(Immigration and Asylum Chamber) Appeal Number: HU/11401/2018
THE IMMIGRATION ACTS
Heard at Field House by Skype Remote Hearing
Decision & Reasons Promulgated
On 8th June 2021
On 11th August 2021
UPPER TRIBUNAL JUDGE RIMINGTON
Mr Hari Prasad Gurung
(anonymity direction not made)
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
For the Appellant: Mr R Jesurum, Counsel instructed by Everest Law Solicitors
For the Respondent: Ms A Everett, Home Office Presenting Officer
DECISION AND REASONS
The appellant is an adult dependent son of Mr Ram Prasad Gurung, a retired Gurkha soldier, and he appealed against a decision of First-tier Tribunal Judge Colvin, who in a decision promulgated on 7th August 2019 dismissed the appeal of the appellant. That decision was found to contain errors of law and the decision was set aside in its entirety.
There was contention before Upper Tribunal Judge Gill who set aside the decision as to whether this matter should be remitted back to the First-tier Tribunal because the appellant's representative submitted that it was necessary for the Tribunal to disentangle lies from truth, not least that the sponsors admitted that they had lied to the effect that the appellant had never worked in Nepal. However, Upper Tribunal Judge Gill did not find that the case was sufficiently complex and adjourned the matter for a resumed hearing before the Upper Tribunal.
It was accepted that the appellant's father served in the British Army for thirteen years prior to his retirement in 1972. He was issued with entry clearance in December 2009 and settled in the United Kingdom on 16th September 2010 and joined by his wife in May 2011. The respondent accepted that the appellant was under the age of 18 at the time of his father's discharge from the army such that an application for settlement may have been made prior to 2009 had the option been available to him.
It was accepted by Mr Jesurum before Upper Tribunal Judge Gill that the appellant could not satisfy all the requirements of the Home Office policy set out in Annex K of "Adult Children of Former Gurkhas" policy dated 22nd January 2015 and the appeal was therefore only under Article 8.
This was the appellant's second application for entry clearance in order to settle with his parents. His first application was refused in August 2015 but evidently dismissed in February 2017 because the First-tier Tribunal Judge did not accept the appellant enjoyed family life with the sponsors or that he was financially dependent upon them. Subsequently however, Jitendra Rai v Entry Clearance Officer, New Delhi  EWCA Civ 320 was promulgated.
In the instant appeal the parents admitted that they had told an untruth in their witness statements filed before the First-tier Tribunal such that the appellant had never worked in Nepal (paragraph 27 of the judge's decision). That paragraph also recorded the apology of the parents, who explained they were advised not to refer to the appellant's work if he were to be successful in his visa application.
Upper Tribunal Judge Gill reasoned that the First-tier Tribunal Judge's finding that the appellant had not shown that he was financially reliant upon his parents was largely based on the fact that the judge had no evidence that showed he had made any efforts to obtain employment but the question the judge should have considered was whether there was a de facto dependence and not whether financial dependence was necessary. In effect, the judge was concerned not with the credibility of the appellant's claim that he was financially dependent upon the sponsor but whether it was necessary for him to be dependent on the sponsors. Rai significantly changed the approach to be undertaken in the assessment of family life in applications relying on Article 8 by adult dependent children of Gurkha servicemen and thus the reliance on Devaseelan guidance was misplaced when assessing family life. First-tier Tribunal Judge Colvin had relied on the previous findings of Judge Herlihy. The judge should have independently considered family life and if the judge found that the appellant enjoyed family life she should have considered proportionality.
Written submissions were made on behalf of the appellant for the rehearing before me and it was acknowledged that the dispute appeared to be whether the facts demonstrated the engagement of Article 8(1).
Those written submissions set out the following. The questions were first, whether there was support between the appellant and his mother which was real or effective or committed, Rai at paragraph 36 and secondly, whether the appellant's conduct in this case was sufficient to outweigh the historic injustice and justify refusal.
