Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: HU/12629/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 3 November 2017
On 17 November 2017

Before

DR H H STOREY
JUDGE OF THE UPPER TRIBUNAL

Between

the Secretary of State for the Home Department
Appellant
and

bina gurung
(ANONYMITY DIRECTION not made)
Respondent

Representation:

For the Appellant: Mr E Tufan, Home Office Presenting Officer
For the Respondent: Mr H Dieu, N C Brothers & Co, Solicitors

DECISION AND REASONS

1. The respondent (hereafter the claimant) is a citizen of Nepal aged 26. She applied for entry clearance as the dependent daughter of a former Gurkha soldier. Her application was refused on 10 November 2015 and she appealed under s. 82 of the NIAA 2002 on human rights grounds. The case came before Judge Thomas of the First-tier Tribunal (FtT). The judge heard evidence from the sponsor, Mr Sun Gurung. He joined the British army in 1969 and retired in September 1984 with full pension and an exemplary service record. His evidence was that he returned to live in Nepal but would have settled in the UK if he had been given the opportunity at the time of his retirement. When he eventually applied for settlement in the UK he had been advised that the discretionary policy for former Gurkha soldiers only applied to children under 18. The appellant was 18 at the time. Had he known he could have included her then, he would have. He has been settled in the UK since 2010. He supported the appellant financially and emotionally and it had always been the intention to live together as a family unit with the appellant. At paragraphs 13-16 the judge stated:

"13. I found the Sponsor to be a credible witness. I accept his account of the relationship and contact he has with the Appellant. She is his only unmarried daughter and has until now been in full time education. The phone cards and viber records go to prove ongoing contact. I accept his evidence that he left money with his friend for the Appellant and regularly remitted money to her since 2012. The remittances produced, go to prove financial support. I accept that he has visited annually since 2012, as is supported by stamps in his passport. He came to settle in the United Kingdom in 2010, when permitted under the policy. At that time, the Appellant was 18. He bought his wife and two younger children with him. I accept his account that he was advised that the Appellant would not qualify for entry at that time because she was over 18. He arranged for her to go into full time education which he funds.

14. I accept the Sponsor's evidence that if he had been able to settle in the United Kingdom when he retired in 1984, he would have done so. Had that happened, this Appellant would have been born in the United Kingdom. Her mother passed away in 1995.

15. I find that the Appellant is single and in full time education in Nepal. Whilst she has brothers living nearby, I accept that she lives in separate accommodation to have daily easy access to transport to Pokhara where she is studying a degree course. She is not employed and has not developed an independent life. I accept that she has daily contact with the Sponsor, and I acknowledge his evidence that culturally, she will remain his financial responsibility until she is married. I find that she is part of his family unit and her dependence on the Sponsor is based on necessity.

16. I have considered the appeal in line with the case of Razgar [2004] UKHL 27. I find that there is a level of emotional and financial dependency between the Appellant and the Sponsor that go beyond normal emotional ties between adult children and their parents. Family life was established from the Appellant's birth in 1991 and continued throughout, including the period after her mother passed away in 1995, and her father remarried. The family has always been a unit and remain so. There is family life that engages Article 8 ECHR and deserves respect thereunder."

2. At paragraph 19 the judge stated that:

"[G]iven my findings in paragraphs 12-14 above it is likely that if considered now, the [claimant] would satisfy the substance of Annex K, the relevant policy that permits the entry of adult dependent relatives of former Gurkha soldiers".

At paragraphs 20-21 the judge concluded:

"20. In assessing proportionality, I have taken account of the public interest and the factors in sections in 117B and 117C of the 2002 Act, starting with the statutory principle that effective immigration control is in the public interest. I balance that against my finding in paragraph 18 above, that effective immigration control in line with the policy, permits entry clearance in certain circumstances.

