Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: HU/02128/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision and Reasons Promulgated
On 10 April 2017
On 27 April 2017

Before

UPPER TRIBUNAL JUDGE HANSON

Between

AMYMA RAI
(anonymity direction not made)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr J Khalid
For the Respondent: Mr S Kotas

DECISION AND REASONS

1. This is an appeal against a decision of First-tier Tribunal Judge Gribble (‘the Judge’) who a decision promulgated on 8 November 2016 dismissed the appellant’s appeal against the refusal of an Entry Clearance Officer, dated 29 June 2015, to grant entry clearance to the appellant as the adult dependent daughter of a former Gurkha soldier.

Error of law

2. Permission to appeal was sought by the appellant and granted by First-tier Tribunal Judge Gibb on 6 March 2017 in the following terms:

1. The appellant, a citizen of Nepal, was refused entry clearance to settle with her family in the UK as the adult child of a former Gurkha on 29.6.2015, and her appeal was dismissed by Judge of the First-tier Tribunal Gribble (promulgated on 08.11.2016). An earlier appeal against a similar refusal had been given dismissed by Deputy Upper Tribunal Judge Chana in 2012.
2. The grounds, which were in time, complain that the judge erred in: (1) not taking account of the cases of Gurung and others [2013] EWCA Civ 8 and Ghishing and others (Gurkhas/BOC’s: historic wrong; weight) [2013] UKUT 00567 (IAC); (2) through overreliance on the earlier decision of DUTJ Chana not considering the altered policy brought in for decisions after 5.1.2015 (Annex K to the IDI’s); (3) placing undue adverse weight on the failed student application made by the appellant and her parents in 2014; and (4) resting a finding that family life had been severed in 2010 when the rest of the appellant’s family left to settle in the UK solely on the fact that they left her behind when her application was refused.
3. The grounds are arguable.
4. The key finding is in [34] of the determination, namely that family life ended when the family left the appellant behind in 2010. Based on that finding the judge did not go on to consider the IDI’s or the Gurung and Ghising cases. Given that she indicated at [36] that she would have allowed the appeal on Article 8 grounds were it not for that finding any arguable legal error in the family life finding would be material to the outcome. The Court of Appeal in Gurung approved the UT guidance on family life at paras 50 – 62 of Ghising (family life-adults- Gurkha policy) [2012] UKUT 00160 (IAC). This corrected a misunderstanding that had led to an overly narrow approach based on Kugathas. No caselaw is mentioned by the judge, that it is arguable that she erred in law in applying an incorrect legal framework, and relying on the approach in 2012 where Kugathas was the only authority relied on.
5. If the appellant was only left behind because her application was refused (which does not appear to be disputed); the family have shown determined efforts to reunite the family; it appears not to have been disputed that the appellant has remained unmarried and financially dependent throughout; then it was arguably not open to the judge on the facts, if the correct legal approach had been adopted, to make a finding that family life was severed in 2010 when the appellant was an unmarried 20-year-old who had never lived away from her parents.
6. There is also some force in the point about reliance on the 2012 determination, where it is arguable that the legal error identified in Ghishing has been repeated through an overly narrow application of Devaseelan, which deprived the appellant and her family of a proper consideration of her case under the significant changes made by the Secretary of State in 2015.

3. In her Rule 24 response the Secretary of State did not oppose the appellant’s application for permission to appeal and invited the Upper Tribunal to determine the appeal afresh to enable it to consider whether the appellant qualifies for entry as the adult dependent daughter of a former Gurkha soldier.
4. Considering the respondent’s acceptance that the Judge has materially erred in law in the manner set out in the application for permission to appeal, reflected in the grant of permission, the determination shall be set aside.

Remaking the decision

5. It was accepted that the Upper Tribunal could proceed with the substantive rehearing of the appeal on the day. Accordingly, the evidence included in the appellant’s bundle filed with the First-tier Tribunal under cover of a letter of 18 October 2016 and additional oral evidence received from the appellant’s father has been considered with the required degree of anxious scrutiny.

