Ghising and Others (Ghurkhas/BOCs: historic wrong; weight)
| Jurisdiction | UK Non-devolved |
| Judge | Deborah Taylor,Peter Lane |
| Judgment Date | 22 August 2013 |
| Neutral Citation | [2013] UKUT 567 (IAC) |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Date | 22 August 2013 |
[2013] UKUT 567 (IAC)
Upper Tribunal
(Immigration and Asylum Chamber)
THE IMMIGRATION ACTS
UPPER TRIBUNAL JUDGE Peter Lane
UPPER TRIBUNAL JUDGE Deborah Taylor
For the Appellants: Mr C Jacobs, instructed by Howe & Co Solicitors (for Mr Ghising)
Mr R Jesurum, instructed by Howe & Co Solicitors (for the Rai family)
For the Respondent: Mr S Ouseley, Senior Home Office Presenting Officer
Ghising and others (Ghurkhas/BOCs: historic wrong; weight)
(1) 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.
(2) 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).
(3) 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.
(4) 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 Secretary of State/ entry clearance officer consist solely of the public interest in maintaining a firm immigration policy.
(5) It can therefore be seen that Appellants in Gurkha (and BOC) cases will not necessarily succeed, even though (i) their family life engages Article 8(1); and (ii) 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.
These appeals come to us by an Order from the Court of Appeal dated 14 th February 2013, following the handing down on 21 January of the judgment of that Court in Gurung and others [2013] EWCA Civ 8. In that Order, the Court set aside the previous determinations of the Upper Tribunal insofar as they relate to the question of proportionality under Article 8(2) and remitted the appeals to the Upper Tribunal to make fresh decisions on that question. The cases were heard consecutively on the same day and remitted in the same terms and it is therefore appropriate to deal with both matters together since they involve the same legal arguments and are based on similar facts, albeit that Mr Ghising's application was made in country and those of Kishor, Chandra and Yosa Rai (“the Rai family”) from out of country. Mr Ghising made an application for indefinite leave to remain in the UK as the dependent relative of a person present and settled here, having come to the UK as a student on 14 th January 2007. The Rai family applied for entry clearance under paragraph 317 for indefinite leave to enter as dependent relatives. Both cases concern dependent adult children of veterans of the Gurkha Brigade (the Sponsors) who have settled in the UK.
Mr Ouseley did not seek to argue that the findings of fact made by the Upper Tribunal had been challenged by the Respondent in the Court of Appeal and it is therefore on the basis of those facts that we make our decision today.
The Appellant is a citizen of Nepal born on 16 th July 1986. His father enlisted in the Brigade of Gurkhas on 23 rd November 1968 and was discharged on 6 th February 1992. He first became eligible for settlement in the UK as a consequence of his service in the British army in 2009, and on 4 th August 2009 was granted indefinite leave to remain here. His mother was granted indefinite leave one month later and on 25 th September 2009 they arrived in the UK. The Appellant himself had come here as a student on 14 th January 2007 with leave until 31 st December 2010.
The Appellant applied for indefinite leave to remain as a dependent of his father but was refused on 29 th July 2011. He appealed and his appeal was dismissed on 14 th September 2011. That decision was subsequently set aside and re-made and dismissed again by a panel of the Upper Tribunal (Mrs Justice Lang DBE and Upper Tribunal Judge Jordan) in Ghising (family life – adults – Gurkha policy) [2012] UKUT 00160 (IAC).
The Appellant's father wished to settle in the UK soon after his discharge ie in 1992 but was not permitted to do so because at that time Gurkhas who had served in the British army were not given the same rights to apply for settlement as other foreign and commonwealth nationals serving in the British Armed Forces. The Appellant's father said in his unchallenged statement dated 31 st August 2011:
“It would have been my firm intention to apply for settlement in the UK shortly after my discharge if I had been allowed to apply at that time. Sadly despite my long and vigorous military career this right was not available to my family or me for many years to come. If we had been allowed to come at this time then Roshan would only have been 6 years old.”
It is accepted by the Respondent that if the Appellant had accompanied his father to the UK whilst he was still a minor he would have been given indefinite leave to remain.
In Ghising, the Tribunal recorded that the Respondent's representative at the hearing before the panel conceded that the Appellant had established that he enjoyed family life with his parents and that Article 8 was engaged. The panel stated:
“In our judgment the evidence as at the date of the hearing establishes that the appellant and his parents genuinely enjoy a close-knit family life in which they value and depend upon each other for mutual support and affection. On the basis of the authorities we have cited above this is sufficient to engage Article 8. Although their family life was interrupted when the appellant came to the UK to study the appellant remained financially and emotionally dependent upon his parents during that period and their normal family life resumed as soon as his parents were above to settle in the UK” [72]
Finally, the panel, having found that the Appellant enjoyed a close-knit family relationship with his parents and that they value and enjoy each other's company on a daily basis and his parents depend on him, concluded that the removal of the Appellant to Nepal would severely interfere with his family life and the family life of his parents, Mr & Mrs Ghising. The panel also accepted that it was not reasonable to expect Mr & Mrs Ghising to return to Nepal and the distance between the UK and Nepal means that the scope for family visits will be limited.
Mr Jacobs submitted that on the basis of the findings of fact the panel ought to have allowed the appeal. Both of the reasons given by the panel for finding that the Appellant's removal would not be disproportionate were found to be wrong by the Court of Appeal.
First, the panel stated that the weight to be given to the historic injustice suffered by the Gurkhas should be given limited weight. They accepted that they ought to apply the principle which the Court of Appeal had developed in the cases concerning British Overseas Citizens, namely that the historic injustice and its consequences are to be taken into account when assessing proportionality under Article 8(2). The panel stated:
“However it is important to bear in mind that there are significant differences between the position of Gurkhas and that of British Overseas Citizens. Gurkhas were citizens of Nepal, not the UK. They were not entitled as a right to live in the UK. Moreover the exclusion of British overseas citizens has been formally recognised as racially and sexually discriminatory unlike the policy excluding Gurkhas. We therefore agree with the conclusion of Judge McKee in KG that the ‘historical wrong’ perpetuated upon Gurkhas was not as severe as that perpetrated upon British overseas citizens. In our view it carries substantially less weight.”
However at paragraph 41 of their judgment in Gurung, the Court of Appeal said:
“We do not consider that a judgment about the egregiousness of the injustice that was suffered by the Gurkhas as compared with that suffered by the BOCs should be a relevant factor in the balancing exercise. As submitted on behalf of NR, Ghising and KR, the crucial point is that there was an historic injustice in both cases, the consequence of which was that members of both groups were prevented from settling in the UK. That is why the historic injustice is such an important factor to be taken into account in the balancing exercise and why the applicant dependent child...
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