Article 8 family life between adults requires "something more exists than normal emotional ties" as per Kugathas v Secretary of State for the Home Department  EWCA Civ 31. Relevant factors included who were the near relatives and the nature of links and where and with whom the appellant had resided in the past and forms of contact (paragraph 24 of Kugathas). A degree of emotional dependence was required as per R (Gurung)  EWCA Civ 8 (paragraph 50). Voluntary separation did not end family life as cited in Ghising  UKUT 00160 (IAC) at paragraph 50 and nor did the attainment of majority end family life (Etti-Adegbola v Secretary of State for the Home Department  EWCA Civ 1319 (paragraph 23)). Continued presence in the family home and the fact that a dependent child had not established a family of their own were relevant factors under AA v United Kingdom  Imm AR 1 at paragraph 49, which was approved in R (Gurung) at paragraph 46. At paragraphs 36 to 37 Lindblom LJ found that "dependence" means "real support", "effective support" or "committed support".
Family life could exist without dependency, Patel and Others v Entry Clearance Officer (Mumbai)  EWCA Civ 17. At paragraph 14 of Patel Sedley LJ found that "what may constitute an extant family life falls well short of what constitutes dependency".
A compelling case was not required because the Rules did not provide for all forms of family life between adults and nor did they address the injustice. The terms of the policy did not indicate where the balance of proportionality should be struck. The policy is not an Immigration Rule, and the approach taken to proportionality in R (Gurung) at 43 was rejected by the Court of Appeal. The two year separation requirement of the policy arguably ignored the chronology of the injustice which in turn frustrated the policy's stated purposes. The policy required dependence, which test was higher than that of support. Article 8 did not require as the policy did emotional and financial dependence. Finally, the policy acknowledged at paragraph 27 that even when its terms were not met it would be necessary to take account of the principles in R (Gurung) and Ghising.
It was accepted that the previous decision concerning the appellant was the starting point but Devaseelan v SSHD  UKIAT 00702 did no more than provide guidance and was subject to the overriding principle that there was a fundamental obligation to decide each new application on its individual merits.
It was submitted that the sponsor father did not know that his son was working from the date the family left until 2016 and that the appellant lived with his father until departure. The appellant's bank statements showed a correspondent cessation of salary deposits and the appellant continues to live in the family home. The sponsor father supported and continues to support the appellant financially by paying money to him from his army pension, by sending money through informal means and through remittances. The appellant is in daily contact with his parents and the emotional impact of separation and of contact was described by the witnesses. The appellant's parents have returned regularly to Nepal to be with the appellant (as per the passports) and staggered their departures in order to spend longer with him and do not stay longer owing to their fear of losing their benefits.
The strength of the emotional bond was corroborated by the evidence of Surya Bahadur Gurung, who served alongside the sponsor and is now his neighbour. He confirmed that he talks to the sponsor on a regular basis and described his helplessness and not having his son with him. He had witnessed the calls and their effect on the sponsor and had witnessed the reunion of the appellant with his mother in Nepal.
His evidence was further confirmed by Jas Kumari Gurung, who confirmed that she saw the appellant's mother daily and had witnessed her talking to the appellant and confirmed that the mother talks to the appellant in the morning and the evening and appears very anxious if she has not spoken to him and was often in tears after the call. This evidence should be seen in the light of the cultural practice of Nepal and it was submitted that family life existed prior to departure and that family life had been preserved through travel to Nepal, albeit this was restricted by financial constraints.
The fact that the appellant does not need to rely on his parents and the support is voluntary would be irrelevant to whether family life were protected by Article 8. Individual choice is protected and even where such choice may be controversial and reciprocal reliance was relevant in that parents may come to rely on their children.
In terms of proportionality in a historic injustice case Section 117A will not assist the respondent where Article 8 is engaged, as per Rai at paragraphs 55 to 57.
The observation in Gurung at paragraph 38 is that the historic injustice is one factor to be weighed against the immigration control. It is the fact of injustice which provided "such a strong" argument for the "vindication" of Article 8 rights. Unless the respondent relies on something more than the ordinary interests of immigration control the historic injustice will normally require a decision in the appellant's favour.
