Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: HU/11939/2015
HU/11940/2015
HU/11941/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision promulgated
on 24 February 2017
on 30 March 2017

Before

UPPER TRIBUNAL JUDGE HANSON

Between

HEMA BANGSHI
MADHAVI BANGS
BHANU BANSHI
(anonymity direction not made)
Appellant
and

AN ENTRY CLEARANCE OFFICER – NEW DELHI
Respondent

Representation:
For the Appellant: Mr M Pvar instructed by N. C. Brothers & Co-Solicitors
For the Respondent: Miss Isherwood Senior Home Office Presenting Officer

DECISION AND REASONS

1. This is an appeal against a decision of First-tier Tribunal Judge Suffield-Thomson ('the Judge') promulgated on 31 August 2016 in which the appeals of these siblings, all adults, against the refusal by the respondent to grant entry clearance to permit them to settle in the UK as the adult dependent relatives of their mother, the widow of a former Gurkha soldier, were refused.
2. The first appellant, a female, was born on the 12 November 1987 and is a citizen of Nepal. The second appellant, also female, was born on 4 November 1992 and is also an adult citizen of Nepal. The third appellant, a male, was born on 28 September 1990 and is a citizen of Nepal too.
3. The appellants’ father was a serving soldier in the Gurkha Regiment of the British Army who was discharged approximately 36 years ago and who died in 2006.
4. The appellants’ mother, the widow of a Former Gurkha, has been granted leave to enter the United Kingdom followed by applications by the appellants’ for leave to enter as the dependent relatives of their mother. The Judge notes that at the time of the applications the appellants were 27, 25 and 22 years of age. The Judge found the appellants are living in Nepal and have been well educated, are fit and healthy, and have each other for emotional support. The evidence of their mother, their sponsor, is that they are a very close family.
5. The Judge noted that there was no provision for adult dependants of this nature under the Immigration Rules that the appellants were able to satisfy [18 – 20] making the issue in relation to which the appeal was to be determined that of Article 8 ECHR.
6. The decision, on initial reading, appears somewhat contradictory in places. In [21] the Judge finds that he has to consider whether there are “exceptional circumstances” in the case to enable him to consider the appeal outside the Rules by reference to Article 8 ECHR. The position, recently confirmed by the Supreme Court, is that this tribunal is a tribunal whose jurisdiction is a human rights jurisdiction meaning that it is not appropriate to limit consideration solely to the provisions of the Immigration Rules. There may be cases where a freestanding consideration under Article 8 adds nothing to the merits of the case but a judge is required to make it clear that such an assessment has been undertaken, even if only the briefest of reasons are required for why the decision is proportionate. No arguable legal error arises, however, as the Judge found it was appropriate in the circumstances of this case to consider Article 8 and the five-stage test set out in the case of Razgar.
7. In [23] the Judge finds "The Appellant has lived in the UK for a short time but before that she lived with the three Appellants in Nepal and I find that they are a family.” Issues arise from this statement being firstly that the appellant does not live in the UK as it is the sponsor who lives in the UK as the appellants live in Nepal. The second point is that the Judge finds they are a family but does not make a finding that what exists between the adults is family life recognised by Article 8. There is a permissible distinction between family life per se and that recognised by Article 8. It may be arguable that any error in this respect is not material for even if the parties do not form part of each other’s family life they will form part of their respective private lives in relation to which the proportionality test is the same.
8. At [24] the Judge finds that there will be some interference in the family life of the appellants which attains the minimum level of severity to engage the operation of the Convention as the interference will result in grave consequences in that the family will be separated.
9. The Judge finds that any interference will be in accordance with the law and necessary in a democratic society leading to the issue in the appeal being that of the proportionality of the decision.
10. At [30] the Judge states “I have found that the Article 8 rights of the appellants are engaged” but fails to define on what basis.
11. The Judge mentions the cases of Gurung [2013] EWCA Civ 8 and Gishing and others [2013]UKUT 567 [31 – 33].
12. The Judge then continues:

34. In these appeals the Appellants were at the time of the application 27, 25 and 22 years old so their mother waited some considerable time before she came to the UK. The Appellants are living in Nepal and have been well educated. They are all fit and healthy and have each other for emotional support. The Sponsor states that they are a very close family and yet she left her three adult children to move to the UK not knowing that they would ever be granted leave to follow her.