The law

6. The applicable law is contained both within decisions of the Court of Appeal and Upper Tribunal and in Annex K of the IDI headed “Adult Children of Former Gurkhas.
7. There are a number of relevant cases but it suffices to refer to Ghising and others (Ghurkhas/BOCs: historic wrong; weight) [2013] UKUT 00567 (IAC) in which it was held that (i) In finding that the weight to be accorded to the historic wrong in Ghurkha ex-servicemen cases was not to be regarded as less than that to be accorded the historic wrong suffered by British Overseas citizens, the Court of Appeal in Gurung and others [2013] EWCA Civ 8 did not hold that, in either Gurkha or BOC cases, the effect of the historic wrong is to reverse or otherwise alter the burden of proof that applies in Article 8 proportionality assessments; (ii) When an Appellant has shown that there is family/private life and the decision made by the Respondent amounts to an interference with it, the burden lies with the Respondent to show that a decision to remove is proportionate (although Appellants will, in practice, bear the responsibility of adducing evidence that lies within their remit and about which the Respondent may be unaware); (iii) What concerned the Court in Gurung and others was not the burden of proof but, rather, the issue of weight in a proportionality assessment. The Court held that, as in the case of BOCs, the historic wrong suffered by Gurkha ex-servicemen should be given substantial weight; (iv) Accordingly, where it is found that Article 8 is engaged and, but for the historic wrong, the Appellant would have been settled in the UK long ago, this will ordinarily determine the outcome of the Article 8 proportionality assessment in an Appellant’s favour, where the matters relied on by the SSHD/ ECO consist solely of the public interest in maintaining a firm immigration policy; (v) It can therefore be seen that Appellants in Gurkha (and BOC) cases will not necessarily succeed, even though (a) their family life engages Article 8(1); and (b) the evidence shows they would have come to the United Kingdom with their father, but for the injustice that prevented the latter from settling here earlier. If the Respondent can point to matters over and above the public interest in maintaining a firm immigration policy, which argue in favour of removal or the refusal of leave to enter, these matters must be given appropriate weight in the balance in the Respondent’s favour. Thus, a bad immigration history and/or criminal behaviour may still be sufficient to outweigh the powerful factors bearing on the Appellant’s side of the balance.
8. The relevant parts of Annex K define an adult child of a former Gurkha as the son or daughter of a former Gurkha which applies to the appellant.
9. Section 9 of Annex K headed “Settlement for adult children of former Gurkhas" is in the following terms:

9. In order for settlement to be granted to the adult child of a former Gurkha under this policy, a valid application for entry clearance must be made in accordance with paragraphs 24 – 30 of the Immigration Rules and the applicant will normally have to meet the following conditions:

1. The former Gurkha parent has been, or is in the process of being granted settlement under the 2009 discretionary arrangements; and
2. The applicant is the son or daughter of the former Gurkha; and
3. The applicant is outside the UK; and
4. The applicant is 18 years of age or over and 30 years of age or under on the date of application (including applicants who are 30 as at the date of application); and
5. The applicant is financially and emotionally dependent on the former Gurkha; and
6. The applicant was under 18 years of age at this time of the former Gurkhas discharge; (or if the applicant was born after discharge seek guidance in paragraph 16 of Annex K of this guidance) and
7. The Secretary of State is satisfied that an application for settlement by the former Gurkha would have been made before 2009 had the option to do so been available before 1 July 1997; and
8. The applicant has not been living apart from the former Gurkha for more than two years on the date of application, and has never lived apart from the sponsor for more than two years at a time, unless this was by reason of education or something similar (such that the family unit was maintained, albeit the appellant to lift away); and
9. The applicant has not formed an independent family unit; and
10. The applicant does not fall to be refused on grounds of suitability under paragraph 8 or 9 of Appendix Armed Forces to the Immigration Rules or those provisions of Part 9 of the Immigration Rules (general grounds for refusal) that apply in respect of applications made under Appendix Armed Forces.

10. Paragraph 26 of Annex K states “where an application falls for refusal under this policy, the decision maker must consider whether Article 8 otherwise requires them to be granted leave on the basis of exceptional circumstances in accordance with the guidance contained in Appendix FM1.0b: Family Life (as a Partner or Parent) and Private Life: 10 year Routes.

Devaseelan

11. The grant of permission refers to an earlier determination by Deputy Upper Tribunal Judge Chana which was promulgated on 28 June 2012. The Deputy Judge considered this appellant’s appeal against the refusal of entry clearance dated 8 March 2011 pursuant to paragraph 317 of the Immigration Rules and Article 8 ECHR, an application made to permit the appellant to settle in the United Kingdom with her family. The Deputy Judge noted the appellant relied upon the respondent’s published policy in force at that date in respect of former members of HM Forces and families as she is an adult child of a Gurkha.
12. The Deputy Judge sets out the procedural history in relation to the appellant’s previous applications at [1]-[4] which includes reference to a decision of First-tier Tribunal Judge Oakley promulgated on 4 February 2012 in which the appellant’s appeal under the Rules was dismissed although allowed to the limited extent it was remitted to the Entry Clearance Officer for consideration of the appellant’s case in accordance with the published policy on adult children of former Gurkha soldiers, and another decision of First-tier Tribunal Judge Callow which was found to have superseded the earlier decision. It was held by the Deputy Judge that any right of appeal only lay against the latter decision and not against that of Judge Oakley.
13. The Deputy Judge summarises the evidence before her at [10]-[14] in the following terms:

11. I heard evidence from the appellant’s father, Mr Rajkumar Rai. He adopted his statements dated 8 June 2012 and 8 August 2011. In cross-examination, he said that he signed up with the Army for five years and continued to extend his contract. He said that he had discussed this with his wife. He said that he was aware that extending his contract with the British Army would entail separation from his wife and children.
12. In response from questions from me Mr Rai stated that he left his daughter in Nepal and came to the United Kingdom in June 2010. He said that his wife and son aged 14 joined him in June 2010. He said that his son was studying in boarding school in India and his daughter was studying in Nepal. He said that his daughter lives in a house in Kathmandu which belongs to him he said that he has only returned to Nepal on one occasion to pick up his son.
13. Miss Kiss asked Mr Rai when his son is studying started in Nepal and he replied that he was 13 years old when he went to India to study and stayed there for four years.
14. The next witness to give evidence was Mrs Sabitra Rai, the appellant’s mother. She adopted his statements dated 8 August 2011 and 8 June 2012. In cross-examination she was asked to address the statement in the refusal letter that she had her aunt’s mother’s mother and various other relatives living in Nepal. She said that it is her grandmother who died last year. She said that her daughter lived alone when her son was in hospital in India. She said that the other relatives live in the village and mountains where there is no school. She said that she agreed for her husband to sign up with a British Army even the though she knew that that would lead to separation.
15. I asked Mrs Rai why she should collect her son from Nepal and leave her daughter alone in Nepal and why she did not stay with her until entry clearance had been granted to her. She said “my husband and son were here” and “I had to look after my son because he is young so I had to look after him”. She said that she went to pick up and in April 2011 and has not returned to Nepal to see her daughter.

14. The Deputy Judge noted that in his statement of the 8 June 2012 Mr Rai stated that at the moment his neighbour Mr Surwal is caring for his daughter. He said that this arrangement cannot continue as he has his own family to look after.
15. The Deputy Judge thereafter sets out the findings of fact at [17]-[37] in the following terms:

17. The appellant’s father and mother came to this country and left their daughter by herself in Nepal purportedly cared by a neighbour. They went and picked up their son from Nepal after he returned from boarding school in India. This suggests to me that the appellant’s parents were satisfied that their daughter was well looked after as they would otherwise not have left her alone in Nepal.

18. At paragraph 19 of his statement dated 8 August 2011, Mr Rai states “in our Gurkha culture an unmarried woman is the responsibility of the parents. Amyma is unmarried and single. She is still very reliant on myself for guidance and support. She is very vulnerable without this guidance in our society.” At paragraph 20 Mr Rai stated “I feel very upset at having to leave my unmarried daughter on her own because in a strongly paternalistic society, the daughter must remain within the household of father until she is married”. At paragraph 21 he stated “I am torn between leaving my daughter alone and settling in the UK. On one hand the British Government has recognised my loyal service and granted settlement but they have failed to recognise the sacrifices that my children have had to make as well”.

19. This evidence still does not explain why Mr and Mrs Rai would leave a young girl on her own in a house in Nepal given their cultural traditions as explained by Mr Rai. I am alive to Mr Rai’s cultural practices but it was not consistent with these practices for he himself to leave a vulnerable young unmarried daughter in a house by herself in Nepal. The appellant’s mother in her evidence was not able to give any reason why she did not stay with the appellant until such time as entry clearance was granted to the appellant. At the hearing, the appellant’s mother said that she had come to the United Kingdom to look after her son. Yet her evidence is that he was studying in India at boarding school and therefore she was accustomed to live away from her son. This also does not explain why Mr Rai could not look after his son in the interim.

20. This evidence demonstrates to me that the appellant is not living by herself in Nepal. I am not being told the whole truth by Mr and Mrs Rai about their daughter’s circumstances in Nepal.

21. Mr and Mrs Rai collected their son from Nepal and brought him to the United Kingdom. They have not visited the appellant in Nepal since that time. Given their evidence that they are very worried about their daughter, I find their conduct is inconsistent with this worry.

22. I find that the appellant is living independently in Nepal.

23. I have considered the case of Pun and others (Gurkhas – policy – article 8) Nepal [2011] UKUT 377 (IAC).

24. I have also taken into account the remarks by Senior Immigration Judge McKee who stated that in cases of this kind, the Tribunal is not being asked to exercise discretion under the policy, but rather that in applying Article 8, the policy should be taken into account when considering the weight to be given to the public interest in maintaining a firm and fair immigration control when assessing proportionality.

25. The first question for me to answer in respect of Article 8 is whether the appellant has family life with his father and mother. In Kugathas v Secretary of State for the Home Department [2003] INLR 170 the Court of Appeal said that in order to establish family life it is necessary to show that there is a real, committed or effective support or relationship between the family members and that normal emotional ties between a parent and adult child would not, without more, be enough.

26. The evidence is that the appellant’s parents left the appellant alone in Nepal and came to live in the United Kingdom. They have lived in this country for the last two years without the appellant. This demonstrates to me that whilst the appellant’s parents may have normal emotional ties with the appellant, they are not so strong as to prevent them from living apart from their daughter for a period of years. I find that the appellant is studying fashion design as evidenced by a letter from her college in Nepal.

27. I find that the appellant has not demonstrated that she has ties with her father, mother and brother over and above normal emotional ties expected between adult children, parents and siblings. The appellant therefore falls at the first question set out in Razgar which is. I find that she does not have a family life in the United Kingdom sufficient to engage Article 8.

28. However, in the event that I am wrong about this, I have proceeded to consider whether the refusal of entry clearance to the appellant would be a breach of Article 8. I find that even if there is family life sufficient to engage Article 8, the refusal of entry clearance would be an interference with family life, but that that interference would be in accordance with the law and for the legitimate aim of immigration control. The remaining question would then be whether the interference is disproportionate to that legitimate aim.

29. I take into account that the appellant’s family life has over the last two years being conducted from a distance, with the appellant’s father in the United Kingdom supporting the appellant who remains in Nepal. No reason has been advanced why the appellant’s father could not continue in future to support the appellant financially in Nepal, for any necessary period until the appellant is able to find a job or otherwise to attain financial self-sufficiency. While the job situation may be difficult in Nepal, it is unlikely that the appellant will be dependent on her parents financially for ever. If she is fortunate, the appellant may find a job quite soon. If she is unfortunate, it may take longer. I also take into account that the appellant’s parents and brother would be able to visit the appellant in Nepal. The appellant might also apply for a visitor visa to visit her family in the United Kingdom.

30. I have further considered the decision of the House of Lords in Bekou-Betts v Secretary of State to the Home Department [2008] UKHL 39. In light of this decision I have to consider the family life of all those who share their family life with the appellant, in this case the appellant’s father, mother and brother who live in United Kingdom.

31. I have regarding my assessment of proportionality to an historic injustice R (Limbu) v SSHD [2008] EWHC, 2261 (Admin), Entry Clearance Officer, Mumbai v NH (India) [2007] EWCA Civ 1330, Patel, Modha & Odedra v Entry Clearance Officer (Mumbai) [2010] EWCA Civ 17. In Ghishing (family life – adults – Gurkha policy) [2012] UKUT 00160 (IAC) the Upper Tribunal said that each case should be analysed on its own facts, and that the “historic wrong” was not as severe as that perpetrated on British overseas citizens and carries substantially less weight.

32. In my assessment of Article 8 I have also considered the respondent’s policy and the case of Pun and others (Gurkhas – policy – article 8) Nepal [2011] UKUT 377 (IAC) in which it was found, to quote from the head note, that “the policy creates a broad discretion to be exercised by the decision taker in the light of the individual facts and circumstances of each case taking into account but not limited to the identified bullet points (of the policy). These serve to identify some factors which may be relevant whilst not excluding other factors which may, depending on the facts of the case be equally relevant”. Pun also indicates, again to quote the head note, that “whereas in the present case is a human rights appeal is set in the context of the amendments to the Rules to deal with a particular historical issue and with specific published policies dealing with the approach to be taken in the case of adult dependence not falling within the Rules, a decision under article 8 will inevitably be informed by the provisions of the Rules and the policy”. The Tribunal’s conclusions in that case are set out in paragraphs 26 – 35.

33. The respondent considered the policy and declined to exercise their discretion in the appellant’s favour.

34. The appellant is an adult aged 23 years. She will have an education and has an ability to find a job or otherwise earn a living. If she has difficulty doing so, it may be that he (sic) will continue to be financially dependent upon his (sic) father for longer.

35. In Pun, it was held at paragraph 27 that the policy “sets out a true discretion to be exercised outside the Rules by the respondent and cannot reasonably be interpreted as setting out a number of different requirements where the fulfilment of one or more leads to an entitlement to a grant of entry clearance”, and that there is no presumption that entered entry clearance will be granted if one or more of the bullet point factors is met.

36. As far as Article 8 is concerned, having considered all of the circumstances of this case as a whole, including the policy, I conclude that the decision to refuse entry clearance to the appellant is not disproportionate to the legitimate aim of immigration control.

37. I am satisfied that the decision of the respondent in this case was in accordance with the law and in accordance with the policy.

16. As this decision related to the same appellant as in this appeal, and addressed a similar issue in relation to whether family life recognised by Article 8 ECHR exists and the respondent’s publisher policy, the decision of the Deputy Judge is the starting point although it is accepted that I may depart from those findings if material is made available that warrants such a stance being taken.
17. Had the Deputy Judge not considered the matter in the alternative it is clear that the decision would have been susceptible by way of challenge to the Court of Appeal as the Deputy Judge acknowledged that the appellant was still a student are not financially independent but found the family life recognised by Article 8 did not exist. It is settled law that the fact a child attains the age of 18 does not automatically mean that the family life recognised by Article 8 with his or her parents immediately ceases. In PT (Sri Lanka) v Entry Clearance Officer, Chennai [2016] EWCA Civ 612 it was held that some tribunals appeared to have read Kugathas [2003] EWCA Civ 31 as establishing a rebuttable presumption against any relationship between an adult child and his parents or siblings being sufficient to engage Article 8. That was not correct. Kugathas required a fact-sensitive approach, and should be understood in the light of the subsequent case law summarised in Ghising (family life – adults – Gurkha policy) [2012] UKUT 160 (IAC) and Singh [2015] EWCA Civ 630. There was no legal or factual presumption as to the existence or absence of family life for the purposes of Article 8 nor was there any requirement of exceptionality. It all depended on the facts. The love and affection between an adult and his parents or siblings would not of itself justify a finding of a family life. There had to be something more. A young adult living with his parents or siblings would normally have a family life to be respected under Article 8. A child enjoying a family life with his parents did not suddenly cease to have a family life at midnight as he turned 18 years of age. On the other hand, a young adult living independently of his parents might well not have a family life for the purposes of Article 8 (paras 23 – 26).
18. The Deputy Judge, however, considered the matter in the alternative and found the decision proportion which, if it was found that family life recognised by Article 8 exists, is the element of the earlier decision which is more heavily impacted upon by the more recent jurisprudence set out above.

Discussion

19. Considering the matter initially by reference to Appendix K, it is not disputed that the appellant’s father is a former member of the Brigade of Gurkhas who served in the British Army for 15 years before retiring in 1995. It is not disputed that the appellant’s father has been granted settlement based upon his previous military service. It is not disputed the appellant is the daughter of the former Gurkha, that the appellant is outside the United Kingdom, or that the appellant satisfies the age requirements.
20. The focus of the respondent’s challenge is stated to be the lack of evidence that the appellant is financially and emotionally dependent upon her father and that there is sufficient evidence to show that the appellant and her father have been living apart for more than two years at the date of the application and had lived apart from the sponsor for more than two years at a time.
21. The Deputy Judge did not find the witnesses before her to be candid about their situation and the living arrangements. The Deputy Judge noted the lack of evidence of visits between the appellant and her parents. In relation to this element the current position is stated to be that the appellant has been visited regularly by both her father and mother. Evidence of such visits submitted in tabular form reads as follows (the reference to Sabitra is to the appellant’s mother and to Raj to her father):

Sabitra
Raj
26 June 2010
26 June 2010
2 April 2011

12 February 2013
5 September 2014

11 May 2015
22 February 2016

21 March 2016

22. The visits are supported by stamps in the respective passports.
23. There are also several copy photographs provided showing the appellant with family members during such visits and screenshots of Skype communications, together with copies of screen printouts relating to other forms of electronic communication.
24. The appellant’s father claimed that he is the principal person within the family providing financial and emotional support for his daughter. When asked who cared for the appellant when he came to the United Kingdom the witness stated that it was his brother and also mentioned a neighbour who lives next door which he then clarified in the following response by stating it was his neighbour and not his brother. The witness confirmed that his wife has relatives in Nepal but claimed that they do not live near his daughter and had not played any part in caring for her. When the evidence given to the Deputy Judge regarding the arrangements for caring for the appellant was put to the witness, he claimed that Mr Suwal was his immediate neighbour as his brother was living in the home as he wanted the neighbour to “favour obtaining some kind of help”. The witness confirmed that such assistance was no longer provided as the neighbour had moved out although he claimed the neighbour had not told him that he was moving. The witness claimed his daughter did not tell them that the neighbour had moved until a later date during a telephone call and that when Mr Suwal left there was no one else to assist his daughter who was thereafter alone.
25. In 2011 the appellant was studying for A-levels on a two-year course although the witness did not know precisely what subjects she was studying. He was aware she studied in Kathmandu. He thought his daughter finished her A- level studies in 2012 but could not recall the precise dates and could not recall what grades his daughter obtained. Once his daughter had completed her A-level studies she commenced studying fashion design at a local college which she completed in 2016. The witness confirmed his daughter passed her degree having studied for four years as a full-time student.
26. There is within the bundle a letter from a college in Nepal confirming the appellant studied fashion between December 2012 and January 2016. When asked what she had been doing since she had completed her degree, the witness stated that they had visited their daughter since this date and that she was undertaking an internship at the same college where she had been studying.
27. The Deputy Judge clearly felt very strongly that the witnesses before her were not telling the truth about the appellant’s circumstances in Nepal. The Deputy Judge makes a credible point that based upon the appellant’s father’s own evidence regarding the cultural norms in Nepalese society it was not credible that the appellant would have been left alone to fend for herself once remaining family members came to the United Kingdom. It appears that it is more likely than not that rather that leaving the appellant alone arrangements would have been made, either with other members of the family still living in Nepal or a close neighbour, to provide support and assistance to the appellant. Not to have done so would be contrary to the appellant’s father’s own evidence of how such matters are dealt with.
28. If the appellant was left in the care of a neighbour it seems implausible that the neighbour would leave without at least informing the appellant’s father, who is the head of the family and no doubt the one who arranged appropriate care, or that the appellant herself would not tell her father until a telephone call on a later occasion that the neighbour had left if such continued form of support was necessary for the appellant’s safety and well-being, which is likely to be the case unless she had formed an independent life of her own or was of sufficient age to care for herself even if not living an independent life.
29. The evidence is, however, that the appellant remained in education until January 2016. Even though she was over the age of majority, in UK law terms, it is clear the appellant remained dependent upon her father for the provision of support, accommodation and financial assistance and, as such, family life envisaged by Article 8 is likely to have existed at the date of decision.
30. What has not been made out on the evidence is that the appellant remained dependent emotionally solely upon her father but I find that she did upon her parents together. This included her father, even though he appeared to be able to recall very little in relation to his daughter’s academic achievements. It is accepted that the appellant may be more dependent emotionally upon her mother but her mother was not called to give evidence and indeed had to be warned during the proceedings to remain silent as the Presenting Officer indicated that he heard the appellant’s mother speaking after questions had been asked in examination in chief/cross examination before the answers had been given by the appellant’s father.
31. In relation to the question of whether the appellant had lived apart for more than two years it appears to be that until January 2016 the appellant remained in education with no evidence that she had joined an independent family unit, was self-sufficient, or formed an independent family unit of her own, and so any period of separation falls within the exception set out in Section 9(8) of Annex K.
32. This is an appeal against the decision of an entry clearance officer made on 29 June 2015 which falls within the period the applicant was studying. This is not a case in which the appellant has been away from the family unit because of education or other requirements but because other members of that family unit having migrated to the United Kingdom.
33. The concern of the Entry Clearance Officer set out in the refusal notice was that the two-year period of separation had been breached based upon the reasons set out in the notice, but these only appear to address the fact the appellant had not lived apart from the sponsor by reason of education i.e. that she had not lived in university or college during term time, as she studied at a local college and lived in her father’s house. The decision maker does not adequately consider in this section of the refusal whether the separation is for “something similar (such that the family unit was maintained, albeit the applicant lived away)”. The reference to a period of two years apart may in some respects be abstract as family life recognised by article 8 may continue even if there is a period of separation of more than two years, although it cannot be said that the reference to a period of two years’ separation in Appendix K is unlawful, and no such assertion has been made. A period of more than two years for “something similar” can include the situation faced by this appellant in which, notwithstanding the fact that she has remained in the family home and continued her education locally, the former member of the Brigade of Gurkhas, her father, has taken advantage of his right to settle in United Kingdom with other family members in the hope that his daughter will be able to join him later once she had completed her education in Nepal. The Entry Clearance Office was satisfied that the appellant’s father had been granted settlement under the 2009 discretionary arrangement and accepted that an application for settlement would have been made between before 2009 had the option to do so been available to the sponsor on discharge before 1 July 1997. The appellant was six years of age when her father retired from the British Army meaning that had the historic injustice not impacted upon her father she would have been entitled to join him as a dependent minor at that stage.
34. I find that notwithstanding the concerns that arose in relation to the evidence recorded by the Deputy Judge, the finding that family life recognised by Article 8 did not exist was arguably incorrect. Both the evidence before the Deputy Judge and the evidence available to this Tribunal shows that the appellant had not formed an independent family unit and, despite being over the age of 18, remained dependent upon her father and, indeed, her mother for her financial, housing, and emotional needs.
35. I find that the appellant has made out a case to show that she can satisfy the requirements of Appendix K of the IDIs. If this matter was considered by reference to Article 8 ECHR, the issue would be one of the proportionality of the decision. In this respect, I refer to the findings in Ghising set out above that “Accordingly, where it is found that Article 8 is engaged and, but for the historic wrong, the Appellant would have been settled in the UK long ago, this will ordinarily determine the outcome of the Article 8 proportionality assessment in an Appellant’s favour, where the matters relied on by the SSHD/ ECO consist solely of the public interest in maintaining a firm immigration policy”. As no countervailing factors have been established in relation to the appellant, such that tip the balance in favour of the Secretary of State, I find that it has not been made out that the refusal of the application by the appellant for entry clearance to allow her to join her family and settle with them in United Kingdom is in accordance with the respondents published policies set out in Appendix K or proportionate.

Decision

36. The First-tier Tribunal Judge materially erred in law. I set aside the decision of the original Judge. I remake the decision as follows. This appeal is allowed.

Anonymity.

37. The First-tier Tribunal did not make an order pursuant to rule 45(4)(i) of the Asylum and Immigration Tribunal (Procedure) Rules 2005.

I make no such order pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008.

Signed……………………………………………….
Upper Tribunal Judge Hanson

Dated the 26 April 2017