Upper Tribunal (Immigration and asylum chamber), 2018-06-20, HU/03655/2015
| Jurisdiction | UK Non-devolved |
| Date | 20 June 2018 |
| Published date | 12 July 2018 |
| Hearing Date | 06 June 2018 |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Status | Unreported |
| Appeal Number | HU/03655/2015 |
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: HU/03655/2015
THE IMMIGRATION ACTS
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Heard at Field House |
Decision & Reasons Promulgated |
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On 6 June 2018 |
On 20 June 2018 |
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Before
DEPUTY UPPER TRIBUNAL JUDGE HUTCHINSON
Between
Mr Suren Rai
(anonymity direction NOT MADE)
Appellant
and
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:
For the Appellant: Mr R Jesurum, Counsel, instructed by Everest Law Solicitors
For the Respondent: Ms J Isherwood, Senior Home Office Presenting Officer
DECISION AND REASONS
Background
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The appellant is a citizen of Nepal born on 6 June 1986. The appellant is now 32 years of age. The appellant submitted an application on 3 July 2015 for entry clearance to settle with his father, Mr Premjit Rai, an ex-Gurkha soldier. The respondent refused that application on 14 July 2015. In a Decision and Reasons promulgated on 19 April 2017, Judge of the First-tier Tribunal Kainth dismissed the appellant’s human rights ground appeal.
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The appellant appeals with permission that it was at least arguable that the weight to be placed on the maintenance of immigration control under Section 117B should reflect the historic injustice issue and that the judge failed to properly apply the principles in Ghising & Ors (Ghurkhas/BOCs: historic wrong; weight) [2013] UKUT 567 (IAC).
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The respondent in the Rule 24 response, dated 4 May 2018, indicated that the respondent did not oppose the appellant’s application and invited the Tribunal to determine the appeal with a fresh oral hearing and to consider whether the appellant’s Article 8 ECHR claim should succeed.
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Ms Isherwood submitted that the refusal was not disproportionate. She submitted that the medical evidence only dated from 2011 and that if you reviewed the telephone calls, as she had, charging records showed that they were not in contact every day. She referred to various pieces of evidence including that the appellant had stated that he was scared whilst in the house but there was no reason given for this.
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Those submissions in my view did not address, the fundamental issues in this case: given that Ms Isherwood accepted that both the respondent Entry Clearance Manager and the First-tier Tribunal Judge had accepted that there was family life in this case, the issue to be determined was the proportionality of the refusal. Ms Isherwood did not therefore adequately address the jurisprudence, including what was said in Ghising including that the weight to be given to the historic injustice ‘will normally require a decision in the Appellant’s favour‘.
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Ms Isherwood submitted that Rai v Entry Clearance Officer, New Delhi [2017] EWCA Civ 320 should be narrowly interpreted in respect of Section 117 of the Nationality, Immigration and Asylum Act. That cannot be correct.
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Rai provides as follows:
“55. With effect from 28 July 2014, Section 117A of the Nationality, Immigration and Asylum Act 2002, requires that where a court or Tribunal is considering the public interest, and whether an interference with Article 8 rights is justified, it must have regard, in cases not involving deportation, to the matters set out in Section 117B, including that the maintenance of effective immigration control is in the public interest (Section 117B(1)), that it is in the public interest that those seeking entry into the United Kingdom speak English (Section 117B(2)), and that it is in the public interest that those seeking entry be financially independent (Section 117B(3)).
56. Mr Jesurum pointed out that the Upper Tribunal Judge did not consider the matters arising under those provisions of the 2002 Act. He submitted, however, that in view of the ‘historic injustice’ underlying the appellant’s case, such considerations would have made no difference to the outcome, and certainly no difference adverse to him. Ms Patry submitted that if the Upper Tribunal’s decision was otherwise lawfully made, the considerations arising under Section 117A and B could not have made a difference in his favour.
57. The submissions made on either side seem right. Certainly, if the Upper Tribunal Judge’s determination is in any event defective as a matter of law, which in my view it is, I cannot see how the provisions in Section 117A and B of the 2002 Act can affect the outcome of this appeal.”
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Lord Justice Lindblom was agreeing that whilst a lawful decision by the respondent could not be overturned with regard to any considerations under Sections 117A and B, equally the Court of Appeal accepted Mr Jesurum’s submission that in view of the “historic injustice” such considerations would have made no difference to the outcome.
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Ms Isherwood was, in my view, attempting to reopen the family life finding in this appeal by the back door by suggesting family life was not particularly strong. Those submissions were, at best, questionable. For example, although she relied on the fact that the last medical evidence produced was from 2011, she did not dispute Mr Jesurum’s reply that such evidence indicated that the appellant had lost an eye and included photographs of the empty eye socket. It is difficult to see what additional medical evidence would be required in those circumstances.
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I preserve the First-tier Immigration Judge’s finding of family life. I turn to the proportionality exercise, having answered the initial Razgar questions in the affirmative.
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It is undisputed that the appellant’s father and sponsor served in the Brigade of Gurkhas for eleven years, including active service in the Falklands War, and was discharged in 1988. He was denied the option to settle in the UK at that time. The sponsor was eventually granted settlement in 2010, the appellant having turned 18 by then. It was the sponsor’s contention that had the injustice not happened the appellant would have accompanied the sponsor as a minor to the UK. It was accepted on behalf of the appellant, by Mr Jesurum, that the appellant could not meet the terms of the Annex K policy and that the appeal was only under Article 8.
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It was accepted, in the refusal letter that the sponsor would have applied for settlement on discharge if he could have and the Entry Clearance Manager’s review considered that Article 8 was engaged. The only issue was proportionality. I agree with Mr...
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