Tribunal decisions

The decision

IAC-FH-NL-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: HU/06540/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 21 February 2017
On 24 March 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE I A LEWIS

Between

kumari gurung
(anonymity direction NOT MADE)
Appellant
and

ENTRY CLEARANCE OFFICER
Respondent

Representation:
For the Appellant: Nominated sponsor
For the Respondent: Mr D Clarke, Home Office Presenting Officer

DECISION AND REASONS

1. This is an appeal against the decision of First-tier Tribunal Judge Ross promulgated on 28 July 2016 dismissing the Appellant’s human rights appeal brought against the decision of the Respondent dated 18 August 2015 refusing entry clearance as the adult dependent relative of a Gurkha veteran.

2. For the avoidance of any doubt, although this case appeared in my list today as being linked to the appeal with reference HU/06573/2015, beyond the coincidence of issues and the Nepal based representatives who have assisted in drafting the appeal notices, there is no family link between these cases and in the circumstances I determine this case and the appeal in HU/06573/2015 as separate appeals, albeit on essentially similar bases.

3. The Appellant is a citizen of Nepal born on 9 August 1999 and is the daughter of Mr Krishna Bahadur Gurung whose date of birth is given as 1 January 1944. Mr Gurung and his wife, the Appellant’s mother, entered the UK on 22 March 2012 with entry clearance for the purpose of settlement. At that time there was no provision under the Rules or policy outside the Rules that would have permitted them to be accompanied by their adult daughter.

4. Following a revision of policy and practice that now finds its expression in chapter 15 of the Secretary of State’s IDIs, the Appellant applied for entry clearance for the purpose of settlement to join her parents in the United Kingdom. The Respondent refused the application for reasons set out in a Notice of Immigration Decision dated 19 August 2015. The Respondent was not satisfied that the Appellant was wholly, financially or emotionally dependent on her parents. It was also noted that she had lived apart from them for a period in excess of two years. The application was therefore refused with reference to the applicable policy under the IDIs.

5. In respect of Article 8 the decision notice says this:

“I have also taken account of Article 8 of the European Convention on Human Rights and also Gurung & Ors, R (on the application of) v Secretary of State for the Home Department [2013] EWCA Civ 8 (21 January 2013) where it was found if a Gurkha can show that, but for the historic injustice, he would have settled in the UK at a time when his dependant (now) adult child would have been able to accompany him as a dependent child under the age of 18, that is a strong reason for holding that it is proportionate to permit the adult child to join his family now. Further, I have taken account of Ghising and Others [2013] UKUT 00567 (IAC) where it was found that where 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 the Appellant’s favour where the matters relied upon by the Secretary of State or Entry Clearance Officer consists solely of the public interest in maintaining a firm immigration policy. I am satisfied that the reasons for your refusal outweigh the consideration of historical injustice. You have grown up in Nepal. Your parents chose to apply for settlement visas when you were already an adult in the full knowledge that their adult children not automatically qualify for settlement. There is no bar to your parents returning to Nepal either permanently or temporarily. You have been living in Nepal without your parents for approximately three and a half years and have been able to continue to live independently. Family life can continue as it may have done and without interference by this decision. Even if I am to accept that refusal may be an interference with private life, I am not satisfied that you have established family life with your parents over and above that between an adult child and parents. This is further evidenced by your parents’ decision to move to the UK without you. I must take into consideration how the historical injustice has affected you individually. Given the above I consider that the effect of the historical justice has not been such that you have been prevented in leading a normal life. Therefore, it does not outweigh the proportionality assessment under Article 8 and I consider that refusing this application is justified and proportionate in order to protect the rights and freedoms of others and the economic wellbeing of the country.”

6. The Appellant appealed to the IAC. She requested that her case be decided on the papers without a hearing. The First-tier Tribunal Judge dismissed the appeal for reasons set out in his Decision and Reasons.

7. The Judge, having rehearsed the history of the case at paragraph 6, made reference to the applicable policy under the Respondent’s IDIs. He quoted from paragraphs 15, 19 and 20 of that policy and I note in particular paragraph 19 which is in these terms:

“The applicant must not normally have lived apart from the Gurkha sponsor for more than two years on the date of application or at any time, unless the family unit was maintained albeit the applicant lived away, for example time spent at boarding school, college or university as part of their full-time education where the applicant lived at university or college during term time but resided in the family home during holidays. If these conditions are not met the application must be refused under this policy on this basis.”

8. The Judge then gave consideration to the particular circumstances of the Appellant and said this at paragraph 7:

“I am satisfied from the material provided with the appeal that the Appellant remains financially and emotionally dependent upon her father. Further, the appellant is not living independently and continues to be maintained in her father’s house.”

That finding runs contrary to the first of the two bases of the Respondent’s refusal under the policy.

9. The Judge continued, however, and at paragraph 7 said this:

“however, it is accepted that the Sponsor father left Nepal in 2012 and that the Appellant’s settlement application was made more than two years after then, in 2015”.

10. The Judge at paragraph 8 considered the circumstances against the terms of the policy and determined that because more than two years had passed since the Appellant’s parents’ departure for the UK that the Appellant did not meet the terms of paragraph 19.