In relation to the appellant's own dishonesty in concealing evidence, this is not classified as being serious enough to warrant an altered result because first, although criminality or bad immigration history as per Ghising paragraph 60 "may" outweigh powerful factors on the appellant's side and although the appellant's conduct constituted "bad" immigration history, and it was certainly poor, this was conduct towards the lower end of the spectrum. Secondly, in the case of Gurkha veterans themselves, it was only in cases where there was "adverse information of a serious nature" that cases would be refused. Thirdly, there are further matters specific to the case which weighed on the appellant's side, (1) the sponsor served for the Crown well in excess of four years necessary to achieve settlement, he served in conflict, he had to way 37 years for the injustice to be corrected and the family suffered financially as a consequence of the injustice.
Ms Everett indicated that family life remained in dispute but the reliance on that was largely based on previous deception maintained to the Secretary of State and that casts doubt on the reliability of the evidence. She submitted it was very difficult to get a clear picture.
At the hearing both the sponsor Mr Ram Prasad Gurung, and his wife Mrs AS Kumari Gurung, attended to give oral testimony together with Ms Surya Bahadur Gurung, Jaskumari Gurung and Major Udaibahadur Gurung MBE. The witnesses adopted their statements and tendered themselves for cross examination.
The sponsor adopted his witness statement of 3rd December 2020 and 8th February 2019 and confirmed that he started sending money to his son from the date he came to the UK when he started to get benefits, which was after five or six months. He also stated that since September 2010 his son could have access to his army pension fund of 25,000 per month and he stated that this continued throughout the time he had been in the United Kingdom, and he was still doing so.
The sponsor's wife and appellant's mother attended and gave oral testimony and adopted her statement. She told the court that she did not know exactly when her son had told her that he had worked in Nepal but then she found out her son had worked when she attended the Tribunal in April 2019. She came to the UK in 2011 and at first, she would buy calling cards to contact her son but now she used Viber. She confirmed under cross examination that she spoke to her son very often. She stated that she thought her son did not tell her he was working because the money he received was insufficient. She stated that she did not know what he was doing all day and he would just go out of the house in casual clothes and come home at around 4 to 6 pm. They were both busy and did not discuss it. She was asked if she was so close to him how did she not know he was working. Neither she asked nor he informed her about it.
Major Gurung attended and adopted his statement and Surya Gurung and Jaskumari Gurung (friends) also attended the hearing and adopted their statements.
Ms Everett relied on the two decisions. The challenge to family life was maintained. The evidence has demonstrated even further that there is no family life, there was no cultural relativist evidence it would be common to not know what their son was doing, and it was inconceivable that they did not know he was working. She submitted that perhaps the lie perpetrated by the appellant and maintained to the tribunal was something that his parents were aware of. Normally if family life were found because of the historic injustice that was the end of the matter but in this case, there was weight to be afforded to public interest because of the deception and the balance in relation to proportionality should go against appellant.
Mr Jesurum made oral submissions that the appellant had lied in his first application and to the Entry Clearance Officer in second application and in his statement to the Tribunal. It was only at the door of the court on the day of the hearing that the matter was revealed. The case was about the sponsor as well as the appellant. The sponsor was of good character and was discharged from the army with an exemplary record and his character and integrity were vouched for. If the support is real or committed it came within article 8(1) even if the family member may be lying and undeserving. The cultural importance of family was high in Gurkha families. Mr Jesurum pointed to the daily contact between the mother and the son which included video calls. Mrs Jaskumari had witnessed the effect of contact and gave evidence to that effect.
As to the deception, taken within the spectrum of immigration offending it was not at the highest end and whether it could be characterised as bad deserved subjective evaluation. The approach to Gurkha cases was compensatory and the family life of both appellant and sponsor was implicated. The penalties for attempting to obtain leave by deception were set out by Section 24A of the Immigration Act 1971 and a person guilty of an offence under this section is liable (a) on summary conviction, to imprisonment for a term not exceeding six months or to a fine not exceeding the statutory maximum, or to both; or (b) on conviction on indictment, to imprisonment for a term not exceeding two years or to a fine, or to both.
The starting point is the decision of First-tier Tribunal Judge Herlihy of February 2017 further to Devaseelan v SSHD  UKIAT 00702. That decision was made on 15th February 2017 and recorded the evidence of the sponsor that he had visited Nepal three times since coming to the UK at that time and had moved permanently from Nepal on 16th September 2010. He stated he paid for his son's rent and gave his son 25,000 rupees per annum. He also stated he had given the family home to the eldest son.
