This section deals with applications
from Gurkhas and foreign and Commonwealth nationals who seek settlement in the
UK on discharge from HM Forces. It also explains the circumstances under
which their dependants may apply for settlement.
For the purposes of the
Immigration Rules (Paragraphs
276E-K) a Gurkha is a citizen or national of Nepal who has served
in the Brigade of Gurkhas of the British Army under Brigade of Gurkhas’ terms
and conditions of service.
On 30 September 2004 the Prime
Minister and Home Secretary announced a change of policy in respect of
Gurkhas. Gurkhas discharged from
the British Army in Nepal, on or after 1 July 1997 and with at least 4 years service
with the British Army would be able to apply for settlement in the UK.
The 1 July 1997 cut-off date reflected
when the Brigade of Gurkhas moved its headquarters from Hong Kong to the UK,
and Gurkhas discharged on or after that date would therefore have had more
opportunity to develop close physical ties with the UK.
NB See Annex A for discretionary arrangements for former Gurkhas discharged before 1 July 1997.
(i) the applicant has completed at
least four years service as a Gurkha with the British Army; and
(ii) was discharged from the
British Army in Nepal on completion of engagement on or after 1 July 1997. The
requirement to have been discharged in Nepal is to be waived until the relevant
paragraph in the Rules is amended; and
(iii) was not discharged from the
British Army more than 2 years prior to the date on which the application is
made; and
(iv) holds a valid United Kingdom
entry clearance for entry in this capacity.
If requirements (i), (ii) and
(iii) above are met entry clearance for settlement may be issued, and if that
entry clearance is presented to the Immigration Officer on arrival the
applicant will be admitted to the UK for settlement.
2.2 Definition
of “on completion of engagement”.
In (ii) above “on completion of
engagement” means that a person was discharged from the armed forces in the
normal course of events, after completing the agreed period of service and has
been issued with a Certificate of Service.
The requirements for indefinite
leave to remain (settlement) (paragraphs
276I-J) as a Gurkha discharged from the British Army are that:
(i) the applicant has completed at
least four years service as a Gurkha with the British Army; and
(ii) was discharged from the
British Army on completion of engagement on or after 1 July 1997. The
requirement to have been discharged in Nepal is to be waived until the relevant
paragraph in the Rules is amended; and
(iii)
was not discharged from the British Army more than 2 years prior to the date on
which the application is made; and
(iv) on the date of application
has leave to enter or remain in the United Kingdom.
If all of the above requirements
are met settlement may be granted.
2.4 Applications
lodged in advance
To
assist HM Armed Forces personnel in making the transition to civilian life,
settlement applications may be lodged up to 10 weeks before the discharge
date, although settlement cannot be granted until after exemption from
control has ceased upon their discharge.
These
applications should be examined as soon as they are received and any additional
enquiries made in good time to ensure that the decision to grant or refuse can
be implemented the day or day after discharge.
Where a
decision in principle is made to grant settlement, an indicative letter based on the proforma at Annex
B should be sent to the applicant
to assist them in making appropriate
arrangements for employment after discharge and for liaising with the relevant
authorities for housing, healthcare and benefits.
Note: section 10 and Annex D provide guidance for dealing with settlement
applications from medically discharged Commonwealth & foreign nationals
(including ex-Gurkhas medically discharged on or after 1 July 1997)
2.6 Verifying details of service
If the applicant’s original Certificate of Service (also
called Army Form Book 108, Red Book or ‘Lal’ Book) has not been submitted - or it
has been submitted but verification of an applicant’s claim to the qualifying
period of service or other information is required (for example, in relation to
an award of a MoD disability pension or to find out more about why somebody’s
service was terminated prematurely) - checks may be made with reference to
information provided directly by the MoD.
Checks
may be carried out with the MoD in the UK or by reference to Records Office at
the Brigade of Gurkhas main Recruiting Depot in Pokhara, Nepal. The
authorisation form at Annex E & F may
be adapted for this but in most cases it should not be necessary to use this
means to obtain this information. Where this is considered necessary, a faxed
copy of the service record showing the length of service and date of discharge
(including any other relevant information required) should be obtained and attached
to the applicant’s file.
Providing that an application
meets the requirements of the rules or the requirements of the discretionary
policy for Gurkhas discharged before 1 July 1997, settlement should be granted
and documents processed in the normal way.
If an applicant cannot satisfy the
requirements of paragraph
276F of the Immigration Rules
when applying for leave to enter, or paragraph 276I of the Rules when applying
for leave to remain as a Gurkha discharged from the British Army, and the
exercise of discretion is not considered appropriate, settlement should be
refused.
Suggested refusal wording:
“You have applied for
settlement in the United Kingdom as a Gurkha discharged from the British Army
but your application has been refused.
In view of the fact that you
have not completed at least four years service as a Gurkha with the British
Army; [I am/the Secretary of State is]
not satisfied that you meet the requirements of paragraph [276F/276I] of the Immigration Rules."
In
view of the fact that you were discharged from the British Army more than 2
years prior to the date on which the application is made; [I am/the
Secretary of State is] not satisfied that
you meet the requirements of paragraph [276F/276I] of the Immigration Rules.”
Paragraph
reference 276F(iii) or 276I(iii)
In view of the fact that on the
date of application you did not have leave to enter or remain in the United
Kingdom, [I am/the Secretary of State is]
not satisfied that you meet the requirements of paragraph 276I of the Immigration Rules.”
