Tribunal decisions

The decision

IAC-AH-SAR-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: HU/02916/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 19th January 2017
On 13th February 2017

Before

UPPER TRIBUNAL JUDGE KING TD

Between

Ms SIRJANA GURUNG

Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation:

For the Appellant: The sponsor attends in person
For the Respondent: Mr I Jarvis, Senior Home Office Presenting Officer

DECISION AND REASONS

1. The appellant is a Nepalese national whose date of birth is 2nd May 1989. She sought entry clearance in order to settle in the United Kingdom as the adult dependent relative of her father, Mr Min Bahadur Gurung (ex-Gurkha soldier). This application was considered by the Entry Clearance Officer particularly by reference to the Home Secretary's policy as outlined in Annex K, IDI Chapter 15, Section 2A 13.2 as amended on 5th January 2015.

2. That application was refused on 7th July 2015. Although it is accepted that her sponsor and mother were settled in the United Kingdom and that her relationship and age fell within the policy, it was not accepted that the appellant was emotionally and financially dependent upon her father. It was noted that her father and mother migrated to the United Kingdom on 27th February 2012, therefore the appellant and sponsor had been living apart from more than two years, and generally therefore fell outside the policy. It was not considered that the appellant met the Immigration Rules as to private and family life nor that Article 8 of the ECHR was engaged.

3. The appellant sought to appeal against that decision, which appeal came before First-tier Tribunal Judge Murray for determination. This was on 10th May 2016 and was an appeal upon the papers. This presented an immediate disadvantage to the appellant, as was recognised by the Judge, in that the Judge did not have the benefit of hearing oral evidence from her parents as to the strength and nature of the relationship. A number of documents were presented to show financial transactions; contact by telephone, and some passport entries as evidence of visits.

4. As to the latter matter the Judge said at paragraph 10:-

"The Appellant has also produced copies of her parents' passports as evidence that they have visited her in Nepal but the departure and arrival dates are not sufficiently clear to read on the copied version and she has not set out the dates anywhere".

5. The Judge in considering the appeal, notes in paragraph 10 of the determination the documentation that had been submitted and "the amount of transfers that had been made and dates upon which they were made". There seems to be no challenge to the genuine nature of the documents.

6. The crux of the matter is set out in paragraph 11 in these terms:-

"The Appellant was a 23 year old adult when her parents came to the UK. Whilst there is some evidence of financial support. She has not set out her circumstances prior to their departure and it is unclear what she is currently doing with her time. Whilst there is some recent evidence that they are transferring money to her, the evidence is insufficient to show that she enjoys or enjoyed family life with her parents either at the time of the Respondent's decision or now. She has also not shown that she was not already leading an independent life when her parents came to the UK. She has chosen to have a paper hearing and therefore I have not had the benefit of hearing oral evidence from her parents as to the strength and nature of the relationship. She has to demonstrate that there are more than the normal emotional ties between them for family life within the meaning of Article 8 to exist. I find that she has not done so on the evidence before me".

7. Thus it is that the appeal was dismissed.

8. Permission to appeal to the Upper Tribunal was granted by Judge Pooler on 17th October 2016. It was arguable that the Judge should have approached the appeal by reference to the respondent's policy as found in the IDIs and should have taken into account time spent by the appellant's parents with her in Nepal in assessing whether the appellant met the terms of the policy.

9. Thus it is that the matter comes before me to determine whether or not there exists an error of law. The appellant's father attends and gave evidence through the assistance of an interpreter.

10. He indicated that although he and his wife had come to the United Kingdom in 2012, they remained concern as to the safety and wellbeing of the appellant. They kept in touch with her by way of telephone almost every day as shown by the telephone records. His daughter relies very heavily upon that contact, she feels very vulnerable and lonely where she is. She lives in the family home in a fairly remote village in Nepal. It is a long distance to school and so she has not been studying. Generally she remains in the house looking after the domestic animals and the goats. She herself has health problems. The house itself is in a dangerous condition. It is very badly cracked and damaged as a result of the earthquake. Normally were the sponsor to be living in Nepal he would as an ex-serviceman have obtained financial assistance from the Gurkha Trust to make repairs but that does not apply now that he is living in the UK. He and his wife go to stay with the appellant at least once a year for 28 days; they were last with her between November and December 2016. It used to be the case that there were much longer stays with her but now the immigration restrictions in Nepal are such that the stay cannot be more than 28 days. They have in fact over the years stayed many months with her to give her support and to take away her loneliness. He asked me to find that there are very compassionate circumstances why she should be allowed to come to the United Kingdom. He asked me to find that she satisfies the policy particularly as to financial and emotional dependency, that she in reality has not established her own independent life. She depends utterly upon him for all financial expenses as she earns nothing and leans heavily upon himself and his wife for emotional support and contact and communication.

11. As was noted by the Judge in the determination, it would have been of the utmost assistance had that evidence been presented at the time of the hearing of the appeal but it was not. I indicated to the sponsor that a Judge can only determine an appeal on the basis of such evidence as was presented. If that evidence had been presented, there may well have been a different outcome.

12. Contrary to the view of the Judge granting permission, it is entirely clear that the First-tier Tribunal Judge was very much focused upon the relevant issues arising out of the policy. There was little that could be done in the light of the paucity of the evidence as presented. I note particularly from the grounds of appeal that the appellant expresses herself very well and it is a great pity that the details as raised by the sponsor could not have been more clearly expressed to the respondent in the application.

13. It seems to me, and I so find, that in the circumstances, the approach of the Tribunal Judge was entirely proper and that the appeal fell to be dismissed, not so much because of a lack of merit, but because of lack of evidence. In the circumstances this appeal is dismissed and the decision of the Tribunal Judge is upheld.

14. I indicated to the sponsor that it would still be open for the appellant, as she remains under 30, to make a further application with clear statements both from herself and from him, with relevant documentation. Such should cover in particular the nature of the communication that exists; the dates of the various visits that have been made; photographs or description of the condition of the house; details as to how the appellant spends her time; and all the circumstances which relate to her health, to her isolation and to her vulnerability. Clear evidence needs to be produced to the nature of any financial or emotional dependency which exists, indicating what it is and why it is still present.

Notice of Decision

The appeal by the appellant is dismissed. The decision of the First-tier Tribunal shall stand namely that the appeal in respect of the Immigration Rules and Article 8 ECHR is dismissed.

No anonymity direction is made.

Signed Date 10 February 2017

Upper Tribunal Judge King TD