 8 had been engaged.
2. The appellant sought permission to appeal on the grounds that the judge had erred:-
(i) that the judge had erred in not allowing the appeal on the grounds that the decision was not in accordance with the law as permitted within Section 84(1)(e) of the Nationality, Immigration and Asylum Act 2002, that provision still applying to this appeal on the basis of Article 9 of the Immigration Act 2014 (Commencement No. 3, Transitional and Saving Provisions) Order 2014 (SI201/2771); and
(ii) that the appeal should be allowed on this basis but a decision was not in accordance with the law as the respondent had unlawfully refused to apply the relevant policy to the appellant, considering only Article 8 of the Human Rights Convention.
3. Permission to appeal on all grounds was granted by First-tier Tribunal Judge Easterman on 21 October 2016.
4. At the outset of the hearing I asked both parties to address me whether, as appeared to be the case from the refusal notice, this is an appeal in which there was only a restricted right of appeal by operation of Section 88(2)(d) of the 2002 Act.
5. Mr Howells submitted that properly understood, the purpose for which the appellant had sought entry clearance to the United Kingdom, that is as the widow of a former Ghurkha, did fall within the purpose of the Immigration Rules, given the provisions of Appendix Armed Forces. He submitted that the meaning of “purpose” within Section 88 could not be so narrowly construed as to apply to those cases in which a person could not, as here, meet the individual requirements of the Immigration Rules.
6. Mr Howells submitted further that, were I to conclude that the grounds of appeal were not limited, that I should set aside the decision of the First-tier Tribunal and substitute a decision allowing it outright on the basis that there was no option for an exercise of the respondent’s discretion other than to grant entry clearance. He submitted that in the alternative, were I not satisfied that that was so, a direction should be given for the respondent to reconsider the case.
7. Mr Jarvis submitted that entry clearance had not been sought for a purpose covered by the Immigration Rules. The entirety of the provisions relating to Ghurkhas who had retired as long ago as the appellant’s widow were covered entirely by discretionary policy outside the Immigration Rules. He further submitted that in any event the appeal could only be allowed to the extent that the decision of the respondent was not in accordance with the law and the matter ought to be reconsidered.
8. Mr Howells accepted that if there were only a restricted right of appeal then he had little to say as to why the decision involved the making of an error of law.
The Law
9. I am satisfied that at the date of the decision and the date of the appeal Section 88(2) of the 2002 Act was still in force by operation of the relevant transitional provisions. Section 88 provide as follows: -
88 Ineligibility
(1) This Section applies to an immigration decision of a kind referred to in Section 82(2)(a), (b), (d) or (e).
(2) A person may not appeal under Section 82(1) against an immigration decision which is taken on the grounds that he or a person of whom he is a dependent –
...
(d) is seeking to enter or remain in the United Kingdom for a purpose other than one for which entry or remaining is permitted in accordance with the Immigration Rules.
...
(4) Subsection (2) does not prevent the bringing of an appeal on any or all of the grounds referred to in Section 84(1)(b), (c) and (g).
10. A refusal of entry clearance is an immigration decision by operation of Section 82(2)(b) and thus the requirement of Section 88(1) is met. It is not suggested either that either of the grounds set out in Section 84(1)(b) or (g) are engaged.
11. The position of veterans of the Ghurkha Brigade and their family whilst, historically less favourable than that of other comparable non-British Commonwealth soldiers serving in the army, as Mr Howells helpfully submits the position is set out in some detail in Gurung and Others v SSHD [2013] EWCA Civ 8 at [2] to [11].
12. It is of note that in 2004 the Immigration Rules were amended to enable Ghurkha veterans to apply for settlement in the United Kingdom but this applied only to those who had been discharged on or after 1 July 1997, at the same time a policy outside the Rules was introduced which permitted Ghurkhas to settle in the United Kingdom even if they had been discharged before 1 July 1997. That policy was replaced in January 2009 and was again amended in 2010. Whilst Gurung relates to the position of children of Gurkhas, the position of spouses and for that matter widows was different. It is of note that at [11] the Court of Appeal noted that the policies should be considered against the background of the Immigration Rules. It is, I consider to analyse carefully the relevant policies.
13. As noted in Gurung at [5] the first iteration of the policy was in the diplomatic service procedures which are cited in R (Limbu) [2008] EWHC 2261. I note what is quoted in Limbu at [3] is as follows:-
3 The second is central to the present application for judicial review. It is to be found in the Diplomatic Service Procedures (DSP): Entry Clearance Volume 1 General Instructions. Chapter 29 of these instructions is entitled "Settlement entry for former members of HM Forces and their dependants". Chapter 29.4 is in the following terms:-
"29.4 Discretion-Gurkhas
In addition to the discretion exercised during the transitional period, discretion may also be exercised by ECOs in individual cases where an applicant dos not meet the requirement of discharge from the British Army in Nepal after 1st July 1997, or discharge not more than 2 years prior to the date of application. Discretion may be exercised to waive these requirements in cases where there are strong reasons why settlement in the UK is appropriate. For example, consideration should be given to the following factors:
- Strength of ties with the UK- have they spent a significant amount of time living in the UK, such as a three year tour of duty pre-discharge or 3 years living in the UK after discharge?