35. In the case of Morkani v France [2003] 40 EHRR 123 it was stated:

“Relationships between adults do not necessarily benefit from protection under Article 8 of the Convention unless the existence of additional elements of dependence other than normal emotional ties can be proved”

and in the case of (India) and others v ECO [2009] EWCA Civ 234 the court stated:

“There must be elements of dependency going beyond the normal emotional ties”

36. I have nothing before me to suggest that there is anything in the relationships between the Appellants and their mother that goes beyond what is normal between adult children and their parents. The Appellants here state that their mother supports them financially but the case of AAO v ECO [2011] EWCA Civ 840 makes it clear that financial dependency was not in itself sufficient to create a strong family bond under Article 8.

37. I have taken into account how the historical injustice may have affected the Appellants individually but I find that the effect of this has not been such that the Appellants have been prevented from leading a normal life.

38. There is nothing before me to show that these three Appellants have established a family life with their mother that is over and above that between an adult child and a parent.

39. I accept that if the Appellants appeals are not allowed then they will continue to live in another country from their mother, but their mother knew that when she made the choice to come to the UK. They can keep in touch by modern means of communication. The mother says she uses calling cards but finds it too hard to use Skype or Face Time but I find that she could be assisted to use these things if she really wanted to. The Appellants can apply for visit visas to come and see her and she can visit them if she wishes to do so.

40. Looking at the test approved by Sedley LJ, “what must be shown is more than mere hardship or a mere difficulty or mere obstacle. There is a seriousness test which requires the obstacles or difficulties to go beyond matters of choice or inconvenience.” I do not find that there is more than mere hardship in this appeal.

41. I find that the refusal of the Appellants applications from the UK will interfere in the continuance of their family life but I do not underestimate the importance of the State’s legitimate aim to control Immigration and in these cases I find that the balance comes down in favour of the State’s legitimate aim to control immigration and to protect the economic welfare of the UK.

13. The appellants sought permission to appeal to the Upper Tribunal which was granted by First-tier Tribunal Judge Kelly on the basis it was arguable that the Tribunal erred in its consideration of the appeals under Article 8 of the 1950 European Convention for the Protection of Human Rights and Fundamental Freedoms by failing to consider the possibility that there was ‘family life’ between the adult appellants and their mother due to the fact that they were (a) financially dependent upon her, and (B) living together in the same household at the date of the refusal of the application (paragraphs 6 to 8).

Grounds and submissions

14. The Grounds referred to by Judge Kelly assert:

6. At paragraph 21 of the Decision and Reasons, the Judge concludes that there are exceptional circumstances so as to permit consideration of Article 8 ‘outside the Rules’, and that the Appellant’s mother is financially supporting the Appellants. At paragraph 30 the judge properly states that Article 8 is engaged. The judge goes on to consider Gurung [2013] EWCA Civ 8 and Ghising [2013] UKUT 567(IAC) and considers that the ‘historical injustice’ is a relevant factor that might weigh in favour of the Appellants.

7. From paragraph 34 to 38, the judge considers the Article 8 proportionality balance and concluded that ‘there is nothing before me to show that these three Appellants have established a family life with their mother that is over and above that between an adult child and parent’. In this, the Judges failed to apply a proper weight to the finding that they were financially supported by their mother.

8. The Judge also failed to have regard or apply any weight to the fact that at the time of the Appellant’s application and decisions, the Appellants were actually living with their mother in a single family unit in Nepal, and thus the relations between the Appellants and their mother were significantly closer than between adult children generally and their parent.

15. In his submissions to the Upper Tribunal Mr Pvar stated the Judge had erred in law. It was submitted the Judge failed to consider the importance of the judgement in Ghising No.2 in 2013. It was accepted this did not state that the issues relied upon by the Applicants were determinative but that the historic injustice argument should have been properly considered. This is what Ghising directed the Tribunal to do. It was accepted the Judge appears to have recognised the principal but it was argued that the Judge had conflated the question of whether Article 8 is engaged and other rights recognise where Article 8 existed.
16. The proportionality of the decision should have been considered on the basis of the evidence received and the inability of a Gurkha to settle in the UK on discharge even though the appellants were not born in the UK when their father had retired.
17. It was submitted that if family life recognised by Article 8 was found to exist the only finding available to the Upper Tribunal is that the Judge materially erred in law to the extent that the decision should be remade and the appeal allowed.
18. It was submitted that the fact the Gurkha had passed away in the interim is not relevant as if a Gurkha is alive he can bring his family to join him in the UK. Ghishing No.2 found that if a Gurkha is alive discretion should be exercised in favour of adult dependent children in the absence of countervailing factors. In this appeal the appellants father died in 2006 before the changes came into effect in 2009.
19. On behalf of the Secretary of State it was submitted that at paragraph 23 the Judge accepted there was a family but not family life recognised Article 8. The Judge was asked to consider the merits on the basis of the evidence contained in the papers rather than having the benefit of legal representation and the type of submissions that have been advanced at the error of law hearing. The Secretary of State rejects the appellants’ submission that injustice arises as a result of the appellant’s mother, the Gurkha widows, decision to come to the UK.
20. Miss Isherwood also submitted the grounds failed to acknowledge the new appeal provisions which are restricted and do not explain how the Gurkha policy applies to the appellants’ circumstances. It is submitted the historic injustice argument is not a trump card and on the basis of the evidence before the Judge it has not been made out that any legal error material to the decision has been established.
21. The Judge accepted the issue as the proportionality of the decision but did not accept the appellants’ fell within the published policy and found the decision to be propionate.

