Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: oa/03260/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 1 December 2016
On 24 January 2017

Before

LORD MATTHEWS, SITTING AS AN UPPER TRIBUNAL JUDGE
DEPUTY UPPER TRIBUNAL JUDGE I A LEWIS

Between

meg bahadur thapa
(ANONYMITY DIRECTION NOT MADE)
Appellant
and

THE ENTRY CLEARANCE OFFICER, NEW DELHI, INDIA
Respondent

Representation:

For the Appellant: Mr S Jaisri, Counsel instructed by Sam Solicitors
For the Respondent: Mr N Bramble, Home Office Presenting Officer

DECISION AND REASONS

1. This is an appeal by Meg Bahadur Thapa against a determination of First-tier Tribunal Judge Turquet promulgated on 8 July 2016 refusing his appeal against refusal of entry clearance, that decision being made on 14 January 2015. The appellant, who was born on 7 December 1982, is a citizen of Nepal and he applied for entry clearance to settle in the United Kingdom as the dependent son of a former Gurkha soldier on 18 October 2014. His father and his mother also applied on that date. His father had served with distinction for eighteen years, reaching the rank of corporal. He and the appellant's mother arrived in the UK on 18 March 2015, having been granted indefinite leave to remain on 5 January 2015.

2. The appeal before us was on the basis of Article 8 of the European Convention on Human Rights. In summary the grounds are to the effect that the judge's findings on family life are inadequate and in addition the judge failed to pay proper regard to the decision in Gurung. The reasons for refusal by the Entry Clearance Officer are set out in the decision letter and are summarised in the determination. These are all matters of record. We shall revert to this. Suffice it to say in the meantime that the Entry Clearance Officer was not satisfied that the appellant was dependent on his father and did not require long-term personal care. His parents, it was said, were more likely to be dependent on him. He would be likely to be reliant on public funds and in short, for a number of reasons, he failed to meet the requirements of the Immigration Rules. It was his parents' choice to come to the UK knowing that there would be no guarantee he could accompany them and there was no provision in the Rules or guidance relating to the admission of dependants of ex-Gurkhas so that they could care for their parents.

3. The Entry Clearance Officer also considered Article 8. He indicated that he had taken account of Article 8 and the case of Ghising and Others [2013] UKUT 567, where it was found that Article 8 was engaged and, but for the historic wrong which is well-documented and into which we need not go, the appellant would have been settled in the United Kingdom long ago. This would 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 consist of solely the public interest in maintaining a firm immigration policy. The Entry Clearance Officer was satisfied that the reasons for refusal outweighed the consideration of the historical injustice. The appellant had grown up in Nepal and his parents chose to apply for settlement visas when he was already an adult in the full knowledge that he would not automatically qualify for settlement as well. There was no bar to his parents returning. Family life could continue as it might have done and without interference by the decision. Even if it were accepted that refusal might be an interference with his private life, the Entry Clearance Officer was not satisfied that family life had been established over and above that between an adult child and parents. In all the circumstances he considered that the historic injustice did not outweigh the need for some immigration control and refused the application. The Entry Clearance Manager reviewed that decision and upheld it.

4. Before us it was argued that the First-tier Tribunal's assessment of Article 8 was inadequate. It is set out in paragraphs 26 and 27 of the determination and again is a matter of record.

5. Mr Bramble on the other hand argued, with some diffidence it seemed to us, that the assessment was adequate. But there are a number of points which cause us concern. We indicated that we would revert to the decision of the Entry Clearance Officer. Having set out the background to the application, the Entry Clearance Officer, in the third paragraph of the decision proper, said the following:

"You have now lived apart from your parents for a period of over two years and have managed to do so. You have been involved with your studies and have all the amenities you require for living in Nepal. You have your adult sibling who lives with you whom you could turn to in times of need. It is also likely that you will have extended family in Nepal."

6. The fact of the matter is, as was conceded quite properly and fairly by the Home Office Presenting Officer, Mr Bramble, that in large measure that paragraph is in error. It may be that it is lifted from another case but that is somewhat speculative. What is certain is that it bears no relationship to the circumstance of the appellant. Unfortunately that paragraph is referred to uncritically in the determination at paragraph 18 and the Article 8 assessment at paragraphs 26 and 27 makes no mention of the obvious error, which may well have infected the decision and been carried on into the determination. It is not the case that the parties had lived apart for two years. It is not the case that the appellant had an adult sibling living with him. He did have an adult sibling but she was living in Hong Kong. That is an important matter which affects the consideration of family life to such an extent that we consider an error of law has been made in not properly dealing with it.

