Jitendra Rai v Entry Clearance Officer, New Delhi
| Jurisdiction | England & Wales |
| Judge | Lord Justice Lindblom,Lord Justice Henderson,Lord Justice Beatson |
| Judgment Date | 28 April 2017 |
| Neutral Citation | [2017] EWCA Civ 320 |
| Docket Number | Case No: C5/2014/4022 |
| Court | Court of Appeal (Civil Division) |
| Date | 28 April 2017 |
[2017] EWCA Civ 320
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL
(IMMIGRATION AND ASYLUM CHAMBER)
DEPUTY UPPER TRIBUNAL JUDGE LEVER
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Beatson
Lord Justice Lindblom
and
Lord Justice Henderson
Case No: C5/2014/4022
Mr Raphael Jesurum (instructed by Howe & Co. Solicitors) for the Appellant
Ms Carine Patry (instructed by the Government Legal Department) for the Respondent
Hearing date: 23 March 2017
Judgment Approved by the court for handing down (subject to editorial corrections)
Introduction
Did the Upper Tribunal (Immigration and Asylum Chamber) err in its approach to the right to respect for family life under article 8 of the European Convention on Human Rights when redetermining the appeal of a citizen of Nepal who, as the adult son of a former Gurkha soldier, had been refused leave to enter the United Kingdom? That is the central question in this appeal. It falls to be considered on principles of law that are well established and familiar.
The appellant, Jitendra Rai, appeals against the determination of the Upper Tribunal (Deputy Upper Tribunal Judge Lever), promulgated on 5 September 2014, dismissing his appeal against the decision of the respondent, the Entry Clearance Officer, New Delhi, on 3 January 2013, to refuse his application for leave to enter. The appellant's appeal against that decision had succeeded before the First-tier Tribunal (First-tier Tribunal Judge Majid) on 28 March 2014. The First-tier Tribunal's decision was set aside by Deputy Upper Tribunal Judge Lever on 30 June 2014. He heard the appellant's appeal afresh on 7 August 2014. Permission to appeal against his decision dismissing the appeal was granted by Bean L.J. on 26 October 2015.
The issues in the appeal
There were originally three grounds of appeal. All three related to the Upper Tribunal's consideration of the appellant's right to respect for his family life under article 8 of the Convention. The first ground asserted that the Upper Tribunal unfairly deprived the appellant of the opportunity to respond to a point not raised in the respondent's appeal, and on which permission to appeal had not been granted – namely the First-tier Tribunal's finding that there was family life. That ground is no longer pursued, and I need say no more about it. In the second ground it is argued that the Upper Tribunal went wrong in its approach to article 8(1), in two respects: first, in failing to take into account relevant evidence about the appellant's family life, and second, in failing to direct itself properly on the law relating to family life, and in particular "family life between adults". The third ground contends that the Upper Tribunal failed to follow relevant authority on proportionality – including the decision of this court in R. (on the application of Gurung and others) v Secretary of State for the Home Department [2013] 1 W.L.R. 2546, and the decisions of the Upper Tribunal in Ghising and others (Gurkhas/BOCs – historic wrong – weight) [2013] UKUT 567 (IAC) and Ghising (family life – adults – Gurkha policy) [2012] UKUT 160 (IAC).
Those two remaining grounds were developed in the skeleton argument of the appellant's counsel, Mr Raphael Jesurum, for the hearing in this court, and developed still further in the course of oral argument before us. Two main issues emerged. First, did the Upper Tribunal judge misdirect himself in considering whether article 8 was engaged in the particular circumstances of this case, and did he give clear and adequate reasons for the conclusion he reached on that question? And second, if he concluded that article 8 was engaged, was his approach to the proportionality assessment flawed?
The facts
The essential facts are not in dispute.
The appellant was born in Nepal on 1 January 1986. He is the youngest of his parents' six children. His father, Birkha Bahadur Rai, was born in Nepal on 1 January 1941, enlisted in 7 Gurkha Rifles as a boy in 1956, fought in the conflicts in Borneo and Malaya, and was honourably discharged in August 1971.