11. At paragraph 9 of the decision the Judge concluded: “I find that the ECO’s decision was in accordance with the published policy”. The Judge went on to state at paragraph 11 that the policy “encompasses Article 8 considerations” without giving any further consideration to Article 8.

12. The Appellant sought permission to appeal which was granted by First-tier Tribunal Judge Hollingworth on 5 January 2017 for the following reasons - which helpfully encapsulate the essence of the Appellant’s challenge:

“It is arguable that in light of the factors put forward in the permission application taking into account the findings made by the Judge that a different construction could be placed upon the wording at paragraph 19 as quoted at paragraph 6 of the decision in terms of the applicant not normally having lived apart from the Gurkha sponsor for more than two years on the date of the application. It is further arguable in the light of the factors put forward in the permission application, that notwithstanding the scope of the construction of the provision of the policy regarding not normally having lived apart for more than two years on the date of the application, that circumstances existed justifying a consideration of whether there would be a breach of Article 8.”

13. Thus the matter comes before me today.

14. I am grateful to Mr Clarke for his helpful and realistic approach to this appeal. He readily conceded that there was indeed an error of law on the part of the First-tier Tribunal. He also did not resist the suggestion that the case did not require to be remitted to the First-tier Tribunal but could be retained in the Upper Tribunal and the decision in the appeal remade consequent to the error of law, bearing in mind in particular that the matter had been dealt with ‘on the papers’ before the First-tier Tribunal. So far as the substance and merits are concerned, whilst Mr Clarke expressly did not concede the appeal equally he offered no particular resistance to it either.

15. In all such circumstances I am satisfied that the decision of the First-tier Tribunal is vitiated for error of law. In particular, in my judgement the First-tier Tribunal Judge failed to appreciate the discretionary nature of the policy which was such that there might be circumstances which warranted a grant of leave even if they did not fall within the express terms of the policy; moreover, in that context and generally, the Judge was wrong to conclude that the strict application of the policy was an adequate encompassing of all Article 8 considerations.

16. In this context it is to be noted in particular that the Appellant emphasised a number of features in her grounds to the First-tier Tribunal pointing in the direction of an approach that would strike a different proportionality balance and going to the question of whether or not, even pursuant to an application of paragraph 19, it might be said that the words ‘must not normally have lived apart’ should be read in such a way as to accord a favourable outcome to the Appellant. The Appellant had emphasised that her parents had gone to the United Kingdom under a 2009 discretion which excluded her, and that the IDIs upon which she had now sought to rely for her own application had not been available to her at that earlier time. Further, she had been under 18 when her father was discharged from the army and that the real intention of the family was to settle in the UK as a family unit. She also emphasised that daughters in Nepal traditionally lived with their family until marriage and that there was a continuing and close contact with her family since they had moved to the UK including annual visits of three months to Nepal where, as the Judge found, the Appellant continued to live in the family home. It seems to me in those circumstances Mr Clarke was right to concede the appeal in respect of ‘error of law’ on the basis that the Judge should have gone on to consider a freestanding application of Article 8: it was not sufficient to conclude that the policy encompassed all Article 8 considerations.

17. The error of law is such that the decision of the First-tier Tribunal requires to be set aside; consequently the decision in the appeal requires to be remade.

18. Pursuant to the principles set out in Gurung and Ghising, as quoted in the Entry Clearance Officer’s decision, if it be the case that family life exists, and if I am satisfied that but for the historic injustice the family would have settled in the UK previously, and if there are no other countervailing factors, then the appeal should be allowed.

19. On the findings of the First-tier Tribunal Judge - which notwithstanding his error of law may be preserved, and are not in any event now contested by the Respondent - there was financial and emotional dependency including lengthy annual visits such that I am satisfied Article 8 family life was engaged.

20 I am also satisfied that the Appellant but for the historic injustice would have come to the United Kingdom with her parents at a much earlier point in time. In this regard I note that under the IDIs, Annex K at paragraph 17 on the question of settlement, it is to be generally considered sufficient that an applicant assert this, and I find that this indeed is in substance asserted in this case.

21. Mr Clarke acknowledged that no countervailing factors were identifiable and accordingly, in those circumstances, it seems to me that the principles in Gurung and Ghising point only in one direction on the facts of this particular case: the Appellant’s exclusion from entry to the UK to be reunited with her parents is disproportionate in all the circumstances.

22. Accordingly, I remake the decision by allowing the appeal on human rights grounds.

Notice of Decision

23. The decision of the First-tier Tribunal contained a material error of law and is set aside. I remake the decision in the appeal.

24. The appeal is allowed.

25. No anonymity direction is sought or made.

The above represents a corrected transcript of an ex tempore decision given at the conclusion of the hearing.

Signed: Date: 23 March 2017

Deputy Upper Tribunal Judge I A Lewis

TO THE RESPONDENT
FEE AWARD

The Appellant paid a fee and in all of the circumstances I make a fee award in the Appellant’s favour to the full amount.

Signed: Date: 23 March 2017

First-tier Tribunal Judge I A Lewis