Paragraph reference 276I(iv)
4.3 Case Information Database
codes
The following stats categories
should be used:
Grant: 7DA
Refusal: X8
For information on rights of
appeal please refer to IDI
Chapter 12.
Paragraphs 276L-Q of the
Immigration Rules replace what was previously known as the “Armed Forces
Concession” under which those without right of abode could apply for settlement
on discharge in the UK from the Armed Forces, on the basis of 4 years approved
employment.
The requirements for indefinite
leave to enter (paragraphs 276L-M) as a foreign or Commonwealth citizen
discharged from HM Forces are:
(i) the applicant has completed at
least four years service with HM Forces; and
(ii) was discharged from HM Forces
on completion of engagement; and
(iii)
was not discharged from HM Forces more than 2 years prior to the date on which
the application is made; and
(iv) holds a valid United Kingdom
entry clearance for entry in this capacity.
If requirements (i) (ii) and (iii)
are met entry clearance for settlement may be issued, and if the entry
clearance is presented to the Immigration Officer on arrival the applicant will
be admitted to the UK for settlement.
In (ii) above “on completion of
engagement” means that a person was discharged from the Armed Forces in the
normal course of events, after completing the agreed period of service and has
been issued with a Certificate of Service.
The requirements for indefinite
leave to remain (paragraphs 276O-P) as a foreign or Commonwealth citizen
discharged from HM Forces are:
(i) the applicant has completed at
least four years service with HM Forces; and
(ii) was discharged from HM Forces
on completion of engagement; and
(iii)
was not discharged from HM Forces more than 2 years prior to the date on which
the application is made; and
(iv) on the date of application
has leave to enter or remain in the United Kingdom.
If all the above requirements are
met settlement may be granted.
6.4 Applications
lodged in advance
To
assist HM Forces personnel in making the transition to civilian life,
settlement applications may be lodged up to 10 weeks before the discharge
date, although settlement cannot be granted until after exemption from control
has ceased upon their discharge. These applications
should be examined promptly as soon as they are received and any additional
enquiries made in good time to ensure that the decision to grant/refuse can be
implemented the day or day after discharge, as appropriate.
Where a
decision in principle is made to grant settlement, an indicative letter based on the proforma at Annex B should be sent to the applicant to assist
them in making appropriate arrangements for employment after discharge and for
liaising with the relevant authorities for housing, healthcare and benefits.
8.1 Grant
of Applications
Providing that an application
meets the requirements of the rules, settlement should be granted and documents
processed in the normal way.
8.2 Refusal
of Applications
Where an applicant does not satisfy the requirements of:
§
paragraph
276L of the Rules if applying for leave to enter;, or
§
paragraph 276O of the Rules if applying for leave to
remain, as a foreign or Commonwealth citizen discharged from HM Forces; or
§
other relevant Immigration Rules - e.g. paragraph 281
(spouses and civil partners), paragraph 297 (children), paragraph 317 (parent,
grandparent, other dependent relative);
and the exercise of discretion is
not appropriate, settlement should be refused. The refusal text should refer to
any consideration given to the application both under and outside the Immigration Rules.
Suggested refusal wording:
“You have applied for
settlement in the United Kingdom as a foreign or Commonwealth citizen
discharged from HM Forces but your application has been refused.
In view of the fact that you
have not completed at least four years service with HM Forces, [I am/the
Secretary of State is] not satisfied that
you meet the requirements of paragraph [276L/276O] of the Immigration Rules.”
In view of the fact that you
were not discharged from HM Forces on completion of engagement, [I am/the
Secretary of State is] not satisfied that
you meet the requirements of paragraph [276L/276O] of the Immigration Rules.”
In
view of the fact that you were discharged from HM Forces more than 2 years
prior to the date on which the application is made, [I am/the Secretary of
State is] not satisfied that you meet the
requirements of paragraph [276L/276O]
of the Immigration Rules.”
Paragraph
reference 276L(iii) or 276O(iii)
In view of the fact that on the
date of application you did not have leave to enter or remain in the United
Kingdom, [I am/the Secretary of State is]
not satisfied that you meet the requirements of paragraph 276O of the Immigration Rules.”
The following stats categories
should be used:
Grant: 7DA
Refusal: X8
For information on rights of
appeal please refer to
IDI Chapter 12.
This section provides guidance on
the consideration to be given to settlement applications from medically
discharged foreign and Commonwealth
nationals, including ex-Gurkhas medically discharged on or after 1 July 1997.
It explains the circumstances in which the normal requirement in the Immigration Rules to have completed
four years’ service may be waived.
10.1 Medical grading codes
The following medical grading
codes are used by the MoD when considering discharging personnel on medical
grounds:
P3 - fit for light/restrictive
duties;
P4 - pregnancy maternity;
P7 - fit for limited/restricted
duties in UK only;
P8 - medically unfit for any
form of military service;
P0 – unfit for duty but
under medical care [Not used by RN].
Individuals in the Army and RAF may
be medically discharged under one the following Queen’s Regulations:
Army
QR 9.381 – ‘Defect in
enlistment procedure’ – where a pre-existing medical condition and/or
pre-disposition to developing a certain condition only becomes apparent after
enlistment.
QR 9.385 - for re-allocation or
discharge. Possible re-enlistment after 6 months. Trainees must maintain entry
standards.
QR 9.386 - unfit for any form of
service. Discharge - possible re-enlistment after 6 months.
