Tribunal decisions

The decision

IAC-FH-AR-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Numbers: OA/16808/2012
OA/16825/2012

THE IMMIGRATION ACTS

Heard at Field House
Determination Promulgated
On 5 December 2013
On 24 December 2013

Before

THE HONOURABLE MR JUSTICE MITTING
UPPER TRIBUNAL JUDGE MOULDEN

Between

AADEEP RANA
ADARSHA RANA
Appellants
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellants:
For the Respondent:

DETERMINATION AND REASONS
1. The appellants are aged 29 and 27. They are single Nepalese men living in their parent’s family home in Nepal. Both are undertaking full-time education or were at the date of the First-tier Tribunal’s decision. It may now have ended. Their sponsor is a Ghurkha veteran. He served in the Ghurkha Brigade from October 1971 until January 1991. He was honourably discharged on that date. His assessment by his commanding officer repays citation.
“Colour Sergeant, .... Rana, has completed nineteen years loyal service in the British Army. He is a thoroughly honest and conscientious person who has served in a variety of posts in many areas of the world. He is totally reliable and sets an excellent example for those who work for him. He is a very good administrator and a particularly efficient instructor. He has recently been the chief instructor at the Dovey Agricultural Centre where he did extremely well. He is well suited to an administrative or supervising post.”
2. We cite that assessments for three purposes. First, to set the context for the evidence which we have permitted him to give and to assist us in assessing its truthfulness and reliability. Secondly, because it demonstrates that he not only served in the Ghurkha Brigade but did so loyally and to a standard which impressed his commanding officer, as we have noted. And thirdly, and not unimportantly, because it demonstrates that he had, in the assessment of his commanding officer, marketable skills beyond those of a serving soldier.
3. From September 1991 until a date which we do not know but which it is not material in 2004 he served with the Ghurkha Reserve Unit in Brunei. In his evidence to us today he told us that he started as a private at 16,000 Brunei dollars a month and ended in a rank that I am afraid we did not catch precisely but which clearly involved some promotion at a final salary of 18,000 Brunei dollars per month.
4. The mother of the appellants died in 2003. The two sons remained in Nepal. In September 2004 their sponsor obtained work as a security guard at the British Embassy in Kabul which he began in February 2005 and undertook until December 2008. When the regime for the admission of former Ghurkhas changed in the United Kingdom he applied for and was granted indefinite leave to remain in 2006. After completing his service in the British Embassy in Kabul he returned to Nepal until June 2010. From then onwards he has lived in the United Kingdom working for a security company here.
5. Before the First-tier Tribunal the appellants’ then representative accepted that they did not qualify under paragraph 317 of the Immigration Rules because they were not living alone in the most exceptional compassionate circumstances. The case for them is therefore founded squarely upon Article 8. In the course of it, as one would expect in any Ghurka case, the historic injustice formerly meted out to members of the Ghurkha Brigade was touched upon. The First-tier Tribunal found the following:
(i) That there was “no dependency between the appellants and the sponsor and their stepmother .. which goes beyond that which one would normally expect between parents and their adult children.”
(ii) It was not unreasonable to expect the sponsor and stepmother to relocate to Nepal to continue family life with the appellants if that was their choice.
(iii) Family life was not “engaged”
(iv) The appellants were not dependant children when the sponsor applied for leave to remain in 2006.
(v) The refusal of leave to remain would be a proportionate response to the legitimate aim of immigration control.
6. A surprising feature of the case is that nowehre in the decision is the righting of the historic wrong squarely addressed. At the date of the Determination and Reasons, which were promulgated on 3 May 2013, it was already settled law that that issue when it arose in the case of a Ghurkha veteran and adult children should be addressed in the manner identified by Master of the Rolls in R (ota) Gurung v Secretary of State for the Home Department [2013] 1 WLR 2546 at paragraph 42.
“If a Ghurkha can show that but for the historic injustice he would have settled in the United Kingdom 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. ... That is why we cannot agree that as a general rule the weight accorded to the injustice should be substantially different in the two cases.”
That is a reference to the British Overseas Citizens cases.
7. Since the First-tier Tribunal promulgated its Determination and Reasons the issue has been revisited by this Tribunal. In Ghising v Secretary of State for the Home Department [2013] UKUT 00567 (IAC) the Tribunal observed in paragraph 59 that it accepted Counsel for the appellant's submission