In October 2004 paragraphs 276E to 276K of the Statement of Changes in Immigration Rules (1994) (HC 395, as amended) were introduced by paragraph 15 of the Statement of Changes in Immigration Rules (HC 1112), according to Gurkha veterans discharged on or after 1 July 1997 the right to settle in the United Kingdom. In December 2004 paragraphs 276R to 276AC extended this right to their dependants. Provision was made in a policy outside the Immigration Rules for settlement by Gurkha veterans discharged before 1 July 1997, if they had existing ties with the United Kingdom. That policy also allowed for the exercise of discretion to grant an application for settlement in the United Kingdom by a dependant of the family unit aged 18 years or over, and listed five factors to be considered in assessing whether settlement was appropriate. In 2009 a further policy outside the rules was introduced, which indicated that dependent children aged over 18 would not normally have the discretion exercised in their favour, and would be expected to qualify for leave to enter or remain in the United Kingdom under the relevant provisions of HC 395, as amended, or under article 8 of the Convention, unless there were exceptional circumstances in the particular case. The five factors listed in the 2004 policy were re-stated. The 2009 policy was superseded in March 2010 by a policy in the same terms, except that it no longer contained the five listed factors (see paragraphs 2 to 11 of the judgment of the court in Gurung). The 2010 policy was upheld as lawful in Gurung (see paragraphs 20 to 26 of the judgment of the court).
The appellant's father was granted indefinite leave to enter on 13 May 2010, and came to the United Kingdom on 26 June 2010. His mother, Madhu Maya Rai, was granted indefinite leave to enter, as his father's spouse, on 28 July 2011, and came to the United Kingdom on 17 February 2012. On 2 October 2012 the appellant, then 26 years old, applied for entry clearance to settle in the United Kingdom as his father's dependant. That application was refused on 3 January 2013. In its decision of 28 March 2014 the First-tier Tribunal allowed the appellant's appeal both under the Immigration Rules and on article 8 grounds.
The Upper Tribunal's decision
On the respondent's appeal from the First-tier Tribunal the Upper Tribunal judge, in his decision of 30 June 2014, said it was "agreed and conceded that the Appellant did not meet the [requirements] of the Immigration Rules and an appeal could only have been allowed outside of the Rules" (paragraph 8). The First-tier Tribunal judge had been "obliged to consider whether he needed to look at this case outside of the Rules in terms of Article 8 of the ECHR", but had not done so (paragraph 10). He had failed to "provide adequate reasons … to justify his conclusion that there was family life with the adult Appellant son and such that it was likely to be seriously affected by the Home Office decision" (paragraph 11). If he had applied "the case law and policies that deal with Gurkhas", he might have concluded "that there were compelling circumstances and good grounds for granting leave to remain outside of [the] Rules". In the light of the decision in Ghising (family life – adults – Gurkha policy), the Upper Tribunal judge acknowledged that "each case is fact sensitive placing an obligation on a judge to identify the nature of the family life asserted", and said this had "not necessarily been adequately done in this case …" (paragraph 12).
In his determination promulgated on 5 September 2014 the Upper Tribunal judge said it had been "agreed that there were no issues arising in terms of the facts of the case …" (paragraph 6 of the determination). The appeal had therefore proceeded on the basis of the submissions made on either side. On behalf of the respondent it was submitted that "… even if one looked outside of the Rules this was not an exceptional case and exclusion was proportionate" (paragraph 7). For the appellant it was submitted that he "continued to live in the family home and is reliant upon his father both emotionally and financially", that the case therefore "merited consideration outside of the Rules", that "family life was engaged" and that "applying the ruling in [ Ghising (family life – adults – Gurkha policy)] that could tip the balance in favour of the Appellant" (paragraph 8).
In Gurung, as the Upper Tribunal judge acknowledged, the Court of Appeal had held "that the historic injustice accorded to Gurkha veterans was one of the factors to be weighed in the proportionality balancing exercise under Article 8 of the ECHR against the need to maintain a firm and fair immigration policy". The court had, he said, "noted that the question whether an individual adult child enjoyed family life depended on a careful consideration of all the relevant facts of the particular case …", and in one of the cases it was considering it "had concluded that no error of law had been made where the [First-tier] Tribunal had found that although the usual emotional bond between parent and their children [was] present the requisite degree of emotional dependence for the purposes of Article 8 was absent" (paragraph 12). He also referred to the Upper Tribunal's decision in Ghising and others (Gurkhas/BOCs – historic wrong – weight). There, he said, the Upper Tribunal had found that "where Article 8 was engaged and before [sic] the historic wrong the Appellant would have been settled in the UK long ago this would ordinarily determine the outcome of the Article 8 proportionality assessment in an Appellant's favour, where the...
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