Case No. UKUT-00094-(IAC)

.” (emphasis added) As may readily be seen, the Gurkha policy said that adult relatives would “ not normally ” qualify for an exercise of discretion, but exceptional circumstances could be considered on a case by case basis. As the analysis of the Work Policy set out above demonstrates, there is no such criteria in the present matter. 75. Of course, it is clear that in the November 2019 decision the Secretary of State did expressly address her mind to the issue of whether to exercise discretion outside the requirements of paragraph 360. However, I do not consider that that decision, which is outside the scope of this judicial review application, is capable of imputing to the Work Policy a discretion which does not feature on the face of that policy. There is no evidence from the Secretary of State that, in practice, she applies the Work Policy with the inherent possibility of the exercise of discretion in mind. While Mr Williams’ witness statement accepts at paragraph 4 “a power to depart from the policy in exceptional circumstances”, there is no evidence from the Secretary of State that she ever considers whether to do so, save for the single example in the November 2019 decision, and the decision in IJ (Kosovo) . The fact that there is no reference to an exercise of discretion may give rise to a real risk that, as here, the policy is applied in a rigid and inflexible manner, fettering the discretion of the decision maker. 76. The point is underlined with all the more force when one considers that, in the February 2020 application, the applicant expressly invited the Secretary of State to consider exercising discretion on a number of bases. The substance of the response from the Secretary of State in the February 2020 decision was little more than a standard refusal, which not only failed to engage with the specific factors the Secretary of State was invited to consider, but did nothing to support Mr Hays’ contentions that the Secretary of State is prepared to consider the exercise of discretion in an appropriate case. To the extent that the November 2019 decision mitigates against a conclusion of rigid inflexibility in the Work Policy, the February 2020 decision negates and cancels out any such mitigating factors. The February 2020 decision was taken entirely in accordance with the Work Policy and is a true reflection of its rigidity. 77. Mr Hays sought to rely on