Milan Gurung v The Entry Clearance Officer, New Delhi

Hearing date: 9 December 2015

THE FACTS AND THE PROCEDURAL HISTORY

The Appellant is a national of Nepal, where he was born on 27 October 1987. On 26 September 2009 his father was granted entry clearance to the U.K. for settlement on the basis of his former service as a Gurkha in the British Army, and he came to this country shortly thereafter. The Appellant and his mother had in the meantime applied for entry clearance to settle here with him. The Appellant was at that point aged 21. He is his parents' only son, though they have two daughters.

The Appellant's mother's application for entry clearance was accepted, on 27 April 2010, though she did not leave Nepal straightaway. His own application was refused by a decision dated 16 June 2010. The reasoning of the Entry Clearance Officer ("ECO") can be summarised as follows:

(1) He found that the Appellant did not qualify under the Immigration Rules. Since no issue now arises about that aspect of his decision I need not set out his reasons.

(2) He then considered the Appellant's application under what he understood to be the applicable policy for adult dependants of members of the Armed Forces, which he understood to require that "exceptional circumstances" be shown. Again, I need not set out his reasoning in detail. In summary, he found that there was nothing exceptional in the Appellant's case. He noted that the Appellant was an adult; that he was living with his mother and his aunt in Nepal, and that even if his mother left to join his father he would still be living in the same household with a member of the family; that there was no evidence of any financial dependence on his father; and that he also had grandparents and two uncles in Nepal.

(3) Finally, he considered whether the Appellant might have a separate claim under article 8 of the European Convention of Human Rights. He held that article 8 was not engaged because the Appellant's relationship with his parents did not go beyond "the normal emotional ties". But he went on to say that if he was wrong about that:

"… I consider that refusing this application is proportionate in the exercise of firm immigration control. In particular, I note that your parents chose to apply for settlement when you and your sisters were already adults. Even if your parents were to travel to the UK there would be no bar to them returning to Nepal either permanently or temporarily. Family life can continue as it may have done and without interference by this decision."

The Appellant's mother left Nepal on 28 July 2010 and has settled in the U.K. with his father. The Appellant continued to live with his aunt in Nepal.

The Appellant appealed to the First-tier Tribunal against the refusal of entry clearance. On 16 December 2010 IJ Elvidge allowed his appeal on the basis that the ECO had failed to apply a more favourable policy, referred to as SET12, which remained in force at the material time. I need not set out its detailed terms. It itemises a number of factors which an ECO should consider, and concludes:

"If one or more of the factors listed above are present, the ECO may exercise discretion and grant entry clearance for settlement in the UK."

Judge Elvidge believed that he was entitled to exercise that discretion himself, and he did so by directing that leave to enter for settlement purposes should be granted. Crucially, as regards the issue which we have to decide, he did not deal with the Appellant's article 8 claim. Presumably he thought that it was unnecessary for him to do so in view of his decision on the policy issue; but the subsequent history of the proceedings is an object lesson in the risks of that approach.

The ECO appealed to the Upper Tribunal. By a determination promulgated on 3 November 2011 UTJ Eshun held that SET12 was indeed the applicable policy and that the ECO had accordingly approached the application on a wrong basis; but she held that Judge Elvidge had been wrong to exercise the discretion himself. She thus allowed the appeal to the extent that the Appellant's application was remitted to the ECO for reconsideration on the correct basis.

On 12 March 2012 the ECO made a fresh decision pursuant to the order of the Upper Tribunal. (It appears that a different individual was responsible for the decision.) He again refused the Appellant entry clearance. His reasoning can be summarised as follows:

(1) He held that, even applying SET12, the Appellant was not entitled to an exercise of discretion in his favour. I need not set out his reasoning, but I should note that it focused on his circumstances at the time of the original decision: it referred expressly to "the time of your application in 2009" and also referred to him living "in your family home with your mother and auntie" (his mother of course not having left until after the date of the first decision).

(2) He said that he was obliged to "re-visit" the article 8 claim. He decided that article 8 was not engaged, but also that, even if it was, refusal of the Appellant's application was not disproportionate. As regards the issue of proportionality, his language is identical to that of the first decision; but as regards whether article 8 is engaged at all it is somewhat differently worded. For reasons that will appear, it is relevant to consider the date at which he considered the article 8 claim. Although he does not address the point explicitly, the natural reading seems to me to be that he did so on the basis of the circumstances as they were at the time of his decision, i.e. in 2012. That might or might not be implicit in the reference to "re-visiting" the claim. But what seems to me decisive is that he refers to the Appellant as having family life in Nepal with his aunt, grandparents and uncles, making no mention of his mother. That can only have been deliberate, given that the Appellant's mother had been expressly referred to when he was considering the claim under SET12; and the difference must reflect the fact that she had left for the U.K. in the meantime.

The Appellant appealed against that decision. By a determination promulgated on 8 May 2013 FTTJ Hembrough dismissed the appeal. I can summarise his reasons as follows:

(1) He considered first the claim under article 8. He observed that there was some uncertainty about whether he was considering an appeal against the first or second decision of the ECO. He expressed the view that it was the latter, but he said that the point is in any event academic by virtue of section 85 (4) of the Immigration, Asylum and Nationality Act 2002, which allowed a tribunal to consider "evidence which concerns a matter arising after the date of the decision"; so that even if the appeal was against the first decision he could consider subsequent events. (He was in fact wrong about that – see para. 13 (3) below.)

(2) Consistently with that conclusion, he considered the article 8 claim as at the date of the second decision of the ECO (subject to the wrinkle noted below). He in fact noted that the language of the 2010 and 2012 decisions was very similar, but he nevertheless pointed out (at para. 29) that "… by 12 March 2013 [ sic] time had moved on and circumstances had changed". The reference to 12 March 2013 was a slip: the second ECO decision was, as I have said, made on 12 March 201 2. However the Appellant does not suggest that anything turns on this mistake: as will appear, the issue is whether the Judge should have considered the position as at 2010, and the difference between 2012 and 2013 is immaterial.

(3) As regards the question whether article 8 is engaged in the Appellant's case the Judge directed himself by reference to the decision of the Upper Tribunal (Lang J and UTJ Jordan) in Ghising v Secretary of State for the Home Department [2012] UKUT 00160 (IAC), which contains a thorough review of the case-law about the application of article 8 in the case of adult family members and concludes that there are no blanket rules and that each case should be decided on the basis of a careful analysis of its particular facts.

(4) The Judge's primary conclusion was that article 8 was not engaged. Since that conclusion is not now challenged I need not set out the reasoning in any detail. In bare outline, he acknowledged that the evidence of the Appellant's father was that there was a particularly close emotional bond between the Appellant and his mother; but he said (at para. 31) that:

"the fact of his mother having chosen to settle in the UK in 2010 [is] indicative of a view on the part of both the Appellant and his parents that he was capable of looking after himself in Nepal albeit with the benefit of some financial assistance from the UK and that the separation would not be prejudicial to his emotional welfare. Frankly this is nothing more than one would expect of a normal, healthy 25-year old adult male even when regard is taken of the cultural context."

That point was then developed in the following paragraphs. The Appellant was fit and there was no evidence that he was incapable of finding work and supporting himself.

(5) At para. 35...