QR 9.387 - permanently unfit for
service – possible re-enlistment only after 5 years.
RAF
QR 2905(4) Officers & QR
607(15)(a)(b) Ground Trades and NCA: Invaliding: Permanently below the medical standard required to conduct
the full duties of their specialisation or unlikely to reach that standard with
a reasonable time.
QR 2905(3) Officers and QR
607(22)(d)(ii): Medical – Non Invaliding: Permanently below the medical standard required to conduct
the full duties of their specialisation for reasons within their control or
where the condition/disability is unlikely to be lasting.
QR 2906(3) Officers and QR
607(15)(b): Election to Leave: Permanently below the medical standard required
to conduct the full duties of their specialisation, unlikely to reach that
standard within a reasonable time, declined an offer of suitable alternative employment
in the RAF or feel their career prospects are unacceptability affected through
circumstances beyond their control.
QR 2905(4) Officers and QR
607(15)(b) NCA: Aircrew Right to Elect Invaliding: Aircrew who cease to be appointable to flying duties because
of a permanently reduced MES below A2, may as a once only option to elect to be
invalided as an alternative to retention.
Royal Navy/Royal Marines
In the Naval Service, personnel
are discharged in accordance with the regulations contained in the Board of
Reference (BR) 1991 – Instructions for the Royal Naval Medical Service
– Chapter 18 – Medical Boards. The circumstances of RN/RM medical
discharge cases should be evident from the applicant’s F Med 133 and F Med 23
medical reports.
10.2 MoD disciplinary procedures
Mod
disciplinary procedures take precedence over military discharge procedures, so
if an applicant has been medically discharged the UK Border Agency may
generally accept that no personal or disciplinary factors are involved. Any cases where, for example, there is
evidence of criminal activity, will need to be investigated thoroughly and
decided on a case-by-case basis.
HM Armed
Forces personnel are normally given 110 – 130 days notice of their
medical discharge date. To assist the MoD and the medical dischargee in making
the transition from service to civilian life as seamless as possible, applications
for settlement from medical dischargees may be lodged up to 3 months before the
discharge date. Although settlement cannot be granted until after discharge
has taken place (due to exemption from control), these applications should be
examined promptly as soon as they are received and any additional enquiries
made in good time to ensure that the decision to grant/refuse can be
implemented on the day or day after discharge.
Where a
decision in principle is made to grant settlement, an indicative letter based on the proforma at Annex
B should be sent to the applicant
to confirm to OGDs, local authorities and prospective employers that once
settlement is granted, there will be no restriction to them accessing those
public funds for which they may be eligible or from seeking employment.
If they
have not already done so, applicants should be asked to submit their F Med
133 their F Med 19 (Army & RAF) – Medical Board
Proceedings or F Med 23 (RN) – Medical Board Proceedings report as official MoD evidence
of the circumstances and nature of their injury or illness. These should
provide confirmation that discharge was as a direct result of injury sustained
in an operational theatre or an illness that has been deemed attributable to
their service in HM Armed Forces.
If the
evidence supplied by the individual is inconclusive, the UK Border Agency
should contact the individual’s Unit if they are still serving or the Service
Personnel and Veterans Agency (SPVA) if they have been discharged for further information using the
details contained in Annex C.
The contact details for the SPVA
are:
Ann Morton,
SPVA,
Room 6205, Norcross,
Blackpool, FY5 3WP
Tel: 01253 332862
The guidance below should be read
in conjunction with the indicative table at Annex D.
All decisions should be reviewed and approved by a senior
caseworker.
10.5 Medical discharge due to
injury sustained on operations
Where a
foreign or Commonwealth member of HM Armed Forces is medically discharged as a direct
result of injury sustained during operations, the requirement for them to have
completed four years’ service in order to qualify for settlement should
normally be waived.
Any
cases of discharged servicemen or women in these circumstances that have
previously been refused settlement will be reviewed in line with the above
guidance where these are brought to the UK Border Agency’s attention. The
requirement to have been discharged no more than 2 years prior to the date of
application would also be waived in re-consideration cases.
a. Cases where the exercise of
discretion may be appropriate
would include where discharge of a HM Armed Forces member who has completed
initial training results directly from an injury sustained on duty but outside
an operational theatre (e.g. during pre-deployment training ) or from a medical condition attributable to
their training or service. In such cases, it may be appropriate to exercise
discretion to waive the 4 years’ service requirement under the settlement
rules, especially where the injury is of a serious nature, the long-term
prognosis is poor or where there will be an ongoing need for medical treatment
not available in the individual’s country of origin.
b. Where the injury or medical
condition leading to discharge is attributable to service but of a relatively
minor nature or the period of service completed is relatively short, waiving
the 4 years’ service requirement may not be appropriate.
All ‘non-operational, but attributable’ cases should be considered
sympathetically on their individual merits with reference to the indicative
table at Annex D.
Where cases lie somewhere in between the situations described in (a). and (b).
above, caseworkers should use their judgment, giving weight to the following
factors:
- the seriousness of the injury or condition;
- the need for any further medical treatment in the UK and the
availability of medical
treatment in the individual’s county of
origin;
- the prognosis for recovery including whether the injury or illness
will affect their ability to
support themselves
in their country of origin;
- the length of time already served at the point of discharge.
Where a substantial part of the required minimum four years’
service has been served prior to discharge, it would normally be appropriate
for discretion to be exercised to grant settlement in cases, even where the
injury or medical condition involved is less serious.