At paragraph 4.6 of Judge Herlihy's decision, the sponsor was recorded as saying that since his son had left school, he had never had a job and he confirmed that he had not in oral evidence. The sponsor's wife also at that hearing stated that her son had not had any job in Nepal although he had done some farming on the family farm, which is now owned by the eldest son. "She confirmed he had done nothing since 2011." I note that Judge Herlihy did find that there was evidence of limited financial support by the sponsor to the appellant but it was found to be "relatively recent". Judge Herlihy, however, found no family life, albeit that the appellant was 26 at the age of the application and remained unmarried. She was not satisfied he was financially and emotionally dependent on the sponsor. Judge Herlihy did not believe that the appellant had never worked. As it transpires, she was correct. Subsequent to that decision, however, has been the authority of Rai, which is cited at length above.
There was now evidence before the Tribunal and since the decision of Judge Herlihy that the appellant had in fact been appointed as a laboratory assistant on 22nd February 2010 by the Manipal Teaching Hospital. The father settled in the UK on 16th September 2010 and the mother joined him on 12th May 2011.
It would appear that, as cited by Judge Herlihy, the sponsor's eldest son and younger daughter were the first to get married and become independent and another son, Ramesh, also married. The further evidence before this Tribunal shows that the appellant obtained a Nepal Health Professional Council registration certificate and registered as a "Lab Assistant of Third Level" on 2nd March 2009. Indeed, the appellant was appointed as a laboratory assistant by the Manipal Teaching Hospital. The appellant was also recorded as a student of the Pokhara Technical Training and Research Centre in 2007 (prior to the departure of the parents). The appellant earned 9,779 rupees per month at the Manipal Teaching Hospital, but his employment ended in July 2016.
In his witness statement dated 3rd December 2020 at paragraphs 4 and 5, the sponsor stated that the appellant was, after 2005 "studying in some training centre while living in Pokhara. I forgot what he told me about the name of the institute and what course he was doing."
At paragraph 5 the sponsor states that in 2009 their area in Nepal became unsafe for living and he and his wife moved to Pokhara with the appellant. He added:
"He [the appellant] would then leave the house in the same clothes that he wore at home. He would leave sometimes at 9, sometimes and 10 (sic) and sometimes even later. ? He never wore any uniform or smart clothes. I did not check with him where was going as long as there was no news of trouble. ?",
and at paragraph 9:
"From time to time, I would scold him and remind him that he needs to find work and start to earn on his own. Since, in our culture, we do not talk back to elders, I did not expect Hari to talk back. I forgive him for not telling me about his secret employment."
"I did not know my son was working",
and at paragraph 12, "when I found out that Hari was previous employed, I was surprised. I was upset at Hari for not telling me that. I asked him why he would hide that information".
Albeit the decision of Judge Colvin was set aside, and I place no reliance on any findings, there is a record of the oral evidence-in-chief given by the sponsor as follows:
"He said that he made the previous statement about his son not working after he was advised that his son would not get a visa if he mentioned about working. He can say now that he made a mistake as he knew that it was not true at the time. It was when he was at the Tribunal on the last occasion he realised about his son working."
That appears to demonstrate that the sponsor despite his integrity is willing to mislead the court.
Indeed, Upper Tribunal Judge Gill in her decision dated 27th February 2020 made the following observation:
"6. In the instant appeal, the sponsors admitted that they had told an untruth in their witness statements filed in the appeal before the judge when they said that the appellant had never worked in Nepal (para 27 of the judge's decision). Para 27 of the judge's decision records that they were apologetic and explained that they were advised not to refer to the appellant's work if he was to be successful in gaining a visa."
