SG (Child of Polygamous Marriage) Nepal

JurisdictionUK Non-devolved
JudgeMr Justice Blake,Blake J,Dawson UTJ,Dawson
Judgment Date09 July 2012
Neutral Citation[2012] UKUT 265 (IAC)
CourtUpper Tribunal (Immigration and Asylum Chamber)
Date09 July 2012

[2012] UKUT 265 (IAC)

Upper Tribunal

(Immigration and Asylum Chamber)

THE IMMIGRATION ACTS

Before

Mr Justice Blake, PRESIDENT

UPPER TRIBUNAL JUDGE Dawson

Between
Eco New Delhi
Appellant
and
SG
Respondent
Representation:

For the Appellant: Ms B Asanovic, instructed by Howe and Co

For the Respondent: Miss C Gough, Senior Home Office Presenting Officer

SG (child of polygamous marriage) Nepal

  • i) Educational advantages and economic betterment, which might be enjoyed by a child, if admitted to the United Kingdom, are not compelling considerations to make that child's exclusion undesirable, where the biological mother has cared for the child, and will continue to do so, in the country of origin.

  • ii) There is a legitimate aim in excluding from admission to the United Kingdom a woman who is a party to an actually polygamous marriage and that aim justifies the indirect effect of that exclusion on the child of such a marriage, in that it will be more difficult for the child to satisfy the immigration rules relating to sole responsibility and circumstances making exclusion of the child undesirable.

  • iii) The policies adopted by the Secretary of State to facilitate admission of Ghurkha former soldiers and their dependants were not intended to give more favourable treatment to children born of an actually polygamous marriage.

  • iv) Paragraph 296 of HC 395, as presently applied, does not prevent the admission of such children and would probably be contrary to Articles 8 and 14 ECHR if it did.

  • v) In these circumstances it is not unreasonable to expect a sponsor to choose between coming to the United Kingdom with part of his family or remaining in Nepal with all its members, where there has been no previous residence and establishing of family life in the United Kingdom.

  • vi) The wishes of the child and both parents are relevant to ascertaining what her best interests are in the context of an application for admission to the United Kingdom but are not decisive of the proportionality balance.

  • vii) The proportionality balance in such cases is a fact sensitive one rather than determined by the rules.

DETERMINATION AND REASONS
Introduction
1

SG is a child born on 9 January 2003 in Nepal. She was the appellant below and the respondent before us. We shall refer to her as the claimant. Her father is SB Gurung and her mother is his third wife P Gurung. Her father's first marriage was terminated by divorce. His second marriage to S Gurung is still subsisting and there is a son born to that marriage. At the time of the determination of this appeal the father, both wives, the claimant and her step sibling are all residing together in the father's house in Nepal.

2

The father served in the Brigade of Ghurkhas from 1969 to 1985. At the time he completed his military service there was no opportunity for him to settle in the United Kingdom. As a result of various changes in policy in recent years, there are now immigration rules providing for a right of settlement in the United Kingdom for members of the Brigade of Ghurkhas who were decommissioned after 1997 and various policies that make provision for those who were decommissioned before that date.

3

In 2009 the father applied for entry clearance to come to the United Kingdom. The application was successful and he subsequently came to the United Kingdom briefly in July 2010. His wife S Gurung and their son have also been granted entry clearance, in the latter case following an appeal against an earlier refusal.

4

The claimant's application was refused on 29 October 2010, in the following terms:

“You are living with both of your parents under the same roof in Nepal. In considering your application I am not satisfied that your sponsoring parent has been able to show that he has been solely responsible for exercising parental care of you for a substantial period. Therefore I am not satisfied that your father has sole responsibility for you or that you meet the requirements of the (Rules). Your mother has not applied for settlement. Your decision to apply to settle in the United Kingdom was one of choice, not necessity. You live with both of your parents and your step mother and step brother. You attend school and there is no evidence to suggest that you do not have a reasonable standard of living. You have (?) cited or provided evidence of any medical condition. You have not demonstrated serious and compelling family or other considerations which would make your exclusion from the United Kingdom undesirable. … I have also taken account of the provisions of Article 8 of the Human Rights Act I consider that refusing this application is justified and proportionate in the exercise of the immigration control. I note that refusing this application will not interfere with family life for the purposes of Article 8.1 which you can enjoy in Nepal.”

It would appear that the word “not” should be inserted between “have” and “cited” as no such evidence was submitted.

5

The claimant appealed against this decision. On 22 June 2011 Judge Radcliffe allowed her appeal with considerable misgivings because he concluded that on the facts the father did have sole responsibility for the child for the following reasons:

“The fact is that he is the only person who has an income. His two wives and two children … are entirely dependant on him. He is the person who makes all the important decisions in the household. He decides what schools they go to and which religious beliefs are appropriate for them. He guides them, no doubt, in a number of ways and he is his daughter's mentor until she gets married… The sponsor says that he cannot leave his daughter behind because the emotional and financial dependency on him by his daughter has created a tie between them that goes beyond that of a normal adult child and parent relationship.”

6

The entry clearance officer appealed to the Upper Tribunal against this decision on the basis that the judge had failed to apply the decided case law on the meaning of sole responsibility summarised in the decision of GD (Paragraph 297 (i) (e): “Sole responsibility”) Yemen [2006] UKAIT 49.