10.7 Discharge
due to injury or medical condition sustained during initial training or due to
a medical condition not attributable to HM Armed Forces service
Where discharge results from injury sustained during initial training or is due to a medical condition not
attributable to service in HM Armed Forces, it would not normally be
appropriate to waive the requirement to have completed four years’ service
prior to discharge for the purposes of considering an application for
settlement.
However, where a substantial part of the minimum four years’
service required has been served prior to discharge, discretion may be
exercised to grant settlement. Please refer to indicative table at Annex D.
This would
also apply to an application from an individual medically discharged as a
result of a pre-existing medical condition and/or if their pre-disposition to
developing a certain condition only becomes apparent after enlistment.
10.8 Leave outside the immigration
rules
Where the decision is made to refuse settlement but further
medical treatment or a recovery period
will be required before the applicant is able to return to their country
of origin, a grant of Leave Outside the Rules (on code 1A - with permission to
work and claim benefits) may be appropriate. The grant should be only as long
as judged necessary and should not convey any expectation of further leave or
eventual settlement. See
IDI Ch.1, section 14 for more information on LOTR.
Where
settlement or leave outside the rules is granted, those previously treated as a
dependent spouse, civil partner, unmarried partner, same-sex partner or child
will normally qualify for leave in line.
11. DEPENDANTS OF FOREIGN
& COMMONWEALTH NATIONALS (INCLUDING
GURKHAS)
Applications for settlement from dependants of former foreign and Commonwealth HM Forces personnel (including discharged Gurkhas) are to be considered in line with an application for settlement submitted by the former HM Forces member.
On 1 January 2005 two new Rules took effect, which enable
the spouse, civil partner or child dependants of those settled or seeking
settlement under the HM Forces rule to apply for settlement in line. Further
amendments to the Rules – effective from 31 March 2009 – extended
this right to unmarried and same-sex partners.
New provisions were also introduced, from 31 March 2009, enabling spouses, civil partners, unmarried
partners, same-sex partners and children of a member of HM Forces to apply for
settlement if their spouse, civil partner, unmarried partner, same-sex partner
or parent has completed at least 5 years’ continuous service. These provisions
are set out in:
·
Paragraphs 276R to 276W - spouses, civil partners,
unmarried and same-sex partners of persons
settled or seeking settlement in the United Kingdom in accordance with
paragraphs 276E to 276Q (HM forces rules) or of members of HM forces who are
exempt from immigration control under section 8(4)(a) of the Immigration Act
1971 and have at least 5 years’ continuous service– please see paragraph 12
below.
·
Paragraphs 276X to 276AC - children of a parent, parents or a relative settled or
seeking settlement in the United Kingdom under paragraphs 276E to 276Q (HM forces
rules) or of members of HM forces who are exempt from immigration control under
section 8(4)(a) of the Immigration Act 1971 and have at least 5 years’
continuous service – please see paragraph 13 below.
12. SPOUSES, CIVIL
PARTNERS, UNMARRIED AND SAME-SEX PARTNERS
To qualify for indefinite leave to enter or
indefinite leave to remain in the UK as the spouse, civil partner, unmarried or
same-sex partner of a person settled or seeking settlement under the HM Forces
rule or of a serving member of HM Forces who is exempt from immigration control
under section
8(4)(a) of the Immigration Act 1971 and has at least 5 years’
continuous service, the following requirements must be met:
· the
applicant must be married to, or the civil partner, unmarried or same-sex
partner of a person present and settled in the UK or who is being admitted for
settlement or being granted settlement on the same occasion under the HM Forces
rule;
· the
parties to the marriage, civil partnership or relationship akin to marriage or
civil partnership must have met;
· the
marriage, civil partnership or relationship akin to marriage or civil
partnership must have been formed at least 2 years ago;
· each
of the parties must intend to live permanently with the other as their spouse,
civil partner, unmarried or same-sex partner and the marriage, civil
partnership or relationship akin to marriage or civil partnership must be
subsisting;
· if
seeking indefinite leave to enter, a valid entry clearance for entry in this
capacity must be held;
· if
seeking indefinite leave to remain, the applicant has leave to enter or remain
in the UK.
Caseworkers
should note the lack of any maintenance and accommodation requirements.
The requirement that the parties have been married, in
a civil partnership or
relationship akin to marriage or civil partnership for at least 2 years is consistent with the requirements of the general immigration
rules for spouse/civil partners and PBS dependants applications. Chapter 8, Section 9 Annex Z provides further
guidance for assessing unmarried and same-sex relationships, including what
might be required as evidential proof. If the marriage, civil partnership or
relationship akin to marriage or civil partnership has subsisted for less than
2 years the spouse, civil partner, unmarried or same-sex partner should be:
·
(where the spouse has been granted settlement) granted
a period of leave to enter or remain up to a maximum of 2 years on Code 1 in accordance with the requirements for
spouses, civil partners, unmarried or same-sex partners of persons present and
settled in the United Kingdom or being admitted on the same occasion for
settlement (paragraphs
281-289 of the Immigration Rules); or
·
(where the spouse is still serving) granted leave up to
a maximum of 2 years on Code 1 in accordance with the requirements for a dependant
of an exempt armed forces member (paragraphs
276AD-276AF)
The applicant should be advised that they may
apply not earlier than one month before the end of the probationary period, for indefinite leave to
remain in the United Kingdom on the basis of the still subsisting marriage, civil
partnership or relationship akin to marriage or civil partnership.
