Upper Tribunal (Immigration and asylum chamber), 2015-05-14, OA/00417/2014
| Jurisdiction | UK Non-devolved |
| Date | 14 May 2015 |
| Published date | 10 July 2015 |
| Hearing Date | 18 February 2015 |
| Status | Unreported |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Appeal Number | OA/00417/2014 |
Appeal Number: OA/00417/2014
IAC-TH-LW-V1
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: OA/00417/2014
THE IMMIGRATION ACTS
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Heard at Field House |
Determination Promulgated |
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On 18 February 2015 |
On 14 May 2015 |
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Before
THE HONOURABLE MRS JUSTICE THIRLWALL DBE
UPPER TRIBUNAL JUDGE PINKERTON
Between
miss namita shahi
(ANONYMITY DIRECTION not made)
Appellant
and
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:
For the Appellant: Mr G Duncan of Counsel
For the Respondent: Mr I Jarvis
REASONS FOR FINDING THAT THE TRIBUNAL MADE AN ERROR OF LAW, SUCH THAT ITS DECISION FALLS TO BE SET ASIDE
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The appellant is a citizen of Nepal who was born on 29 December 1988. Her father is a retired British Gurkha. He enlisted with the Brigade of Gurkhas in 1966. His certificate of service dated 22 May 1990 stated that his military conduct was exemplary and that he had completed 24 years loyal service in the British Army. The appellant’s parents came to the UK in August 2011. She applied for entry clearance to settle in the UK with her parents. This was refused by the Entry Clearance Officer.
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The appellant appealed the decision and her appeal was heard before First-tier Tribunal Judge Chohan on 30 September 2014. The appeal was dismissed. Grounds of Appeal are dated 20th November 2014.
The Permission Grant
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Permission to appeal was granted on the basis that:-
“It is arguable that there was a material error of law that could have made a material difference to the outcome for the reasons given in the application which I will not simply repeat”.
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This is not an approved form of grant in this jurisdiction. The President of the Upper Tribunal (IAC) reiterated in MR (permission to appeal: Tribunal's approach) Brazil [2015] UKUT 00029 (IAC) that when granting permission to appeal to the Upper Tribunal, it is unsatisfactory merely to state that the applicant's grounds are arguable. The requirement, emphasised in Nixon (permission to appeal: grounds) [2014] UKUT 368 (IAC), to engage with each and every ground of application, need not involve anything of an unduly elaborate, burdensome or analytical nature. The reasons for granting or refusing permission to appeal, in whole or part, in any given case will almost invariably be capable of being expressed in a concise and focused manner.
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Stripped to their essentials the grounds are that the judge erred in law in
i) adopting a confused and incorrect approach to the proportionality exercise required under Article 8
ii) erroneously purporting to adopt a test of exceptionality (see paragraph 23)
iii) having found that there was family life between the appellant and her parents then found that she was living an independent life from her family, notwithstanding the fact that she is financially reliant on her father
iv) finding that family life could be maintained through visits and modern means of communication the judge failed to have any or any adequate regard to paragraph 113 of Ghising (family life - adults - Gurkha policy) [2012] UKUT 00160 (IAC) .
As a result he came to the wrong conclusion in dismissing the appeal.
Rule 24 Response
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A Rule 24 response dated 9 January 2015 refers to the judge noting that the parties have not lived together since 2005 when the appellant, 24 years of age at the date of decision, went to study dentistry in India and who leads an independent life. Essentially the respondent disagrees with the finding that there was family life.