Discussion

22. The position of family members of those who served in the British Army in the Gurkha regiments has been the subject of a number of cases decided by both the Upper Tribunal and Court of Appeal.
23. It is not disputed as a general statement of law that adult children may be able to show family life recognised by Article 8 if they are dependent on their parents. In the oft quoted case of Kugathas v the 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 the normal emotional ties between a mother and an adult son would not, without more, be enough. This decision established the requirement for a fact sensitive approach. In relation to the self-direction contained in the decision by the Judge, regarding the question of whether family life recognised by Article 8 exists, reference to the need to show more than normal emotional times has not been shown to amount to arguable legal error.
24. In relation to adult children or other qualifying relatives of a Gurkha soldier, it is necessary to consider the question by reference to the decided case law summarised in Ghishing (family life – adults – Gurkha policy) [2012] UKUT 160 (IAC) and Singh [2015] EWCA Civ 630. An analysis of the position establishes that there is no legal or factual presumption as to the existence or absence of family life for the purposes of Article 8 nor is 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 when 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.
25. In PT (Sri Lanka) versus Entry Clearance Officer (Chennai) [2016] EWCA Civ 612 the Court of Appeal held that it was proportionate to refuse entry to a young adult with a family life when the claimant had been able to make the transition to independent living, notwithstanding a degree of financial dependence. There was no evidence of any special impact from his separation from his mother and sisters and the rest of the family had chosen to move to UK, and were not facing persecution in Sri Lanka.
26. It is also important to remember the purpose behind the policies relating to overage Gurkha children. In Gurung v SSHD [2012] EWHC 1629 it was held that the true underlying purpose of the policy concerning Gurkhas was not to make it easier for adult dependants of former Gurkhas to settle in the UK and accordingly, the application challenging the rationality of that policy had to be dismissed. This Tribunal finds that the purpose of the policy is to keep families together and to prevent separation as a result of the historic injustice applicable to former members of the Gurkha Regiment.
27. In relation to the historic wrong argument, in R(on the application of Sharmilla Gurung and others) v SSHD [2013] EWCA Civ 8 it was held that the historic injustice suffered by Gurkhas was only one factor to be weighed against immigration control under Article 8. It was not necessarily determinative. The fact that the right to settle enjoyed by Gurkhas was less secure than that enjoyed by the BOCs was a relevant factor but although the weight to be given to the historic injustice to Gurkhas was not as strong as that given to BOCs, it was not correct to state that the weight to be given was generally substantially less in the Gurkha cases. If a Gurkha could show that, but for the historic injustice, he would have settled in the UK at a time when his dependent (now) adult child would have been able to accompany him as a dependent minor child, that was a strong reason for holding that it was disproportionate to permit the adult child to join his family now.
28. In Patel, Modha and Odedara v ECO (Mumbai) (2010) EWCA Civ 17 the Court of Appeal recognised that one could set out to compensate for a historical wrong, but one could not reverse the passage of time. Where children had grown up and embarked on lives of their own, the bonds which constituted family life would no longer be there and Article 8 would have no purchase. However, what might constitute an extant family life fell well short of what constituted dependency. Many adult children might still have a family life with parents settled in the UK, not by leave or by force of circumstance, but by long delayed right. That was what gave the historical wrong a potential relevance to Article 8 claims. That did not make the ECHR a mechanism for turning back the clock, but it did make the historical wrong potentially relevant to the application of Article 8(2). If, by the time the adult children sought entry they were no longer part of the family life of the BOC who had finally secured citizenship in the UK, the threshold of Article 8 would not be crossed and the proportionality of excluding them would not be an issue. If they came within the protection of Article 8(1) however, the balance of factors determining proportionality for the purposes of Article 8(2) would be influenced by the historical wrong, perhaps decisively.
29. In Ghising and others (Ghurkhas/BOCs: historic wrong; weight) [2013] UKUT 00567 (IAC) 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.
30. In relation to the policy published by the respondent in the IDI, Chapter 15, Section 2A, section 13.2, and Annex K, the respondent sets out a policy in relation to dependants of a Gurkha soldier over the age of 18 in the following terms:

Dependents over the age of 18 of foreign and Commonwealth HM Forces members (including Gurkhas) who are not otherwise covered in this guidance would normally need to qualify for settlement in the UK under a specific provision of the Immigration Rules.