- Do they have any close family living in the UK? What proportion of their close family are in the UK as opposed to living in Nepal?
- Do they have children being educated in the UK?
- Do they have a chronic/long-term medical condition where treatment in the UK would significantly improve quality of life?
If one or more of the factors listed above are present, ECOs may exercise discretion and grant entry clearance for settlement in the UK.
Close family means immediate family, such as brothers, sisters, children, parents or grandparents.
The requirements for an applicant to have completed at least four years’ service as a Gurkha with the British Army and to have been discharged on completion of their engagement should not be waived".
(Emphasis supplied)
14. It is, I consider significant that the policy is expressed as being in the form of the waiver of specific requirements of the Immigration Rules as to when discharge must have taken place. It is not expressed as a separate standalone category. The current policy is set out in Annex A to chapter 15 Section 2a of the Immigration Directorate Instructions. Under the heading “Discretionary Arrangements for Former Ghurkhas Discharged before 1 July 1997” the guidance provides as follows:-
“Applications from former members of the Brigade of Gurkhas discharged before 1 July 1997 should be considered for the exercise of discretion under this guidance. These discretionary arrangements are supplementary to the existing provisions of the Immigration Rules.”
15. Also of note is Annex B which relates to the discretionary arrangements for former Ghurkha widows whose husbands were discharged before 1 July 1997. It is also stated:
“This scheme recognises the unique nature of the service given by the Brigade of Gurkhas and is offered to them and their widows alone on an exceptional basis.
Widows of former Ghurkhas discharged prior to 1997 may apply for settlement. The applicant should qualify for settlement if it can be shown that her late husband and former Ghurkha would have met the criteria set out at Annex A above.”
16. It is necessary to consider the position of widows of servicemen in general as provided for in the guidance. Again, this involved in the case of widows who are outside the United Kingdom an exercise of discretion should be considered. Bereaved partners are also catered for in the current version of Appendix Armed Forces guidance being in HM Forces: Partners and Children Version 3 which is part of the modernised guidance. The issue is clearly aligned with the Immigration Rules. Again, I note that there are discretions to be exercised in the sense of special provisions for members of HM Forces where previously a relevant member of HM Forces had not been able to meet the eligibility requirements.
17. It is, at this point appropriate to consider the wording of the refusal notice which materially provides as follows:-
“You are seeking entry to the UK as the widow of an ex-Ghurkha. Applications in this category are discretionary and considered outside of the Rules under a discretionary policy forwarded to the widows of ex-Ghurkha soldiers who were discharged before 01/07/1997. Given the discrepancies I have mentioned above and the fact that I am not satisfied that you are the wife of the late Dhanbir Chetri leads me to conclude that you do not qualify or benefit from the discretionary guidance.
In light of this, I am not satisfied that entry is being sought for a purpose covered by the Immigration Rules and therefore your application attracts a limited right of appeal.”
18. Mr Howells submits the support for his proposition that entry clearance was being sought for a purpose covered by the Immigration Rules can be drawn from the phrase “in light of this” which he submits relates to the fact that the respondent was not satisfied that the appellant is the wife of the late Dhanbir Chetri. Mr Jarvis submits to the contrary, that properly construed it is a clear recognition that the entire process of application is discretionary and outside the Rules in a policy.
19. I concur with Mr Jarvis’ submissions. Reading these passages as a whole, it is clear that the respondent was of the view that consideration of applications by widows of ex-Ghurkhas were to be conducts outside the rules. I do not consider that the phrase “in light of this” can properly be construed as referring only to the discrepancies; on the contrary, it is referring to the whole of the preceding paragraph which includes the description of these types of applications falling outside the rules.
20. There has been little judicial consideration of Section 88(2)(d) other than in AM (Section 88(2): restriction on grounds) Ghana [2009] UKAIT 0002:
“14. As we have indicated, the words of the statute exclude the appeal if the decision is taken on the grounds identified. The phrase is not “is stated to have been taken”. One would normally expect the notice of decision to be, or to include, the authoritative indication of the grounds upon which a decision has been taken. Whilst not wishing to depart from that principle as a general rule, the wording of the statute does not in our view require us to treat the notice of decision as authoritative in every case. In the present case, although the reason is given in the notice of decision, that is a reason which appears to bear no relation to the application. Despite the wording of the notice of decision, the reason is not one upon which the decision could properly have been taken. The reason given must be a mistake. In the (we hope) unusual circumstances of this case, we have decided that we can safely ignore the assertion in the notice of decision that the ground for it was that the application was being made for a purpose not covered by the Immigration Rules. Instead, we can look at the realities of the case.