Additionally, I find the sponsor's statement of 3rd December 2020 is surprising. I do not accept that the sponsor would not know the appellant was working they were that close and lived together (particularly as he had known his son had attended college) and I note that the appellant secured employment prior to the sponsor and his wife leaving Nepal. Not least, they confirmed that they had their meals together at home (paragraph 8 of the December 2020 statement). I am asked to accept that there is a very close emotional relationship and indeed there was a continuing and close relationship to this day. I simply do not believe that the sponsor and his wife did not know their son was employed or as the wife stated in her oral evidence that they were very close, but she did not know where he was going. The sponsor gave evidence to the effect that children in their culture and family were obedient and responsive to their parents.
In his witness statement of 23rd March 2019 at paragraph 6 the appellant states when he was in Nepal,
"I used to give them company in Nepal. We used to talk with each other all the time. I would used to read newspaper to my dad, I used to help mother in cooking and tidying up the house. I used to go out with them for general walk around the neighbourhood. We spent all our time together".
I also note that the appellant also stated in his witness statement of 23rd March 2019 that his parents could not afford to send him to college and that at paragraph 12:
"I have not been able to find any work in Nepal due to my history and education. I have been receiving money from my father. Without this support, I will not be able to survive."
In his second statement of 3rd December 2020 the appellant accepted that he had lied and that he had worked for the Manipal Teaching Hospital as a lab assistant and since then he had been unemployed. The job with Manipal Hospital was terminated on 15th July 2016.
Bearing in mind the guidance from Rai identified above, the essential points are that the appellant is a 32 year old unmarried man and has been living in rented property in Pokhara since his father came to the UK.
On careful examination of the bank statements it would appear that the sponsor transferred to the appellant's Standard Chartered account 25,000 Nepalese rupees twice in 2014, eleven times in 2015, twelve times in 2016, twelve times in 2017, twelve times in 2018, ten times in 2019 until one payment transfer on 1st January 2020. In his oral testimony the sponsor stated that the appellant could access the army pension in the sum of 25,000 rupees per month. It would appear from the Standard Chartered bank statements of the sponsor and his wife that in 2020 to September, nine transfers of 25,000 rupees were made to the appellant. The sponsor stated that he topped up this amount with approximately 6,000 to 7,000 rupees per month via transfers. The remittance slips showed that there are transfers of approximately 6,600 Nepalese rupees from October 2019 through to October 2020.
The staff salary credited to the appellant's account from 2014 (those were the only accounts available) appeared to be approximately 16,000 to 17,000 rupees per month. His letter of appointment dated 22nd February 2010 indicated an initial monthly salary of only Rs 9779.
I do not accept the appellant's or sponsor's written or oral evidence on this, but I do accept the documentary proof that there has been longstanding support of the appellant which is in excess of his salary (even at the increased level), and which leads me to conclude that indeed his parents were supporting him financially whilst they lived in the UK, Fand he lived in Nepal. Bearing in mind the sponsor is retired and claiming pension credit, I find it unlikely he would make payments which are well in excess of the son's salary to the sum of approximately 7,000 rupees if it was not necessary.
The question said to be pertinent in Rai is whether family life existed when the sponsor departed from Nepal and whether it endured. I find that both requirements are fulfilled. As held in Rai at paragraph 42
'the fact that he and his parents would have applied at the same time for leave to enter the United Kingdom and would have come to the United Kingdom together as a family unit had they been able to afford to do so, do not appear to have been grappled with by the Upper Tribunal judge under article 8(1). In my view they should have been. They went to the heart of the matter: the question of whether, even though the appellant's parents had chosen to leave Nepal to settle in the United Kingdom when they did, his family life with them subsisted then, and was still subsisting at the time of the Upper Tribunal's decision. This was the critical question under article 8(1)'.
I accept that they were living together prior to the sponsor's and mother's departure (not least because it is unlikely the mother would remain alone). I find that the relationship has endured because I place reliance on the witness statements of Major Udai Bahadur Gurung, Mr Surya Bahadur Gurung and Mrs Jas Kumari Gurung that there is a close emotional attachment between the appellant and sponsors, and they are in frequent contact. There was nothing to suggest that these witnesses would tell anything other than the truth and the Major has a distinguished career. I also note that the sponsor has visited Nepal but no doubt the limited occasions on which he has visited Nepal, that is the three times up until 2017, is due to the financial restrictions and the parents would prefer to pay for their child's living expenses.
