UG (Nepal) & Ors v Entry Clearance Officer

UG (Nepal) & Ors v Entry Clearance Officer

The Entry Clearance Guidance (paragraph 29.14/SET 12.16) confers a broad discretion on the Entry Clearance Officer to grant entry clearance to adult dependants of former Gurkhas and other HM Forces personnel. Satisfaction of one or more of the listed factors does not create a presumption or entitlement to entry...

Source-derived case information.

Parties
Appellant: UG (Nepal); Appellant: NT (Nepal); Appellant: RM (Nepal); Appellant: YP (Nepal); Respondent: Entry Clearance Officer
Jurisdiction
England and Wales
Judgment Date
02 February 2012
Procedural Posture
Immigration Appeal / Appeal From Upper Tribunal to Court of Appeal
Outcome
Appeals of NT, RM, and YP dismissed; appeal of UG allowed to the extent of remittal for reconsideration.
Legal Topics
Entry Clearance, Discretionary Policy, Dependants of Former HM Forces, Judicial Review, Application of Policy Guidance
Immigration Law Administrative Law Entry Clearance Discretionary Policy Dependants of Former HM Forces Judicial Review Application of Policy Guidance

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Summary, issues, holding and outcome

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Parties

UG (Nepal)

Appellant

NT (Nepal)

Appellant

RM (Nepal)

Appellant

YP (Nepal)

Appellant

Entry Clearance Officer

Respondent

Procedural Posture

Immigration Appeal / Appeal From Upper Tribunal to Court of Appeal

Legal Issues

  1. 1 Does satisfaction of one or more policy factors create a presumption in favour of entry clearance for adult dependants of former Gurkhas?
  2. 2 Is the Entry Clearance Guidance (paragraph 29.14/SET 12.16) discretionary or absolute?
  3. 3 What is the proper approach to remittal and exercise of discretion by the Entry Clearance Officer?

Ratio Decidendi

The Entry Clearance Guidance (paragraph 29.14/SET 12.16) confers a broad discretion on the Entry Clearance Officer to grant entry clearance to adult dependants of former Gurkhas and other HM Forces personnel. Satisfaction of one or more of the listed factors does not create a presumption or entitlement to entry clearance; the ECO must make a rounded evaluation of all relevant circumstances. The policy is not absolute, and the proper course where the wrong policy was applied is to remit the application for reconsideration by the ECO under the correct policy.

Court Disposition

Appeals of NT, RM, and YP dismissed; appeal of UG allowed to the extent of remittal for reconsideration.

Orders

  • Applications of all appellants remitted to the Entry Clearance Officer for reconsideration under the correct policy.
  • ECO to apply the policy in force at the date of application but to consider facts as at the date of decision.