Queen’s Bench Division
Published October 7, 2008
Regina (Limbu and Others) v Secretary of State for the Home Department and Others
Before Mr Justice Blake
Judgment September 30, 2008

It was irrational for the Secretary of State for the Home Department to rely on a discretionary policy relating to settlement entry for Gurkha veterans where that discretion could only be exercised in favour of indefinite leave to remain on the basis of restrictive express factors.

Mr Justice Blake so held in the Queen’s Bench Division when granting the claims for judicial review by Deo Prakash Limbu, Chakra Prasad Limbu, Birendra Man Shrestha, Gyaenda Rai, Bhim Prasad Gurung and Gita Kumari Mukhiya of the “Diplomatic Service Procedures: Entry Clearance Volume 1 General Instructions”, as published with the Immigration Rules for Gurkha Veterans, promulgated in October 2004.

The defendants were the Home Secretary, Entry Clearance Officer, Kathmandu and Entry Officer, Hongkong.

The first five claimants were veterans of the Brigade of Gurkhas and the sixth was a widow of such a veteran. Each applied for entry clearance to come to the United Kingdom for settlement here on the basis of past military service with the Crown. In each case that service came to an end before July 1, 1997.

Each was refused entry clearance because he did not meet one or more of the terms of the discretionary policy as set out in chapter 29.4 of the general instructions.

They each appealed to the Asylum and Immigration Tribunal on the basis that the decision was not in accordance with the law and in particular was contrary to the Human Rights Act 1998.

The applications were representative of a number of similar such applications where appeals against refusals of entry clearance had been lodged with the tribunal. These cases were in due course selected as lead cases for the appeal by way of test case.

Mr Edward Fitzgerald, QC, Mr Mark Henderson and Mr Mark O’Connor for the claimants; Mr Steven Kovats for the defendants; Mr Sharaz Ahmed for two further Gurkha veterans and five dependent relatives of Gurkha veterans, as interested parties.

MR JUSTICE BLAKE said that transparency and clarity were significant requirements of instructions to immigration and entry clearance officers that were published to the world at large, generated expectations of fair treatment and bound 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 indicated 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 settle here.

There was a delicate balance between rigidity and flexibility to be applied in the formation of such sensitive policies, but this policy failed to coherently describe itself.

If factors such as 10 years of service were to be recognised as weighty along with injury in service, decorations for bravery, service in the Falklands conflict or similar matters, that should have been identified by further specific examples so the parameters of the qualifying class could be identified.

At present, the examples restricted the identification of the class to physical presence by claimant or family, while the purpose of the policy did not. If a decision had been taken that that kind of reasons could not and should not be allowed to weigh significantly in the balance, then some rational Home Office explanation was needed of why that was the case.

The court was not determining what the elements of a rational future policy had to be, it was merely declaring that given the context, objects and purposes of the discretionary Gurkhas policy, the instructions given to entry clearance officers were unlawful and needed urgent revisiting.

The individual decisions in this case were set aside to be redetermined when the Home Office had responded to the judgment.

Solicitors: Howe & Co, Ealing; Treasury Solicitor; N. C. Brothers & Co, Reading.

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