“That where Article 8 is helped to being engaged and the fact that but for the historic wrong the appellant would have been settled in the UK long ago is established, this will ordinarily determine the outcome of a proportionality assessment and determine it in an appellant’s favour. The explanation for this is to be found not in any concept of the new or additional “burdens” but rather on the weight to be avoided in the historic wrong/settlement issue in a proportionality balancing exercise.”
8. In paragraph 60 the Tribunal went on to explain that it could immediately be appreciated that in many Ghurkha cases appeals will not necessarily succeed if there are factors such as, for example, a poor immigration history or criminal conduct which dictate otherwise.
9. On the facts of this case it was plain that Article 8 was “engaged” in that somewhat loose portmanteau word. The two appellants were financially dependent upon the sponsor as the First-tier Tribunal accepted and there were close ties between father and sons. The appellants were professionally represented. It is apparent that the representative had a reasonable understanding of immigration law and presented a comprehensible case but it still remains an unanswered question why the obvious issue which we have identified was not raised by them, or if not by them then by the Tribunal itself. On facts such as these consideration of the historic injustice and the weight that should be given to it in the proportionality assessment in an Article 8 case, is such an obvious question that, if it is not asked and answered sensibly there is likely to have been an error of law in the approach of the Tribunal.
10. In addition, in paragraph 49 of the determination the Tribunal made the following arguably erroneous statement of law.
“Given that the Ghurkhas are Nepali nationals it is not inherently unfair or in breach of their human rights to distinguish between Ghurkha veterans, their wives and minor children on the one hand who will generally be given leave to remain and adult children on the other who will generally be given leave to remain only in exceptional circumstances.”
That, we are satisfied is an erroneous statement of the law as established in Gurung and most recently in Ghising.
11. There are therefore in our judgment two errors of approach which amount to errors of law in the judgment of the First-tier Tribunal. The first, the failure to ask and answer the obvious question about historic injustice, and the second to state that the law accepts without further qualification the distinction between Ghurkha veterans, their wives and minor children and adult children without bringing into the equation the great weight that must be given to righting the historic injustice.
12. Having identified that error of law we have admitted evidence from the sponsor first in the form of a single paragraph in an up-to-date witness statement in which he says that he would have applied for settlement together with his family had he had the opportunity to do so at a time when his children were minors. At our request he expanded upon that in evidence given to us. He confirmed the fact that he would have applied to come to the United Kingdom. In relation to his family circumstances he put at the forefront of his consideration the education of his children. As it happens that has taken place in a variety of places across the world at his expense. He would have expected, and they would have been entitled to receive, a first-class education at no expense in the United Kingdom.
13. Secondly, he says that he has always served the Crown loyally to the best of his ability and that he loves this country and for that reason would himself have liked to live here if permitted to do so. We note that the jobs he has undertaken since discharge have not only put his required skills as a soldier to good use but were also entirely consistent with serving the interests of the Crown. His earnings in the Ghurkha unit in Brunei would have equated, at current exchange rates, to £800 or £900 a month. His earnings in Afghanistan, US$2,500 per month, would be equated at current exchange rates to about £1,700 per month. We do not know what his earnings are now in his current employment but given the terms of the discharge assessment it is in our judgment very unlikely to the point of being inconceivable that he would not have been able to secure, by the mid-nineties at the latest, employment in England suitable to his background and skills which would have provided him with an income at least as great as that which he enjoyed in Brunei, even allowing for the free board and accommodation which he no doubt received in the Reserve Unit.
14. Given the strength of his wish to educate his children in the United Kingdom and his declared loyalty to the Crown and love for this country, we are satisfied at the very least on the balance of probabilities, but in fact to a higher standard that, but for the historic injustice, he would have brought his family including the two appellants to the United Kingdom long before they reached 18. Accordingly on those facts if the expression can be used, this is a standard Ghurkha family case in which there are no countervailing considerations. This appeal must therefore succeed.

Signed Date

The Honourable Mr Justice Mitting