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Mr Jarvis explained that the respondent had also applied to the First-tier Tribunal out of time for permission to appeal in order to challenge the finding that family life is engaged. This struck us as an extraordinarily cumbersome procedure. Mr Jarvis explained that it was necessary in light of the decision in EG and NG (UT rule 17: withdrawal; rule 24; scope [2013] UKUT 143. He understood the decision to require a respondent to seek permission to appeal out of time where he seeks to uphold a decision for reasons other than those given by the FTT judge. That is not correct. The respondent is content with the decision of the FTT judge, but she disagrees with the route he took to reach his decision. Litigants are not permitted to appeal a decision with which they agree. We have reminded ourselves of the decision in AN (Only loser can appeal) Afghanistan [2005] UKIAT 00097. Given our ultimate conclusions in this case we have not asked the parties for their views on that decision. In our judgment the case the respondent wishes to advance here may properly be advanced by operation of Rule 24(3)(f). There is no need for a separate appeal to the FTT and, as we said at the hearing, the application for permission should be withdrawn. We understand that has now been done. We should add that Mr Duncan, for the appellant, did not seek to persuade us that a notice of appeal was necessary in order for us to consider the issue raised by the respondent.
The Law
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For the appellant to succeed in her application for entry clearance to settle in the United Kingdom as the adult dependent daughter of an ex-Gurkha soldier she had to satisfy all the requirements set out in paragraphs E-ECDR.2.1. to 3.2. of the Immigration Rules. It was not argued on behalf of the appellant that she was able to meet those Rules. There is no complaint about the FTT judge’s finding that she could not satisfy the Rules. That decision was correct.
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Her inability to meet the rules is not the end of the matter. Consideration also has to be given to the applicability of the respondent’s policy as outlined in IDIs (Immigration Directorate Instructions) Chapter 15 Section 2A which is guidance provided in relation to applications for leave (in this case) as the child of a Gurkha discharged from service before 1 July 1997. 13.2 of those IDIs states as follows:-
“13.2 Dependants over the age of 18
Dependants over the age of 18 of foreign and Commonwealth HM Forces members (including Gurkhas) who are not otherwise covered in this guidance would normally need to qualify for settlement in the UK under a specific provision of the Immigration Rules.
In exceptional circumstances discretion may be exercised in individual cases where the dependant is over the age of 18.
...”
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Also of relevance is Annex A of the IDIs which states as follows:-
“Annex A
Discretionary Arrangements for Former Gurkhas Discharged Before 1 July 1997
In May 2009 the Home Secretary announced that any Gurkha with more than four years service who had been discharged from the Brigade of Gurkhas before 1 July 1997 would be eligible for settlement in the UK.
Applications from former members of the Brigade of Gurkhas discharged before 1 July 1997 should be considered for the exercise of discretion under this guidance. These discretionary arrangements are supplementary to the existing provisions of the Immigration Rules.
This scheme recognises the unique nature of the service given by the Brigade of Gurkhas and is offered to them alone on an exceptional basis. It applies to those who served in the Brigade of Gurkhas from January 1948 when it became part of the British Army. Applications from former Gurkhas who were discharged before January 1948 should be considered on a case by case basis.
Discretionary settlement criteria
Settlement applications from former members of the Brigade of Gurkhas who were discharged before 1 July 1997 will normally be approved, provided the former Gurkha served for at least 4 years in the Brigade.
…
Dependants
Discretion will normally be exercised and settlement granted in line with the main applicant for spouses, civil partners, unmarried and same-sex partners and dependant children under the age of 18.
Children over the age of 18 and other dependent relatives will not normally qualify for the exercise of discretion in line with the main applicant and would be expected to qualify for leave to enter or remain in the UK under the relevant provisions of Article 8 of the Human Rights Act. Exceptional circumstances may be considered on a case by case basis. For more information on the exceptional circumstances in which discretion may be exercised see Section 13.2.”- (13.2 is set out at paragraph 9 above).
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Thus, in order to succeed the appellant must show that exceptional circumstances apply in accordance with the policy or that she can succeed under Article 8 ECHR. Otherwise the appeal will fail. As to the policy the Court of Appeal in Gurung & Ors [2014] EWCA Civ 8 at paragraph 22 said this:-
“22. It is inherent in any policy which permits a departure from a general rule in exceptional circumstances that there may legitimately be scope for different views as to whether there are exceptional...
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