For
definitions of “present and settled” in
the UK, and “intention to live permanently with the other” please refer to Chapter 8 Section 1.
NOTE:
See paragraph 13.3 about the importance of dependants observing the stated
purpose of their settlement visa.
In cases where there is reason to
doubt that the marriage is genuine please refer to Chapter
8 Section 1 ANNEX A.
Only one wife may be permitted entry to the
United Kingdom under the provisions of the immigration rules for spouses. See
chapter 8, Section 1, Annex C Polygamous and potentially polygamous marriages.
For statistical codes please
see Chapter
8 Section 1 paragraphs 4.9 and 4.11.
For examples of refusal formulae and CID refusal codes please refer
to Chapter
8 Section 1 Annex G.
12.3 Widows,
widowers and bereaved civil
partners, unmarried and same-sex partners
Where an application for settlement in the UK is received
from the widow, widower, civil partner, unmarried or same-sex partner of a deceased
foreign or Commonwealth HM Forces member (including Gurkhas) and where their spouse
or partner’s death occurred in connection with operational service, discretion
will normally be exercised to grant settlement. This would include foreign and
Commonwealth HM Forces members (including Gurkhas) killed, for example, during
hazardous pre-combat exercises and manoeuvres or travelling to, from or around
the combat zone, in addition to those killed during combat itself. Any other
spouse or partner of a deceased serving or former member of HM forces would not
normally meet the criteria for settlement in the UK under this immigration
discretion and would therefore need to qualify under a different provision of
the Immigration Rules.
In exceptional circumstances discretion may be exercised in
individual cases where the spouse’s death was not in connection with
operational service but there are strong reasons why settlement in the UK is
appropriate. In assessing whether or not this is appropriate consideration
should be given to the presence of the following factors:
If one or
more of these factors listed above are present, discretion may be exercised
and settlement granted.
13. CHILDREN
(paragraphs 276X-276AC)
To qualify for indefinite leave
to enter or indefinite leave to remain as the child of a parent, parents or
a relative present and settled, or seeking settlement in the UK under the
HM Forces rule or of a serving member of HM Forces who is exempt
from immigration control under section
8(4)(a) of the Immigration Act 1971 and has at least 5
years’ continuous service, the following
requirements must be met:
The applicant is seeking
indefinite leave to join, or remain with,
a parent, parents or a relative in one of the following circumstances:
·
both parents are present
and settled in the UK, or being admitted for, or being granted settlement
on the same occasion; or
· one parent is present and settled in the UK or
is a member of HM Forces who is exempt from immigration control under
section 8(4)(a) of the Immigration Act 1971 and has at least 5 years’
continuous service, and the other is being admitted for, or being granted
settlement on the same occasion or is a member of HM Forces who is exempt
from immigration control under section 8(4)(a) of the Immigration Act 1971
and has at least 5 years’ continuous service; or
· one
parent is present and settled in the UK or being admitted for, or being
granted settlement on the same occasion or is a member of HM Forces who is
exempt from immigration control under section 8(4)(a) of the Immigration Act
1971 and has at least 5 years’ continuous service, and the other parent is
dead; or
· one
parent is present and settled in the UK or being admitted for, or being
granted settlement on the same occasion or is a member of HM Forces who is
exempt from immigration control under section
8(4)(a) of the Immigration Act 1971 and has at least 5
years’ continuous service, and has had sole responsibility for the child’s
upbringing; or
·
one parent or a relative is present and settled in
the UK or being admitted for, or being granted settlement on the same
occasion under the HM Forces rule or is a member of HM Forces who is exempt
from immigration control under section
8(4)(a) of the Immigration Act 1971 and has at least 5
years’ continuous service, and there are serious and compelling family or other considerations which make exclusion
of the child undesirable and suitable arrangements have been made for the
child’s care; and
§
the applicant is under
the age of 18; and
§
the applicant is not
leading an independent life, is unmarried, and has not formed an
independent family unit; and
§
if seeking indefinite
leave to enter holds a valid entry clearance for entry in this capacity; or
§
if seeking indefinite
leave to remain has leave to enter or remain in the UK.
Caseworkers should note the lack
of any maintenance or accommodation requirements.
For the definition of “parent”
please refer to Chapter
8 Section 5.
For the definition of “present
and settled” please refer to Chapter
8 Section 1.
For statistical codes please see
Chapter 8 Section 5 paragraphs 3.4 and 3.6.
For examples of refusal
formulae please refer to Chapter
8 Section 5 Annex U.
13.2 Dependants
over the age of 18
Dependants over the age of 18 of
foreign and Commonwealth HM Forces members (including Gurkhas) who are not
otherwise covered in this guidance would normally need to qualify for
settlement in the UK under a specific provision of the Immigration Rules.
However, settlement applications
from dependants over the age of 18 who are the children of serving foreign and Commonwealth HM Forces members (including
Gurkhas) who meet the requirements of a parent should normally be approved,
provided the dependant has previously been granted limited leave to enter
or remain in the UK as part of the family unit and they wish to continue to
reside and be educated in the UK.
In exceptional circumstances
discretion may be exercised in individual cases where the dependant is over
the age of 18. In assessing whether settlement in the UK is appropriate
consideration should be given to the following factors:
If one or more of the factors listed above are
present, discretion may be exercised and settlement granted in the UK.
13.3 The importance
for dependants of observing the stated purpose of their settlement
visa
Where
a settlement visa is issued to a dependant (including an overage
dependant child or other adult relative), it should be made clear to
them that the visa is only valid for travel to the UK:
·
as the dependant of a main applicant already settled in the UK or who is a member of HM
Forces who is exempt from immigration control under section
8(4)(a) of the Immigration Act 1971 and has at least 5
years’ continuous service, OR
·
when accompanying the main applicant who is at
the same time being admitted for settlement in the UK, OR
·
when joining a member of HM Forces who is
exempt from immigration control under section
8(4)(a) of the Immigration Act 1971 and has at least 5
years’ continuous service.
A person holding a dependant’s visa but who is not
joining or accompanying the main applicant (e.g. a former Gurkha) is
liable to be refused entry under paragraph 321 of the Immigration
Rules (false representations, deception, change of circumstances since
visa issued, etc).
13.4 Dependants of HM Forces members who
naturalise as a British citizen whilst still serving
The position of dependants of foreign and
Commonwealth HM Forces members alters if their sponsor naturalises as
a British citizen whilst still serving. Their dependants cease to be
eligible for limited leave under paragraphs 276AD-276AF
or 276AG-276AI (children) or for indefinite leave under
paragraphs 276R-276W
or paragraphs 276X-276AC (children).
Serving
foreign and Commonwealth members of HM Forces who wish their
dependants to benefit from the provisions for settlement on the basis
of their 5 years continuous service will therefore need to ensure that
they do not acquire British citizenship before their
dependants’ applications for settlement have been decided.
Where the serving sponsor has been naturalised as
a British citizen, their spouses,
civil partners, unmarried and same-sex partners would need to apply for probationary leave
to remain or enter (or indefinite leave, if they qualify ) under paragraphs
277-289 (as spouses or civil partners) or paragraphs
295AA-295O (as unmarried and same-sex partners).
The position of dependent children of serving HM
Forces members who have acquired British citizenship whilst serving, will depend on their age
and place of birth.
Children born in the United Kingdom to a serving
HM Forces member (parent) acquire
British citizenship automatically at birth under section
1(1) of the BNA 1981 by virtue of being born to a
parent who is settled in the United Kingdom for nationality purposes. A child born to a former HM
Forces member who has been discharged from duty and who has acquired
indefinite leave to remain in the United Kingdom will also acquire
British citizenship automatically at birth under section
1(1) of the BNA 1981 by virtue of the parent being
settled for nationality purposes.
Children born in the United Kingdom to a parent
who, after their birth, becomes a serving HM Forces member are eligible to register as a British
citizen whilst a minor under section
1(3) of the BNA 1981.
A person, including those over the age of 18
years, born in the UK whose parent does not become a member of the
armed forces or settled before that child reaches the age of 18 and who is not therefore eligible for
British citizenship under section 1 of the BNA 1981 may be registered
under section 1(4) of the BNA 1981 if s/he meets the requirements of
that section. (The
applicant must not have been absent from the UK for more than 90 days
in each of the first 10 years of their life).
Minors born outside of the United Kingdom who accompany a serving HM Forces member
(parent) to the UK may be registered as a British citizen at the
discretion of the Secretary of State under section
3(1) of the BNA 1981 if, and only if, their parent
subsequently naturalises as a British citizen under section 6 of the
BNA 1981.
However, there are no registration provisions for
adult children over 18 years born outside the UK who accompany a
serving HM Forces member (parent) to the UK. Such persons will
first need to apply for indefinite leave to remain or enter under the
immigration rules (e.g. paragraph 317, or for discretionary treatment
under paragraphs 276X-276AC
as described in paragraph 14.2 above) and
then qualify for naturalisation under the normal route (e.g. fulfil
the 3 or 5 years residence requirement as set out in section 6 of the
BNA 1981).
Orphans of foreign and
Commonwealth members of HM Forces (including Gurkhas) who are under
the age of 18 would normally need to qualify for settlement in the UK
under a specific provision in the Immigration Rules.
However, should a child
of a serving foreign
and Commonwealth HM Forces member (including Gurkhas) become orphaned
following the death of their parent in connection with operational
service (see paragraph 12.3.), and compelling or other family
considerations make it appropriate for the child to remain in the UK,
then discretion may be exercised and settlement granted.
In exceptional circumstances discretion may be
exercised in individual cases where the parent’s death was not in
connection with operational circumstances. There should be strong
reasons why settlement in the UK is appropriate and consideration
should be given to the presence of the following factors:
If one or more of
the factors are listed above discretion may be exercised and
settlement granted.
DISCRETIONARY ARRANGEMENTS FOR
FORMER GURKHAS DISCHARGED BEFORE 1 JULY 1997
In May 2009
the Home Secretary announced that any Gurkha with more than four
years service who had been discharged from the Brigade of Gurkhas
before 1 July 1997 would be eligible for settlement in the UK.
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.
This scheme recognises the unique
nature of the service given by the Brigade of Gurkhas and is
offered to them alone on an exceptional basis. It applies to
those who served in the Brigade of Gurkhas from January 1948 when
it became part of the British Army. Applications from former Gurkhas who were
discharged before January 1948 should be considered on a case by
case basis.
Discretionary
settlement criteria
Settlement applications from former
members of the Brigade of Gurkhas who were discharged before 1
July 1997 will normally be approved, provided the former Gurkha
served for at least 4 years in the Brigade.
It is only where adverse information
of a serious nature is received about the applicant - for example,
evidence of any serious criminal activity - will the application
normally be refused. In cases where there is evidence of serious
criminal activity the normal threshold should be met in order for
the case to be considered for refusal of settlement. That is a
custodial sentence of at least 12 months if the offence was
committed in the UK or, if committed outside the UK, the offence
would have been punishable by a custodial sentence of at least 12
months if it had occurred within the UK. Cases where such
information comes to light should be referred by caseworkers in
the normal way.
Should an application be received
from a former member of the Brigade of Gurkhas who is in receipt
of a MoD disability pension, or who has a level 1 -3 award for
gallantry but who has served less than 4 years’ in the Brigade,
discretion should normally be exercised and the settlement
application approved.
Dependants
Discretion will normally be exercised
and settlement granted in line with the main applicant for
spouses, civil partners, unmarried and same-sex partners and
dependant children under the age of 18.
Children over the age of 18 and other
dependant relatives will not normally qualify for the exercise of
discretion in line with the main applicant and would be expected
to qualify for leave to enter or remain in the UK under the
relevant provisions of the Immigration Rules, for example under
paragraph 317, or under the provisions of Article 8 of the Human
Rights Act. Exceptional circumstances may be considered on a case
by case basis. For more information on the exceptional
circumstances in which discretion may be exercised see Section
13.2
Widows and Orphans
Applications from widows and orphans
of former Gurkhas should be considered in line with the guidance
set out in Chapter 15 Section 2A. Where an application for
settlement in the UK is received from the widow, widower, civil
partner, bereaved unmarried or same-sex partner or orphan of a
deceased Gurkha and where the latter’s death occurred in
connection with operational service, discretion will normally be
exercised to grant settlement.
Where the former Gurkhas’ death was
not in connection with operational service their dependants would
not normally qualify for entry under the terms of this guidance
and would be expected to qualify under another category of the
Immigration Rules (for example, paragraph 317 if they have close
family in the UK). Exceptional circumstances may be considered on
a case by case basis. For more information on the exceptional
circumstances in which discretion may be exercised see Section
12.3 and 13.5.
Indicative letter
to send to applicant whose application has been considered and
where an in principle
decision has been made to grant settlement, subject to any other
factors coming to light. This letter is not to be used where, on
the evidence available, there is reason to believe that a grant
of settlement in unlikely to be appropriate.
To whom it may concern
Name: XXXXX XXXXX
DOB: dy/mn/yr
Nationality: Nationality
Service no: No.
Unit: Unit
Name
Address: Full
Address
This
letter confirms that the above named is currently serving with Unit
name and has applied for
indefinite leave to remain in the UK in anticipation of his/her discharge from H M Armed Forces on date
of discharge.
As a member of HM
Armed Forces (HMAF), XXXX is
exempt from immigration control under section 8(4)(a) of the
Immigration Act 1971 and it will not therefore be possible to
complete processing of his/her application until after he/she is
discharged from HM Armed Forces. Although it is not possible to
guarantee the outcome of an application before the final
decision, I can however confirm that preliminary consideration of
the information and evidence submitted in support of his/her application indicate that XXXX is likely to be granted indefinite leave to
remain (‘settlement’) very shortly after their date of
discharge. In the event of
indefinite leave being granted, this will be notified to XXXX by means of an endorsement placed in their
passport which will be returned to the applicant as soon as
possible after their discharge date
So whilst not
providing a guarantee, this letter serves to indicate that
settlement is likely to be granted and is issued to assist XXXX
in making appropriate arrangements for employment after discharge
and for liaising with the relevant authorities for housing,
healthcare and benefits.
[ * I can also
confirm that an application for settlement on behalf of his/her
dependants has also been submitted and if approved they would
normally be granted settlement in line with XXXX, subject to the
proviso that his/her wife/husband/civil partner should have been
married/in a civil partnership with XXXX for the two years prior
to his/her discharge. ]
Please do not hesitate to contact this office
should further information be required.
Medical
discharge proforma for completion by MoD discharging unit or SPVA
(if discharged)
Dear Applicant title /name
In
order that the UK Border Agency can consider your application for
settlement in the light of all the relevant information about
your case, I should be grateful if you would sign and forward
this request for further information to your discharging unit or
(if already discharged) to the Service Personnel and Veterans
Agency (SPVA) who should return the completed form to the UK
Border Agency at the address below. SPVA address: Service
Personnel and Veterans Agency (SPVA), SPVA, Room 6205,
Norcross, Blackpool, FY5 3WP
I agree to the MoD’s disclosure to the UK
Border Agency of the information indicated below.
____________________________________ __________________________
(Signature) (Date)
____________________________________ _______________________________ _________________
(Print
name) (Unit)
(Service
number)
To:
RN/Army/RAF discharging unit or SPVA. Please supply the following
information to the UK Border Agency in relation to my case.
