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Our public law director Vinita Templeton, Anthony Metzer QC and Sarah Pinder of Goldsmith Chambers, have lodged a claim for judicial review on behalf of a group of eight Commonwealth Veterans (“the Claimants”) against the Secretary of State for Defence (SSD) and the Secretary of State for the Home Department (SSHD).

The two government departments have filed and served their joint Acknowledgment of Service containing their full denial of liability and summary grounds of defence. Their counsel are Sir James Eadie QC and Julia Andersen.

The Claimants challenge Home Office and Ministry of Defence (MOD) practices, which include failures to follow their own guidance and duties concerning Foreign and Commonwealth HM Forces personnel at discharge. These failures had a large impact on the Claimants’ rights to reside in the UK. The Claimants seek a Declaration that these failures occurred as a result of serious, systemic and illegal administrative errors and that they should therefore be entitled to Indefinite Leave to Remain (‘ILR’) free of charge. They also seek a Declaration that other veterans who have already returned to their country of origin who were subject to the same historic injustices, should be given an opportunity to apply for Indefinite Leave to Enter (‘ILE’).

The Claimants also seek a Declaration that charging veterans and their families Home Office application fees is unfair, discriminatory and contrary to the Armed Forces Covenant and maintain that the extortionate and unaffordable application fees for ILR have left the Claimants in a prolonged state of limbo.

All the Claimants are Fijian. Evidence has been adduced from other veterans from Fiji, Kenya and South Africa detailing the same experiences and failures on the government’s part.




On 10th September 2020, the Claimants were served with the SSD’s and SSHD’s summary grounds of defence, which have primarily continued to focus on technical and procedural matters, without detailed engagement with the Claimants’ evidence.

The SSD and SSHD continue to assert that the interests of the Claimants and Commonwealth veterans more widely are best “promoted in more suitable forums than (on their case) a time-barred judicial review claim since they are not properly issues of law but ‘moral’ or political arguments in favour of preferential treatment for this particular interest group”. The Government’s position goes so far as to submit that the claim “impermissibly seeks to draw the Court into making wide-ranging declarations that would support a political campaign to favour the interest of the chosen group over the interests of other users of public funds and applicants for settlement and/or permit the circumvention of” applicable law and policies in relation to applications for ILR.

There is no acknowledgement by the MOD that there have been historic failures in respect of their processes for discharge of Foreign and Commonwealth HM Forces members, despite this featuring at length and in detail in the Claimants’ evidence, as well as being referred to in independent reports available in the public domain as well as Home Office policy guidance¹. The two departments described the Claimants as ignorant of the law and their approach as meaning that “those who chose not to take legal advice or to inform themselves of their actual immigration position and options, being content to rely on hearsay or ignore the issue altogether, would be favoured over those Armed Forces personnel who did order their affairs and pay the applications fees to regularise their immigration positions after discharge”.

There is therefore no recognition of MOD/SSHD institutional obligations and procedural failures.

The government asserts that whilst the Armed Forces Covenant (‘AFC’) does support that special consideration may be appropriate in some cases, it is not appropriate here, nor should it override the clear terms of the law. It is asserted that nothing in the AFC could import new provisions into the legislation or ‘override’ the current law.

Contrary to some indications in parliament and in the media, it is clear that the claim is heavily contested by both government departments acting together.




Notes

1. Foreign and Commonwealth HM Forces personnel become exempt from immigration control upon enlistment until they are discharged from the Forces²


2. The Immigration Rules permit Foreign and Commonwealth citizens discharged from HM Forces to apply for ILR on the basis of a minimum of four years’ service. All the Claimants served in HM Forces for between seven and twelve years and were discharged between2009-2013. An application for permanent residence must however been made, within a period of two years from the discharge date, and a fee of £2,389 per person must be paid.


3. The Armed Forces Covenant can be accessed in full here


4. Fijians represent the largest proportion of Commonwealth recruits³.


5. There is a long military tradition in Fiji. Fijians joining British forces can be traced to 1917, when a group of 101 Fijian men and 6 European officers served as a Labour Corps unloading ships in Calais and Marseilles in France and Taranto in Italy. In 1961, 200 men and 12 women were recruited directly from Fiji and the Seychelles to fill critical shortages throughout the British Army. In 1998, the UK decided to admit Commonwealth recruits from their countries of origin⁴.