7. In addition the judge, in our opinion wrongly, and without any basis finds an inconsistency in the appellant's own interview when he considers the interaction of questions 14 and 21. In answer to question 14, which asked what his daily routine was (at a time when he and his parents were living together), he said that he used to fill drinking water in the morning and then cooked food. He went on to say "we have cattles here. I look after them. I clean house. I look after parents when they are not well". In answer to question 21, which was "what do you do here in Nepal?" he said, "I am not doing anything. I sit in home only doing household work". It is pretty obvious to us that the reference to household work would easily have encompassed the filling of drinking water, cooking food and looking after cattle. The credibility assessment made by the judge on the basis of what he perceived was an inconsistency in his answers is flawed. There is no inconsistency.

8. Mr Bramble made a number of tentative arguments in support of the judge's reasoning in relation to these questions but we find that the reasoning simply cannot be supported. In these circumstances, it is our view that the decision has to be set aside and we propose to reconsider the question of family life for ourselves.

9. We take as our basis the statement of the sponsor, the appellant's father, who tells us that he served in the army for eighteen years, that he was discharged on 4 October 1985 at the rank of corporal and that conduct was assessed as exemplary. He sets out when he and his wife arrived in the United Kingdom and the history of their applications. He goes on to tell us that the appellant cannot live an independent life in Nepal alone because he and his wife support him financially and emotionally. While there are relatives in Nepal, they are all married and deal with their own independent lives with their own families. His sister in Hong Kong lives an independent life with her husband and cannot provide the emotional support which a parent could provide. She could not provide support in times of need.

10. The sponsor goes on to say that due to his age the appellant was able to support him and his wife just as a parent has a duty to look after the children. In Nepalese culture a son also has a duty. This did not mean that they were dependent on him but the appellant required emotional and financial support and they had a duty to ensure that. He sent money to Nepal to cover the appellant's daily expenses and enclosed receipts to confirm that. He went on to say that the appellant relied solely on his parents for emotional support and in Nepalese culture parents were responsible for their children until they got married no matter what age the children were. The appellant was still not independent and was financially and emotionally dependent on his parents. He was unmarried and never had been married. It was difficult for the family to live apart. He and his wife communicated with the appellant through social media but that was difficult to do so given that he was in another country.

11. There is no reason for us not to accept that evidence. We find that there is an inter-dependency between the parties, that it goes beyond mere emotional ties and that while the appellant is now an adult, we find family life established, having regard to the criteria set out in Kugathas. So where does that take us?

12. We have to go on now to consider what the implications of Gurung and Ghising are. The appellant's father, the sponsor said the following in his statement:

"It has always been my intention to settle in the United Kingdom. However, I was not allowed to apply for Indefinite Leave to Remain until November 2009. Ex-Gurkhas who retire after 1997 were allowed to apply for settlement as early as 2006. If I had the opportunity to apply for settlement for myself and my son before 2006, I would have applied to settle before my son had turned 18, but this opportunity was denied to me. I was not allowed to apply to settle in the United Kingdom until 2009."

We need not quote the whole of that paragraph.

13. We have no difficulty in accepting that evidence as well. It follows that, had the sponsor been able to apply for settlement in the United Kingdom when his son was a minor he would have done so. It seems to us that this brings into question quite sharply the issues which were raised in Gurung and Ghising. There was family life. Applying the Razgar questions we find that the first four are answered in the affirmative. That leaves us only with the question whether the refusal of leave was proportionate. Given the findings so far the only factor weighing against the granting of entry would seem to be the maintenance of immigration control and the age of the appellant. We refer to this because of the policy of not allowing settlement to anyone who is not over the age of 18 and under the age of 30. We are not going into detail about that policy because it seems to us that it is for us to decide whether the refusal is disproportionate or otherwise. We are satisfied, as we have said, that there was mutual dependency. We look at the effects on the whole family. We consider the potential effects of Gurung and Ghising. We consider the effect of the historic injustice. Bearing in mind what has been said in the authorities, and weighing up all the factors, including the age of the appellant, who is now 31, the policy covering adults between 18 and 30 and the need for immigration control, we find that the refusal is indeed disproportionate. We do not consider that the fact he is 31, whatever the policy says, is a significant factor or at least that it is so significant as to counterbalance the strong feature of the historic injustice nor is the need for immigration control in that category either.

Notice of Decision

14. Having found that the refusal is disproportionate we are of the view that this appeal must be allowed. We should indicate that there were no immigration or other features beyond those we have indicated which would weigh in the balance to the other effect. Accordingly, the appeal is allowed.

15. No anonymity direction is sought or made.

LORD MATTHEWS
Sitting as an Upper Tribunal Judge
(Immigration and Asylum Chamber)

Date: 23 January 2017

TO THE RESPONDENT
FEE AWARD

The appeal has been allowed and in all the circumstances we make a whole fee award.

LORD MATTHEWS
Sitting as an Upper Tribunal Judge
(Immigration and Asylum Chamber)

Date: 21 January 2017