Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: HU/02515/2015
IA

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 6 March 2017
On 21 April 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE CHAPMAN

Between

Ms GUMA THAPA
(NO ANONYMITY ORDER MADE)
Appellant

v

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
________________________________________
DECISION & REASONS
________________________________________

Representation:
For the Appellant: No representative
For the Respondent: Ms. J. Isherwood, Home Office Presenting Officer

1. The Appellant is a national of Nepal, born on 16.5.88. She applied for entry clearance as the adult dependant daughter of Mr Ran Bahadur Thapa, a former Gurkha soldier. This application was refused on 2.7.15. The appeal against this decision came before First tier Tribunal Judge Mathews for hearing on 10 May 2016 for consideration on the papers. In a decision promulgated on 25.5.16 he dismissed the appeal, on the basis that the Appellant did not fall within the terms of the Home Office policy, at Annex K of Chapter 15 of the Immigration Directorate Instructions, in that she had been living apart from her parents for more than two years and that the Respondent’s decision to refuse entry clearance was not disproportionate.

2. Permission to appeal to the Upper Tribunal was sought on 21.12.16. The grounds of appeal in support of the application are signed by the Appellant’s father and Sponsor and essentially submit that the First tier Tribunal Judge erred materially in law in failing to take account of the fact that the Home Office policy was not introduced until January 2015, by which time the parties had already been living apart for more than 2 years and this was a relevant issue in the assessment of proportionality. Permission to appeal was granted by Upper Tribunal Judge Canavan on 12 January 2017.

Hearing

3. The error of law hearing took place on 6 March 2017. The Sponsor and his wife attended the hearing but were unrepresented. I heard submissions from Ms Isherwood on behalf of the Entry Clearance Officer. I drew her attention to the fact that the judgment in Ghising (Gurkhas/BOCs: historic wrong; weight) [2013] UKUT 00567 (IAC) had not referred to by the First tier Tribunal Judge in his decision. Ms Isherwood sought to rely on the fact that at [23] and [24] the judge does refer to the issue of historic injustice. She submitted that the judgment in Ghising at [16] was not a trump card and not every application will inevitably succeed. The ECO had given consideration to the decision in Ghising in respect of the individual circumstances of the case. It was open to the Judge to make the findings he did.

4. I reserved my decision, which I now give with my reasons. The decision of the Entry Clearance Officer was based on the fact that the Appellant’s parents migrated to the United Kingdom on 28.2.11 and did not choose to remain with her in Nepal; that the Appellant is now an adult, is able to care for herself and has no personal incapacity. In respect of the judgment in Ghising (Gurkhas/BOCs: historic wrong; weight) [2013] UKUT 00567 (IAC) the Entry Clearance Officer noted it but stated that s/he was satisfied that the reasons for the refusal outweigh the consideration of historical injustice.

5. On appeal to the First tier Tribunal, the First tier Tribunal Judge at [23] noted that the purpose of the policy was to address a historic wrong and thus the first four questions set out in Razgar [2007] UKHL 27 were answered in favour of the Appellant but he concluded at [24] that, whilst attaching significant weight to what has been termed the “historical wrong” that has required the Home Secretary’s policy, on the evidence before him she is healthy and properly cared for, considerable time has passed before the application was made; she has other family members within her home country, is able to receive support and visits from her parents and is not prevented from seeking to visit them with a visitor’s visa.

6. I find that the First tier Tribunal Judge materially erred in law in his assessment of the proportionality of the decision of the Entry Clearance Officer. Whilst it was not incumbent upon him to refer to the judgment in Ghising (Gurkhas/BOCs: historic wrong; weight) [2013] UKUT 00567 (IAC) by name, it is far from clear from [23] and [24] of the decision that the Judge correctly directed himself as to the principles set out in that judgment. It is clear from the context of his remarks as to “historical wrong” that he is referring to the Home Office policy rather than to the principles in Ghising and this is a material error capable of resulting in a different outcome as to the assessment of the proportionality of the decision.

7. I proceed to re-make the decision. The only issue before me is whether the decision of the Entry Clearance Officer refusing to admit the Appellant on human rights grounds is proportionate, given that the Appellant is unable to qualify for settlement under either the Immigration Rules or Annex K of Chapter 15 of the Immigration Directorate Instructions.

8. In Ghising (Gurkhas/BOCs: historic wrong; weight) [2013] UKUT 00567 (IAC) the Upper Tribunal made inter alia the following findings:

“54. … 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 her to show that a decision to remove is proportionate…

59. … we accept Mr Jacobs’ submission that where Article 8 is held to be engaged and the fact that but for the historic wrong the Appellant would have been settled in the UK long ago is established, this will ordinarily determine the outcome of the proportionality assessment; and determine it in an Appellant’s favour. The explanation for this is to be found, not in any concept of new or additional “burdens” but, rather, in the weight to be afforded to the historic wrong/settlement issue in a proportionality balancing exercise. That, we consider is the proper interpretation of what the Court of Appeal were saying when they referred to the historic injustice as being such an important factor to be taken into account in the balancing exercise…

60… If the Respondent can point to matters over and above the “public interest in maintaining of a firm immigration policy” which argue in favour of removal or the refusal of leave to enter, these 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. Being an adult child of a UK settled Gurkha ex-serviceman is, therefore, not a trump card, in the sense that not every application by such a person will inevitably succeed. But, if the Respondent is relying only upon the public interest described by the Court of Appeal at paragraph 41 of Gurung then the weight to be given to the historic injustice will normally require a decision in the Appellant’s favour.”

9. The reasons provided by the Entry Clearance Officer for finding that the reasons for the refusal outweighed the consideration of historical injustice were that the Appellant’s parents migrated to the United Kingdom on 28.2.11 and did not choose to remain with her in Nepal; that the Appellant is now an adult, is able to care for herself and has no personal incapacity. Reference was also made to the fact that the Appellant has lived in Nepal for the majority of her life; there were no obvious factors preventing her from working in Nepal and no obvious reason why her father would be unable to continue to support her financially.

10. The public interest referred to at paragraph 41 of the Court of Appeal judgment in Gurung [2013] EWCA Civ 8 is that of maintaining a firm immigration policy. None of the reasons identified by the Entry Clearance Officer as part of the proportionality assessment, taken either individually or cumulatively, amount to matters over and above the “public interest in maintaining of a firm immigration policy.” There are no issues of criminality or a bad immigration history in this particular case. Consequently, I conclude that the reasons for refusal do not outweigh the consideration of historical injustice and that a correct application of the principles set out in Ghising (Gurkhas/BOCs: historic wrong; weight) [2013] UKUT 00567 (IAC) leads to the clear conclusion that the appeal should be allowed on the basis that the Entry Clearance Officer‘s decision is a disproportionate interference with the Appellant’s right to family life with her parents in the United Kingdom.

11. I find a material error of law in the decision of the First tier Tribunal Judge’s decision. I substitute a decision allowing the appeal on human rights grounds.

Rebecca Chapman

Deputy Upper Tribunal Judge Chapman

18 April 2017