Ghising (family life - adults - Gurkha policy)
| Jurisdiction | UK Non-devolved |
| Judge | MRS JUSTICE LANG |
| Judgment Date | 01 March 2012 |
| Neutral Citation | [2012] UKUT 160 (IAC) |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Date | 01 March 2012 |
[2012] UKUT 160 IAC
Upper Tribunal
(Immigration and Asylum Chamber)
THE IMMIGRATION ACTS
Mrs Justice Lang DBE
UPPER TRIBUNAL JUDGE Jordan
For the Appellant: Mr Arkhurst, Counsel, instructed by Howe & Co.
For the Respondent: Mr Bramble, Home Office Presenting Officer
Ghising (family life — adults — Gurkha policy)
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1. A review of the jurisprudence discloses that there is no general proposition that Article 8 of the European Convention on Human Rights can never be engaged when the family life it is sought to establish is between adult siblings living together. 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). Whilst some generalisations are possible, each case is fact-sensitive.
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2. The historic injustice and its consequences suffered by former members of the Brigade of Gurkhas are to be taken into account when assessing proportionality under Article 8(2) but the ‘historical wrong’ was not as severe as that perpetrated upon British Overseas Citizens and carries substantially less weight. Because of the exceptional position of Gurkha veterans, and their families, the Secretary of State has made special provision for their entry to the UK outside the Immigration Rules as an acknowledgment that it is in the public interest to remedy the injustice.
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3. Given that the Gurkhas are Nepali nationals, it is not inherently unfair or in breach of their human rights to distinguish between Gurkha 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 only be given leave to remain in exceptional circumstances. The scheme that the Secretary of State has developed is capable of addressing the historical wrong and contains within it a flexibility that, in most cases, will avoid conspicuous unfairness.
The Appellant, who is a national of Nepal, has appealed against the decision of the First Tier Tribunal (‘FTT’) (Immigration Judge A.M. Black) which, on 14 September 2011, dismissed an appeal against the refusal of leave to remain as the dependant of a former member of the Brigade of Gurkhas.
We heard this appeal on the same day as another appeal because it raised similar issues, and so our legal analysis is the same in both cases.
The grounds of appeal were that the FTT failed to give proper consideration to the application of Article 8 ECHR to the circumstances of the Appellant's case. The Appellant, who is aged 25, lives with his parents in the UK. Since 2007, he has had leave to study in the UK. His parents both have Indefinite Leave to Remain (‘ILR’).
Permission to appeal was given by FTT Judge Davey on 29 September 2011.
The Respondent did not oppose a finding that the Judge erred in law in her assessment of Article 8.
On 8 December 2011, Upper Tribunal Judge Kebede decided, pursuant to rule 34 of the Tribunal Procedure (Upper Tribunal) Rules 2008, that the FTT had erred in law and therefore the decision should be set aside and re-made by the Upper Tribunal.
The Appellant applied for ILR on 17 September 2010, as the dependant relative of his father, a person present and settled in the UK.
The Respondent refused the application, in a letter dated 29 July 2011, on the following grounds:
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a) The Appellant was 25 years old, in good health, and had demonstrated that he could live independently from his parents, and support himself.
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b) The Appellant did not satisfy the requirements of paragraph 317(i)(f) and (iii) of the Immigration Rules as he had not established that he would be living alone outside the UK in the most exceptional compassionate circumstances and that he was financially wholly or mainly dependent on a relative present and settled in the UK.
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c) Leave may be granted outside the Immigration Rules, in exceptional circumstances, pursuant to Immigration Directorate Instructions, Chapter 15, Section 2A, paragraph 13.2. There were no grounds to exercise this discretion in favour of the Appellant.
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d) Removal to Nepal would not interfere with the Appellant's Article 8 rights. He had not established an interference with family life within the meaning of Article 8(1), as there was no dependency going beyond normal emotional ties in his relationship with his parents. Although he had established a private life, any interference could be justified in the circumstances of his case.
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e) The Appellant had failed to establish grounds for discretionary leave.