21. The Appellant does not speak English, which could have a bearing on her ability to integrate in this country. However, she is a student, and I believe would learn English. The Sponsor financially supports her, and there is no evidence of recourse to public funds. She has sought to secure employment in Nepal, and I believe will seek to do the same in the United Kingdom. She is in good health. There is no evidence to indicate that she would be a burden on the taxpayer. It is said that the Sponsor chose to settle in the United Kingdom and could return to Nepal to live with the Appellant. That would however, in my view, negate the significance of the law which sought to right an historical wrong, by giving the Sponsor the right to settle in this country, in recognition of exemplary service to the British Crown, which he exercised. There is nothing in the Sponsor's immigration history or character to weaken that right. Balancing all relevant factors, I find in this case that the counterveiling features, including the historical wrong, outweighs the public interest in effective immigration control, and amounts to exceptional and compelling circumstances that justify leave outside the Immigration Rules. I therefore find that the Respondent's decision is not proportionate and breaches Article 8 ECHR."

3. I have set out significant passages from the judge's determination because they provide an important backdrop to my reasons for the conclusion I have reached which is to reject the appellant's (hereafter the Secretary of State or SSHD's) grounds of appeal. These grounds contend that the judge erred in allowing the appeal because the "limited evidence" concerning regular financial remittances and frequent communication does not demonstrate dependence according to the Kugathas [2003] EWCA Civ 31 standard- as this evidence "does not show elements of dependency beyond the normal emotional ties between adults ...". The grounds go on to highlight case law stating that financial dependency is not enough: AAO v Entry Clearance Officer [2011] EWCA Civ 840.

4. The second ground raised by the SSHD concerns the judge's giving of significant weight to his finding that were it not for the "historical injustice" of Ghurka settlement policy, the sponsor would have settled in the UK upon retirement and the appellant would have been born in the UK. The grounds assert that "this is pure speculation on the part of the judge".

5. The grounds finally argue that the judge's treatment of the s. 117B [of the NIAA 2002] consideration concerning financial independence was not a proper assessment.

6. There is a fundamental difficulty with these grounds. They do not raise any challenge to the judge's findings of fact and in particular those set out in paragraphs 13-16 cited earlier. The evidence on which those findings were based was not confined to evidence regarding financial remittances and frequent communication. It also embraced the claimant's evidence regarding her circumstances in Nepal and the fact that the sponsor had visited annually and the sponsor's evidence regarding the cultural reality that the claimant would remain his financial responsibility until she married. In any event the judge's clear finding at para 16 was that the degree of financial and emotional dependency between the sponsor and appellant was sufficient to establish family life between them within the meaning of Article 8(1). The factual foundation for that finding was ample. If the SSHD grounds intended to argue that in order to come within Article 8(1) the relationship with a parent and an adult child in her mid-20's had to exhibit some extraordinary or exceptional feature, that is plainly contrary to authority: see Rai v Entry Clearance Officer [2017] EWCA Civ 320 paragraphs 36-37.

7. It is unnecessary for me to address in any detail the other grounds because Mr Tufan helpfully conceded that if the SSHD could not show an error of law in the judge's finding that there was family life within the meaning of Article 8(1) the judge was entitled to allow the appeal. In my judgement that was a sensible concession in any event as what the judge called speculation was a feature of the Gurkha policy's application as established by case law. It was necessary to that application for a finding to be made on the hypothetical issue of whether a sponsor would have settled in the UK prior to the birth of a child. As regards s. 117B, the grounds may well be right to have expected the judge to accept that there was no present financial independence and perhaps no imminent financial independence either, But given the fact that the case was one of a historic injustice, the outcome of the proportionality assessment based on the facts as found was very clearly one that went in favour of the claimant, the judge's decision that entry clearance was required in order to comply with the claimant's human rights was entirely sustainable: see Ghising (family life - adults - Gurkha policy) [2012] UKUT 160 and Ghising and others (Gurkhas/BOCs: historic wrong; weight) [2013] UKUT 00567 (IAC).

Notice of Decision

8. For the above reasons I find that the SSHD's challenge to the decision of the FtT judge fails and accordingly that decision allowing the claimant's appeal on Article 8 grounds is upheld.

9. No anonymity direction is made.

Signed Date: 14 November 2017

Dr H H Storey
Judge of the Upper Tribunal