Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: OA/02459/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 10th April 2017
On 26th April 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE D N HARRIS

Between

mr Nabin Pun
(no ANONYMITY DIRECTION made)
Appellant

and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation:

For the Appellant: Miss K Lagunju, Counsel
For the Respondent: Mr N Bramble, Home Office Presenting Officer

DECISION AND REASONS

1. The Appellant is a citizen of Nepal born on 20th July 1983. The Appellant applied for entry clearance to settle in the United Kingdom as the adult dependent son of his mother and Sponsor Bhai Mati Pun the widow of his father an ex-Gurkha soldier. His application was considered by the Entry Clearance Officer New Delhi under paragraph EC-DR1.1 of Appendix FM of the Immigration Rules and pursuant to Article 8 of the European Convention of Human Rights. His application was refused by Notice of Refusal dated 7th January 2015.
2. The Appellant lodged Grounds of Appeal and the appeal came before Judge of the First-tier Tribunal Coutts sitting at Hatton Cross on 23rd August 2016. In a decision and reasons promulgated on 23rd September 2016 the Appellant’s appeal was dismissed on human rights grounds.
3. On 19th October 2016 Grounds of Appeal were lodged to the Upper Tribunal. Those grounds contended firstly that the learned First-tier Tribunal Judge’s conclusions regarding family life whether Article 8 was engaged was contrary to the findings in Ghising (Family life – adults – Gurkha policy) [2012] UKUT 00160 which I acknowledge provides support for the proposition that family life can continue past the age of majority, i.e. it is not suddenly cut off, and it was further submitted thereunder that despite being referred to this authority the First-tier Tribunal Judge had failed to mention it or consider it and consequently the judge’s conclusions regarding family life amounted to a material error of law.
4. Secondly it was contended that the historical injustice argument referred to in the case of R (Gurung) v Home Secretary [2013] 1 WLR CA was relevant to the Appellant’s appeal. It is acknowledged by both legal representatives before me that that second Ground of Appeal only becomes pertinent to this appeal if the Appellant succeeds in showing there is a material error of law in the First-tier Tribunal’s approach to the first Ground of Appeal.
5. On 15th February 2017 First-tier Tribunal Judge Shimmin granted permission to appeal. On 23rd March 2017 a response to the grant of permission to appeal pursuant to Rule 24 was filed and served by the Secretary of State. It is on that basis that the appeal comes before me to determine whether or not there is a material error of law in the decision of the First-tier Tribunal Judge. The Appellant appears by his instructed Counsel Miss Lagunju. Miss Lagunju is familiar with this matter in that she appeared before the First-tier Tribunal. The Secretary of State appears by her Home Office Presenting Officer Mr Bramble.
Submissions/Discussion
6. Miss Lagunju submits that there is a material error of law in the decision of the First-tier Tribunal Judge in that the judge has failed to make reference in his decision to the authorities, in particular that of Ghising (Family life – adults – Gurkha policy) [2012] UKUT 00160. She indicates that this is despite the fact that the authority was specifically referred to the judge at the First-tier Tribunal hearing. She acknowledges that reference was made therein to previous findings made by a previous judge but that that decision predates the plethora of authorities that began with Ghising in 2012 and with Gurung. She submits that it is a material error not to have mentioned or given due consideration to those authorities. She goes on to comment that the second Ground of Appeal would only be of relevance if she succeeds on the first ground.
7. In response Mr Bramble takes me to the First-tier Tribunal Judge’s decisions and to paragraphs 25 and 26 where reference is actually made to the authorities. He submits that it is not necessary for a judge to slavishly note case law and that the judge was entitled to make the findings that he did and he takes me to the starting point of the judge’s decision at paragraph 36 and to the findings made by the judge in that paragraph and thereafter. He asked me to find that there is no material error of law and to dismiss the appeal. In short response Miss Lagunju takes me to paragraph 40 of the First-tier Tribunal Judge’s decision and points out that there is therein a complete failure to make reference to the authorities and that it is implicit that the judge had failed to give due consideration as to whether the Appellant could or could not be part of a family unit. She asked me to find that there is a material error of law and to set aside the decision of the First-tier Tribunal and either to remake it or to remit the matter back to the First-tier for rehearing.
The Law
8. Areas of legislative interpretation, failure to follow binding authority or to distinguish it with adequate reasons, ignoring material considerations by taking into account immaterial considerations, reaching irrational conclusions on fact or evaluation or to give legally inadequate reasons for the decision and procedural unfairness, constitute errors of law.