In a decision promulgated on 14 September 2011, Immigration Judge A.M. Black dismissed the Appellant's appeal on the following grounds:
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a) The Appellant rightly conceded that he did not fulfil the requirements of paragraph 317 of the Immigration Rules;
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b) The Appellant had not established an interference with family life within the meaning of Article 8, as his emotional ties were no more than the usual ties which a 25 year old student has with his parents. He had lived apart from them for over 2 years.
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c) The Appellant had established a private life in the UK which encompassed his relationship with his parents and sisters, as well as his social life and studies in the UK.
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d) Removal from the UK was proportionate to the aim of immigration control. The Appellant must have appreciated when he came to the UK that he could have no expectation of settlement here. He would be able to maintain his relationship with family and friends from Nepal through visits and modern means of communication. He would probably fulfil the criteria for leave to complete his studies in the UK.
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e) The applicable policy was the March 2010 version of the IDI, at Annex A and Section 13.2., which gave the Respondent a discretion to grant leave outside the Immigration Rules in ‘exceptional circumstances’. It was for the Respondent to exercise this discretion, and it was not possible to make a finding that his decision in this case was not in accordance with the law.
The Appellant's grounds of appeal to the Upper Tribunal were:
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a) The Judge misapplied the relevant law in concluding that the Appellant did not have a family life with his parents, so as to engage Article 8(1);
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b) The Judge failed to consider whether the severity of any interference with the Appellant's family life would be such as to engage Article 8.
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c) Alternatively, the Judge misapplied the relevant law by overstating the degree of severity required for Article 8 to be engaged.
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d) In assessing proportionality, the Judge failed to take into account a significant factor, namely, the righting of an historic wrong towards the Gurkhas.
In the Upper Tribunal, the Appellant did not pursue the ground of appeal relied upon at the FTT, namely, that the Respondent had failed to apply its discretionary policy lawfully to the Appellant's case.
The Appellant, whose date of birth is 16 July 1986, is now aged 25. He was born in Hong Kong in the British Military Hospital, while his father was serving in the British Army.
His father, Mr Lal Bahadur Ghising, is a national of Nepal, who was born on 23 November 1950. He enlisted in the Brigade of Gurkhas on 23 November 1968, serving in The Queen's Gurkha Engineers. He was posted to Singapore, Hong Kong, the UK, Brunei and Belize.
Mr L. Ghising was discharged on 6 February 1992, after 23 years service, on completion of his engagement. His rank on discharge was Warrant Officer Class 1. Mr L. Ghising's evidence was that he had served Britain with dedication and loyalty. His commanding officer assessed his military conduct as ‘Exemplary’ and described him as ‘extremely competent’ and ‘extremely hardworking, honest and loyal’.
Mr L. Ghising's evidence, which was not challenged by the Respondent, was that he wished to settle in the UK soon after his discharge, but he 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. If he had been permitted to settle in the UK in 1991, he would have been accompanied by his wife, his daughter, and the Appellant, who would have been 6 years old. It was 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 (‘ILR’).
From 2004 onwards, the British Government began to revise its stance towards Gurkha veterans. It was only in 2009 that Mr L. Ghising became eligible to apply for entry. He did so, and was granted indefinite leave to enter the UK on 4 August 2009. His wife was granted indefinite leave to enter the UK on 16 September 2009. They arrived in the UK on 25 September 2009.
In the meantime, in 2007, the Appellant came to the UK from Nepal to study. He entered the UK on 14 January 2007 and was given leave to enter as a student until 31 December 2010. He has now completed two courses in Business Management at colleges in London. In January 2012, he enrolled on an MBA course at the University of East London which concludes in June 2013. If his parents had not settled in the UK, it is likely that, on completion of his studies, he would have returned to Nepal to live with his parents, as his sister did.
The Appellant has always been financially dependant upon his parents. His father pays his tuition fees and supports him.
Mr L. Ghising is self-employed, and owns a manpower consultancy business, which is now wholly based in the UK. He no longer has...
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