15. This is an unusual case, because the ground stated is one which does not appear to have been open to the decision maker as arising from the application that was made. Where the ground cited is one which could arise from the application, we think it very unlikely indeed that it will be right for the ground given in the notice of decision to be ignored. That is not the position here. In so far as the refusal was an appropriate – and hence lawful – response to the application, it is a refusal which must have been on grounds other than those alleged.
16. To put that another way, in our judgment s 88(4)(d) restricts the grounds of appeal if the reason cited is a lawful (albeit perhaps wrong) response to the application. If the reason cited has nothing to do with the applications, s 88(2) (d) is of no effect. In the result we have concluded that the appellant’s right of appeal is not restricted by s 88(2), and accordingly that we have jurisdiction to deal with all grounds. If we are wrong about that (and we may be) it should make no difference to the appellant or the respondent, for the reason we set out at para 25 below. We now turn to the merits of the appellant’s appeal.”
21. The question is thus, was it open to the respondent to take the decision on the basis set out in the refusal notice? Mr Howells submits that it was not, as entry of widows of former servicemen is a purpose covered by the rules.
22. In some cases, purposes covered by the immigration rules are clear; they are in the more modern parts of the rules such as Appendix FM and the PBS, expressly stated.
23. Mr Howells’ submission that this application was covered by the rules requires it to be shown that entry as the bereaved partner of a deceased member of HM Forces is a purpose covered by the rules.
24. It is apparent that much of what is said in the guidance set out in Limbu has been overtaken by the significant changes to the Immigration Rules since 2008 and the extent to which much of what was in the past policy or guidance now forms part of the Rules.
25. There is no doubt that seeking entry as the spouse/partner of a member of HM Forces is a purpose covered by the rules; the situation where that person has died is different, but it is set out in this case in Appendix FM at paragraphs 34 to 38. There are various restrictions as to eligibility which mirror those applicable to partners in general: they must be over 18, the relationship must be genuine, and so on. Also, if the death was more than 2 years ago, then the member of the forces must have been a British Citizen or have been previously granted leave under Appendix AF.
26. The Immigration Rules at 276E to 276KA draw a distinction between Gurkhas and members of HM Forces, but the family reunion provisions at 276R onwards are the same. Nonetheless, in Appendix AF at 2 (c) Gurkhas are expressly said to be members of HM Forces, forming a subset of those individuals.
27. Taking a broad approach, it can be argued that the Immigration Rules do provide a route for entry for the bereaved partners of former members of HM Forces. It is also possible to construe that route more narrowly to a route for entry for those whose partners died within the two years prior to the application, or to those who meet the general requirement at paragraph 34 (a) for the applicant to have previously held leave. It is thus possible to define the purpose as providing for indefinite leave to be granted to bereaved partners who had previously held leave. That is in line with the overall structure of the rules where, in most cases, prior leave to remain is required before indefinite leave is granted. It is also in line with a policy of allowing a bereaved partner to have continuity and where there is a nexus with the United Kingdom arising from previously had leave to remain here.
28. In order to succeed, Mr Howells has to show that that the purpose of the roles is the broad purpose set out above. I am not, however, satisfied that this is a correct statement; the admission of the bereaved partners of members of HM Forces is, I consider, of necessity limited to those who have formerly had leave, and where the partner had leave ( or was exempted from that provision) or was a British Citizen.
29. On that basis, I conclude that the appellant was in this case seeking entry for a purpose not covered by the rules, and that in consequence the available grounds of appeal were restricted, on the facts of this case, to human rights. I am satisfied that, on that basis, the grounds of challenge to the decision of the First-tier Tribunal cannot be made out, and that accordingly, that decision did not involve the making of an error of law. I do not consider that the judge erred in his approach to article 8; the appellant has not established any family life here, nor could it be argued that, in the circumstances of this case, a refusal to grant her entry clearance was an interference with her private life; that is not how the case is argued.
30. For these reasons, I uphold the decision of the First-tier Tribunal as it did not involve the making of an error of law. I do, however, strongly urge the respondent, in the light of the findings of the judge, to reconsider the decision as it would appear that the appellant is in fact entitled to benefit from the policy applicable to the widows of Gurkhas.

SUMMARY OF CONCLUSIONS

The decision of the First-tier Tribunal did not involve the making of an error of law and I uphold it.

Signed Date: 13 March 2017

Upper Tribunal Judge Rintoul