In exceptional circumstances discretion may be exercised in individual cases where the dependent is over the age of 18.

However, settlement applications from dependents over the age of 18 who are the children of serving foreign and Commonwealth HM Forces members (including Gurkhas) who meet the requirements of a parent should normally be approved, provided the dependent has previously been granted limited leave to enter or remain in the UK as part of the family unit and they wish to continue to reside and be educated in the UK.

31. Issues to note in relation to the respondents published policy is that those not covered by the provisions of the guidance need to establish a right to enter the United Kingdom through normal immigration channels, i.e. under the Immigration Rules or Article 8 ECHR. The third paragraph is not relevant to this appeal as it relates to children of serving members of HM Armed Forces which do not include these appellants.
32. Annex K applies to adult children of former Gurkhas and states at paragraph 5 “spouses, civil partners, unmarried or same-sex partners, children under 18 and widows of former Gurkhas are covered by existing published guidance (see background to the policy in paragraphs 6 – 8 below) and therefore outside the scope of this policy. The applicant’s mother as a widow of a Gurkha was therefore able to secure entry in her own right to enter and settle within the United Kingdom. The policy is therefore applicable to these appellants as they do not fall within any of the exceptions.
33. The section of the policy headed “Settlement for Adult Children of Former Gurkhas” sets out the requirements that need to be shown to be met to enable an individual to satisfy the policy, sufficient to entitle them to grant of entry clearance. The relevant guidance stated:

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 paragraph 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 the 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 applicant lived 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 for those provisions of Part 9 of the Immigration Rules (general grounds for refusal) that apply in respect of applications made under Appendix Armed Forces.

34. What is clear is that the policy creates a specific link between the serving or former serving Gurkha soldier and a potential applicant. In this case the application is based upon an alleged link between the appellants’ and the widow of the Gurkha soldier, their mother. The Upper Tribunal has been referred to no published policy, case law, or guidance that supports the contention that the rights granted to former Gurkha soldiers should also be read as being applicable to widows of former Gurkha soldiers who may choose to settle in the United Kingdom and wish for their children to join them after the death of the Gurkha.
35. It is also clear on the facts of this case that the appellants’ were not able to satisfy the specified requirements number 1, 5, 6, 7, or 8 as the former Gurkha parent died in 2006 and was not in the process of being granted settlement under the 2009 discretionary arrangements, the appellants’ had not shown they were financially and emotionally dependent on the former Gurkha, and had not established before the Judge that the requirements of section 6, 7, or 8 had been made out.
36. The only option available for the appellants’ in this case was, as correctly identified by the Judge, Article 8 ECHR. Even if there was family life recognised by Article 8 between the appellants’ and their mother, who chose to come to the United Kingdom, not to join a husband, but for her own reasons, the issue would still be the proportionality of the decision and consideration of whether when balancing the desire of this family unit to remain together against the legitimate interests relied upon by the respondent, the weight of factors came down in the appellants’ favour.
37. The Judge did not find on the basis the limit evidence made available that the required degree of emotional and financial dependency and ties existed between the appellants’ and their mother. As stated, the Judge was asked to consider the matter on the papers and having considered those documents it has not been arguably made out that the finding is outside the range of permissible reasonable findings the Judge was entitled to make. As stated, however, such an argument is arguably academic as whether considering family or private life the test in relation to the proportionality of the decision is effectively the same. It is not disputed that the appellants’ relationship with their mother, even if it does not satisfy the definition of family life recognised by Article 8, will form a very strong element of their private life. In this respect the Judge was right to consider the proportionality of the decision which the Judge did. Having balance the competing interests the Judge found that the decision was proportionate to the legitimate aim relied upon. The Judge noted the competing arguments, including the ongoing financial support, but in light of the fact the appellants’ failed to establish this is other than a normal proportionality assessment with no additional elements requiring the appeal to be allowed, I do not find that appellants’ have made out on the basis of the submissions made to the Upper Tribunal that the decision is infected by arguable legal error sufficient to warrant it being set aside and remade in the applicant’s favour as invited by Mr Pvar. The existence of family life is a question of fact.

Decision

38. There is no material error of law in the First-tier Tribunal Judge’s decision. The determination shall stand.

Anonymity.

39. 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 28 March 2017