§
date of enlistment, date of discharge, length of service
at date of discharge
§
terms of discharge and corresponding key to what the terms
imply
§
details of injury/injuries/medical condition
§
circumstances of injury sustained/illness (in operational
theatre, in training, off-duty)
§
whether or not attributable to service
§
enclose copy of F Med 133 and * F Med 19 (Army / RAF) or F Med 23 (RN) medical
report or other
independent medical report
(*delete as applicable)
§
available evidence of current condition and likely
prognosis
§
indication of availability of any further treatment
required in country of origin
§
any relevant personal conduct issues including any
criminal activity
§
any other (non-medical) factors involved in decision
discharge
§
Signature
of Unit CO
§
Unit
contact details
Please return this form to: Caseworking
Teams SET 1 – 3 (Armed Forces), UK Border Agency, 7th
Floor, Lunar House, 40 Wellesley Road, Croydon, CR9 2BY
Table to assist consideration of HMAF
‘medically discharged’ cases (see section 11) according to:
Notes:
table assumes applicant meets requirements for settlement (paragraphs
276F - 276Q)
other than requirement to have completed 4 years’ service.
A
grant of limited Leave Outside the Rules on code 1A would give
entitlement to work and claim benefits pending medical
treatment, but not lead to settlement.
|
SOURCE OF INJURY/MEDICAL CONDITION |
PERIOD OF SERVICE PERIOD
COMPLETED AT DATE OF DISCHARGE |
||||||
|
before completion of initial training |
end of initial training - <1 yr |
1 yr - < 2 yrs |
2 yrs - < 3 yrs |
3yrs - < 3yrs 6m |
3yrs 6m - <3yrs 9m |
3 yrs 9m – <
4 yrs |
|
|
within operational theatre |
N/A |
Settlement normally appropriate |
Settlement normally appropriate |
Settlement normally appropriate |
Settlement normally appropriate |
Settlement normally appropriate |
Settlement normally appropriate |
|
outside operational theatre attributable to service in HMAF |
Settlement normally inappropriate unless very
serious or catastrophic injury involved Possible grant of limited leave outside the
rules to complete treatment |
Settlement may be appropriate - depending on
degree of injury/illness and prognosis especially if applicant needs ongoing medical
treatment post-discharge. Possible grant of limited leave outside the
rules to complete treatment |
Settlement may be appropriate - depending on
degree of injury/illness and prognosis especially if applicant needs ongoing medical
treatment post-discharge. Possible grant of limited leave outside the
rules to complete treatment |
Settlement normally appropriate depending on degree of injury/illness and
prognosis especially if applicant needs ongoing medical
treatment post-discharge. |
Settlement normally appropriate depending on
degree of injury/illness and prognosis especially if applicant needs ongoing medical
treatment post-discharge. |
Settlement normally appropriate even where
injury/illness relatively minor |
Settlement normally appropriate even where
injury/illness relatively minor |
|
outside operational theatre non-attributable to service in HMAF |
Settlement normally inappropriate Possible grant of limited leave outside the
rules to complete treatment |
Settlement normally inappropriate Possible grant of limited leave outside the
rules to complete treatment |
Settlement normally inappropriate Possible grant of limited leave outside the
rules to complete treatment |
Settlement normally inappropriate Possible grant of limited leave outside the
rules to complete treatment |
Settlement may be appropriate Possible grant of limited leave outside the
rules to complete treatment |
Settlement may be appropriate |
Settlement may be appropriate (even
where injury/illness relatively minor) |
Authorisation Form to be completed by a
former Gurkha seeking indefinite leave
Application
Reference (if known): _____________________
Dear Applicant title /name
In
order that the UK Border Agency can consider your application for
settlement in the light of all relevant information about your
case, I would be grateful if you would sign and return this form
as quickly as possible. It authorises the UK Border Agency to
obtain a copy of documentary material held by the Ministry of
Defence that relates to your length of service in the Brigade of
Gurkhas. This information will be used solely in relation to your
application for indefinite leave to enter or remain in the United
Kingdom.
I have understood the above and agree to the MoD
Record Office’s disclosure to the UK Border Agency (UKBA) of
information requested by UKBA in connection with my application
for indefinite leave to remain or enter, as indicated below.
_____________________________ ___________________ _____________________
(Applicant
signature) (Date)
(Service
number)
_____________________________ _________________ ______________________
(Print
name) (Date
of Birth) (former
Gurkha unit)
Please return this completed form to:
EC POST ADDRESS
OR
SET 1-3 (Armed Forces) UK Border
Agency, 7th Floor, Lunar House, 40 Wellesley Road,
Croydon, CR9 2BY United Kingdom
INFORMATION
REQUEST TO GURKHA RECORDS OFFICE, POKHARA
To: GURKHA
RECORDS OFFICE.
From: UK
BORDER AGENCY OFFICER
(tel:
)
Applicant
name: XXXXXXXXX
Date of
Birth: XXXXXXXXX
Service
number: XXXXXXXXX
Former
Unit(s): XXXXXXXXX
1. I attach a
signed letter, authorising disclosure of information held by the
Gurkha Records Office, relating to the above named.
2. I would be grateful if
you would supply by secure post to the address below* the following information required by the
UK Border Agency:
* a copy of
information and documents held relating to the above named’s service
record showing the length of service and date of, and reason for,
discharge
*
________________________
3. Please complete, sign and date below.
To be completed by Records Officer
I hereby attach a copy
of information requested by the UK Border Agency relating to the
above named comprising _______sheets in total.
_____________________________
________________________________
Signature Print
full name
_____________________________ ___________________
Position Date
4. Please
return this completed form and information requested to:
EC POST ADDRESS or
SET 1-3 (Armed Forces) UK Border Agency,
7th Floor, Lunar House, 40 Wellesley
Road, Croydon, CR9 2BY, United Kingdom