9. It is not an arguable error of law for an Immigration Judge to give too little weight or too much weight to a factor, unless irrationality is alleged. Nor is it an error of law for an Immigration Judge to fail to deal with every factual issue of argument. Disagreement with an Immigration Judge’s factual conclusion, his appraisal of the evidence or assessment of credibility, or his evaluation of risk does not give rise to an error of law. Unless an Immigration Judge’s assessment of proportionality is arguable as being completely wrong, there is no error of law, nor is it an error of law for an Immigration Judge not to have regard to evidence of events arising after his decision or for him to have taken no account of evidence which was not before him. Rationality is a very high threshold and a conclusion is not irrational just because some alternative explanation has been rejected or can be said to be possible. Nor is it necessary to consider every possible alternative inference consistent with truthfulness because an Immigration Judge concludes that the story is untrue. If a point of evidence of significance has been ignored or misunderstood, that is a failure to take into account a material consideration.
Findings on Material Error of Law
10. The main thrust of the Grounds of Appeal are that there has been a failure to refer to the lead authority of Ghising and to subsequent authorities which could be considered of relevance in Nepalese cases. Both the Tribunal and the Mr Bramble on behalf of the Secretary of State referred Miss Lagunju to paragraphs 25 and 26 of Judge Coutts’s decision. Paragraph 25 sets out the authorities to which he was referred and they include Ghising.
11. Paragraph 26 is of importance because it addresses the manner in which the judge gave due consideration to these authorities. I repeat the comments set out therein:
“26. I shall note here that I have read and considered all the papers before me. Where I have been guided to certain passages in the objective material by a representative, I have read those passages with especial care. However, I have read them in the context of the entire document. The whole documentation set out before me has assisted me in arriving at my conclusions.”
12. It is consequently wrong as a matter of fact for Miss Lagunju to indicate that the judge has not given due consideration to these authorities. What I accept she is trying to indicate is that the judge has not applied these authorities. That in itself is shown to be untrue by the manner in which the judge goes on to consider the evidence. He notes at paragraph 36 the position of previous family life and that that represents his starting point. At paragraph 37 it is noted that the Appellant plays badminton and though unsuccessful looks for work and at paragraph 38, importantly, it is set out that the core element of the family situation remains the same and issues of financial support are mentioned therein. It is noted by the judge at paragraph 39 that the Appellant contends he is not leading an independent life and that his family life with the Sponsor goes beyond the normal emotional ties that exist between them. Thereafter at paragraph 40 and at the subsequent paragraphs the judge acknowledges that the relationship between the Appellant and the Sponsor is a close one but he is not satisfied that their relationship goes beyond the normal relationship that one would expect to find between a mother and her youngest child.
13. The case law, or more importantly the failure of the judge to specifically name the case law in his findings and reasons, does not assist the Appellant. It is clear that the judge has given due consideration to the authorities but more importantly it is clear from his reasoning in his findings and reasons that he has applied those principles and has had the decision of Ghising in mind. Ghising I remind myself states that rather than applying a blanket rule with regard to adult children each case should be analysed on its own facts to decide whether or not family life exists within the meaning of Article 8(1) and while some generalisations are possible each case is fact-sensitive. It cannot be said that this judge has not analysed and looked carefully at all the facts. In fact his findings of fact are extensive and well thought out and reasoned. In such circumstances the submissions made under Ground 1 amount to little more than disagreement with his findings. In such circumstances the decision discloses no material error of law.
14. I very briefly address the second ground only insofar as it is accepted by both legal representatives that any consideration thereunder cannot succeed unless I find there is a material error of law under Ground 1. Having concluded that there is no material error of law thereunder it is not necessary for me to go on to consider Ground 2 and I note indeed that neither legal representative has addressed me in any great detail upon it.
Notice of Decision
The decision of the First-tier Tribunal discloses no material error of law. In such circumstances the appeal of the Appellant is dismissed and the decision of the First-tier Tribunal Judge is maintained.

No anonymity direction is made.

Signed Date 24th April 2017

Deputy Upper Tribunal Judge D N Harris

TO THE RESPONDENT
FEE AWARD

No application is made for a fee award and none is made.

Signed Date 24th April 2017

Deputy Upper Tribunal Judge D N Harris