KG (Gurkhas; overage dependants; policy) Nepal [2011] UKUT 117: KG was the 35 year old daughter of a former Gurkha soldier who lived in the UK with his four other children.  KG applied for entry clearance to join her family in the UK, on the basis that she was a dependent of a former member of HM armed forces.  Her application and subsequent appeal was rejected by entry clearance officers on the basis that ‘exceptional circumstances' were required to admit an overage dependent. 

In Limbu & ors [2008] EWHC 2261 (Admin), it was held that the Entry Clearance Guidance for Gurkhas was unlawful.  The guidance was for decisions about whether to admit Gurkhas who wanted to settle in the UK after their discharge from HM armed forces.  There was a limited discretion for Entry Clearance Officers to grant admission to Gurkhas, but the instructions they were following were found to be unlawful.  As such the Home Office revised the policy.  Under the new policy for the Gurkhas there were instructions about allowing entry to dependents of Gurkhas who were over 18 years of age.

Both under the old and new policies, when decisions were taken about KG's application, the officials involved fail to take account of their discretion to allow KG entry to the UK. 

On the facts before him at a previous appeal, the immigration judge had gone further than making what would be the usual ruling in such cases and directing the Entry Clearance Officers to re-make their decision in a lawful manner.  The judge determined that there could be only one rational outcome for the overage dependent in this case.  KG was living alone in Nepal, she was reliant on her father for financial support, and she was finding it difficult because of disability to take care of herself.  The judge therefore directed that KG be granted entry to the UK, citing AG & ors Kosovo [2007] UKAIT 82 and IA Mauritius [2006] UKAIT 82 as authority for his unusual decision. 

In the end, these public law principles about fair decisions were not needed.  The case was decided on human rights grounds (Article 8 ECHR; right to family life).

Applying Lord Bingham in Razgar [2004] UKHL 27, it was held that there was a family life between KG and her parent which went beyond normal emotional ties.  KG's disability meant she relied on her parents to care for her.  As such, the denial of entry clearance interfered with the family life of KG and her parent, to the extent that her Article 8 rights were engaged. 

Additionally, there was some perceptible sense of a ‘historical wrong' to be accounted for, in that the Gurkhas had not been allowed to settle in the UK at a time when KG was a minor and would have been classed as a dependent automatically (JB (India) [2009] EWCA Civ 234).
For these reasons, the public interest in firm, fair immigration control was less strong than usual.  KG was granted entry clearance in recognition of her right to family life.
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