I therefore accept that there is real and effective and/or committed support which has continued, notwithstanding I find that the sponsor's and appellant's evidence have severe limitations.
It is clear, having found family life, that the threshold of engagement is a low one further to AG (Eritrea) v Secretary of State for the Home Department  EWCA Civ 801. Albeit the interference is in accordance with the law for the purposes of immigration control and maintaining the rights and freedoms of other.
I turn to the question of proportionality. Section 117A and B of the Nationality, Immigration and Asylum Act 2002 do not apply as per Rai. Even after giving the policy of the Secretary of State considerable weight the failure to meet the primary terms of the policy is insufficient to outweigh the historic injustice because the policy requires the application of caselaw.
R (Gurung) at paragraphs 42 and 43 identifies the strength to be afforded to adult dependent children in Gurkha cases not least because had they been able to make applications to settle prior to the children reaching the age of majority they would have made those applications at the time.
42. ?. the crucial point is that there was an historic injustice in both cases, the consequence of which was that members of both groups were prevented from settling in the UK. That is why the historic injustice is such an important factor to be taken into account in the balancing exercise and why the applicant dependant child of a Gurkha who is settled in the UK has such a strong claim to have his article 8(1) right vindicated, notwithstanding the potency of the countervailing public interest in the maintaining of a firm immigration policy. ?'.
43. ?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 dependant 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?'.
The question is the weight to be given to the appellant's own dishonesty. Although I find that the sponsor and his wife have not been candid with the court I consider that their interests still need to be taken into account as per Beoku-Betts v SSHD  UKHL 9.
Ghising & Ors (Ghurkhas/BOCs: historic wrong; weight) (Nepal)  UKUT 56 at paragraph 60 states that criminality or a bad immigration history may outweigh the powerful factors on the Appellant's side, but they normally do not do so.
'60...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?'.
As Mr Jesurum conceded, the immigration history was a poor one, but the question is whether it is so serious as to warrant the balance to be struck in favour of the Entry Clearance Officer? I turn to the 'Gurkhas discharged before 1 July 1997 and their family members policy', which states as follows at paragraph 152 of the bundle:
"It is only where adverse information of a serious nature is received about the applicant - for example, evidence of any serious criminal activity - will the application normally be refused. In cases where there is evidence of serious criminal activity, the normal threshold should be met in order for the case to be considered for refusal of settlement. The threshold is a custodial sentence of at least 12 months if the offence was committed in the UK or, if committed outside the UK, the offence would have been punishable by a custodial sentence of at least 12 months if it had occurred within the UK. See Appendix Armed Forces suitability requirements and General grounds for refusals. If such information comes to light, you should refer the case to a senior caseworker in the normal way."
As Mr Jesurum submitted, the offence of putting in false information could be construed as an attempt to obtain leave by deception, which, under the Immigration Act 1971 Section 24A may attract a sentence of not exceeding two years. There were no sentencing guidelines on attempting to obtain leave by deception or what would be likely to lead to a sentence of imprisonment for a first offence put before me save that Section 24A reads as set out above. The appellant has not to date been charged or convicted but I can reasonably conclude from the relevant provision under the Immigration Act 1971 that a summary conviction may attract a six-month sentence and a fine or both. On the basis of the admission of the appellant so far, the prospect of a summary conviction rather than conviction on indictment is more likely. On that basis even if the offence were to attract the most serious penalty on summary conviction that sentence of six months would not warrant exclusion under the policy or be characterised as serious criminality. I make clear that the conduct is not in any way condoned but, in the circumstances, and relying on the policy as set out in the appellant's bundle, I find on balance that the conduct in this case has, only marginally, not been serious enough to strike the balance against the appellant and I therefore allow the appeal.
Notice of Decision
The appeal is allowed on human rights grounds
No anonymity direction is made.
Signed Helen Rimington Date 5th August 2021
Upper Tribunal Judge Rimington
TO THE RESPONDENT
As I have allowed the appeal and because a fee has been paid or is payable, I have considered making a fee award and have decided to make no fee award not least because of the circumstances of this matter.
Signed Helen Rimington Date 5th August 2021
Upper Tribunal Judge Rimington