R (on the application of Limbu and others) v Secretary of State for the Home Department and others [2008] EWHC 2261 (Admin) [2008] All ER (D) 122 (Sep)
Queen’s Bench Division, Administrative Court, Blake J, 30 Sep 2008
The discretionary scheme under Ch 29.4 of the Diplomatic Service Procedures: Entry Clearance Volume 1 General Instructions (the policy) is irrational and in consequence unlawful.
Edward Fitzgerald QC, Mark Henderson and Mark O’Connor (instructed by Howe & Co) for the claimants.Steven Kovats (instructed by the Treasury Solicitor) for the defendants.Sharaz Ahmed (instructed by NC Brothers, Reading) for the interested party.
The claimants were veterans of the Brigade of Gurkhas and in one instance a widow of such a veteran. The veterans had all been discharged before 1 July 1997. Several years later, they each applied for entry clearance to come to the UK for settlement purposes. Reliance was placed on the length and quality of past military service with the Crown. Entry clearance was refused by various officers, and thereafter appeals against those decisions were lodged with the Asylum and Immigration Tribunal.
An application for judicial review was filed; the instant case having been selected to act as a “test case” to be resolved before the determination of the outstanding appeals. The claimants argued that the discretionary scheme under Ch 29.4 of the policy was irrational on the grounds that it excluded significant considerations, for example, the length and quality of past military service with the Crown.
Mr Justice Blake:
The secretary of state submitted that immigration policies were not usually retrospective let alone reaching back to a trigger event many years before the policy came into being. The responsible minister could not be faulted for generosity in providing that some pre-1997 claimants were eligible for discretionary admission.
The criteria used for discretionary admission were the same as those used for non-Gurkha Commonwealth soldiers and so there was no differential treatment between the two groups. In immigration terms it was rational to base a policy on physical or family links with the UK itself as opposed to the wider reaches of its dependent territories or overseas interests. The policy was a genuine discretionary one not trammelled by a mandatory requirement to fulfil one or more of the specified examples. The essence of the policy was whether “there are strong reasons why settlement in the UK is appropriate”. It would be legitimate to note the MOD’s concerns about overgenerosity in retrospective application of the policy possibly endangering the future of the Brigade or the Gurkha TACOS and particularly their pensions.
Undermining submissions
His lordship held that the context for the policy, the ministerial announcement preceding it, and the recognition that for some highly debatable reasons Gurkhas had not been allowed to settle here while other non-citizen soldiers had, served to undermine the secretary of state’s submissions that retrospectivity was recognised as being appropriate in the instant policy, because Gurkha veterans had never before been offered any chance to settle and some measures were needed to correct that historic injustice whether they were in the same situation as Commonwealth veterans or not.
The fact that the same terms applied to Commonwealth and Gurkha veterans undermined rather than supported the policy. There were sufficient differences in the two groups before 1997 to preclude a legal requirement for identical treatment, but it was as unlawful and irrational to treat two differently situated groups the same as it was to treat two similarly situated groups differently. In particular, where Gurkhas were not allowed stay for long tours pre-1997 or develop family links in the UK while Commonwealth soldiers could, it was irrational to make that a requirement for both groups.
The instant case was not an ordinary case of immigration policy based on physical presence in the UK. Long military service was performed for the Crown at the instigation of Her Majesty’s government of the UK, rather than of a dependant territory alone. It was a connection with the UK wherever it was performed. If service overseas on behalf of the government of the UK could count for periods of qualifying residence for citizenship, it was difficult to see why such service in principle could not even be a reason to grant settlement in the UK.
If the policy was intended to broad and to truly embrace the home secretary’s reasons on announcement then further guidance by way of examples apart from physical presence in the UK, was needed to be spelt out.
The MOD’s concerns as to the impact on military effectiveness were doubtless legitimate but the secretary of state was to do what he or she thought fit in discharge of the moral debt without compromising bright lines adopted in the field of pensions, and pension contributions. If Gurkha veterans were to be allowed to come in as a matter of discretion because of evidence of compelling links through very long or very gallant service, that did not mean that their pensions based on historic terms of service had to be uplifted. Perhaps they would choose to remain where they were and their money might go further.
Finally, the Government of Nepal never expressed opposition to retrospective settlement of Gurkhas in 2004 or before. The evidence indicated that they wanted Gurkha grievances addressed and as equal treatment as possible.
Further submissions would be heard as to the appropriate declaration and other terms of relief.