7

On the 23 October, 2011 a differently constituted panel of this Tribunal concluded that there was indeed an error of law because the judge had recognised that the claimant's mother must “play a significant and loving part in the upbringing of her daughter, even though the sponsor may made the strategic decisions effecting the life style of his daughter.” That being so there was clearly shared responsibility between the parents even though the sponsor is the sole bread winner and takes all the major decisions in the child's life. However, it also concluded that a further hearing was necessary to examine whether Article 8 required the appeal to be allowed having regard in particular to the best interests of the child and the impact on Article 8 decision making of section 55 of the Borders, Citizenship and Immigration Act 2009 and the decision of the Supreme Court in ZH (Tanzania) [2011] UKSC 4.

8

Supplementary witness statements were signed in January 2012 the effect of which may be summarised as follows:–

“It is in the appellant's best interest to continue her education in the United Kingdom. She is a bright child and would benefit from a better standard of education such as in the United Kingdom. I want the best for my daughter”.

  • i. The claimant regards S Gurung as her “big mother” and P Gurung as her “little mother”.

  • ii. The claimant wishes to live in the United Kingdom with her father and big mother.

  • iii. P Gurung understands that she is not eligible for settlement in the United Kingdom as the second wife is the one chosen by her husband for settlement.

  • iv. P Gurung agrees and approves her husband's decision to settle in the United Kingdom. She says:

  • v. It would be detrimental to the claimant's development to remain in Nepal with her mother because education and employment opportunities are extremely limited and the options for her education and standard of living in Nepal are not as good.

  • vi. P Gurung envisages that her contact would be maintained with the claimant by visits by her to the United Kingdom and by the appellant to Nepal during the school holidays.

  • vii. The claimant's father stresses that the cultural norms in Nepal mean that it is perfectly acceptable for one husband to have two wives. Fathers take the important decisions in daughters' lives and he sincerely wishes his daughter to be raised in the United Kingdom where she would have a better standard of living.

  • viii. There is supporting evidence from the local school teacher at the claimant's school in Kathmandu that she would benefit from receiving a better education and quality of life in the United Kingdom.

9

Before us Ms Asanovic submitted in summary:–

  • i. Even where a non-sponsoring mother was caring for her child there could be exceptional circumstances justifying the conclusion that responsibility for the child's welfare was the sole prerogative of the father.

  • ii. Having regard to the cultural context which the family had lived since the claimant's birth and the fact that the majority of those she enjoyed her family life with were entitled and intending to come to the United Kingdom, there were compelling reasons why her exclusion from the United Kingdom was undesirable within the meaning of the Immigration Rules.

  • iii. The wishes of both parents reflected the best interests of the child.

  • iv. The decision was a disproportionate and unjustified interference with the right to respect for that families life and therefore contrary to Article 8 ECHR.

Sole Responsibility
10

There is no substance to the claimant's first submission, for the reasons given by the Upper Tribunal in setting aside decision of Judge Radcliffe. Where a child's natural parent has cared for and continues to care for the child,...

To continue reading

Request your trial
27 cases
  • MA and SM (Zambrano: EU children outside EU)
    • United Kingdom
    • Upper Tribunal (Immigration and Asylum Chamber)
    • 19 Julio 2013
    ...change in place of residence where a child has grown after a number of years when socially aware is important, [see also SG (child of polygamous marriage) Nepal [2012] UKUT 265 (IAC) [2012] Imm AR 939]. 61. Mr Deller refers in his skeleton argument to the recent decision of the Court of App......
  • Upper Tribunal (Immigration and asylum chamber), 2016-08-19, OA/17176/2013
    • United Kingdom
    • Upper Tribunal (Immigration and Asylum Chamber)
    • 19 Agosto 2016
    ...where a child has grown up for a number of years when socially aware is important: see also SG (child of a polygamous marriage) Nepal [2012] UKUT 265 (IAC) [2012] Imm AR The difficulty I have in this particular case is applying those legal principles to the facts given the lack of evidence.......
  • Laurent Wa Mundeba v Entry Clearance Officer ? Nairobi
    • United Kingdom
    • Upper Tribunal (Immigration and Asylum Chamber)
    • 22 Enero 2013
    ...in the place of residence where a child has grown up for a number of years when socially aware is important: see also SG (child of a polygamous marriage) Nepal [2012] UKUT 265 (IAC) [2012] Imm AR 939. DETERMINATION AND REASONS Introduction 1 The appellant, who is a minor born 14 December ......
  • Upper Tribunal (Immigration and asylum chamber), 2013-07-19, [2013] UKUT 380 (IAC) (MA and SM (Zambrano: EU children outside EU))
    • United Kingdom
    • Upper Tribunal (Immigration and Asylum Chamber)
    • 19 Julio 2013
    ...where a child has grown after a number of years when socially aware is important, [see also SG (child of polygamous marriage) Nepal [2012] UKUT 265 (IAC) [2012] Imm AR Mr Deller refers in his skeleton argument to the recent decision of the Court of Appeal in SS (Nigeria) v SSHD [2013] EWCA ......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT