Upper Tribunal (Immigration and asylum chamber), 2020-12-09, HU/19459/2016
| Jurisdiction | UK Non-devolved |
| Date | 09 December 2020 |
| Published date | 07 January 2021 |
| Hearing Date | 25 November 2020 |
| Status | Unreported |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Appeal Number | HU/19459/2016 |
Appeal no: HU/19459/2016
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: HU/19459/2016
THE IMMIGRATION ACTS
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Heard at Field House, London |
Decision & Reasons Promulgated |
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On Wednesday 25th November 2020 |
On Wednesday 09th December 2020 |
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Before
UPPER TRIBUNAL JUDGE L SMITH
DEPUTY UPPER TRIBUNAL JUDGE R THOMAS
THIR BAHADUR THAPA
Appellant
and
SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:
For the Appellant: Ms A Jaja, Counsel instructed by Howe & Co Solicitors
For the Respondent: Ms S Cunha, Senior Home Office Presenting Officer
DECISION AND REASONS
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The Appellant, who is 53 years of age, is Nepalese. He is married and has two children aged 14 and 24. His wife and children remain in Nepal. The Appellant’s mother, Phistimaya Thapa, is 89 years of age. Her late husband - the Appellant’s father - served in the Gurkha Brigade from 1948 to 1964 and he died in Nepal in 2002. She obtained entry clearance for settlement as a Gurkha widow on 10th July 2014 and arrived in the United Kingdom in September of that year.
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The Appellant obtained entry clearance as a family visitor and entered the United Kingdom on 23rd October 2015 with leave until 29 March 2016. He applied for leave to remain on 7th March 2016 on the grounds that to remove him would involve a disproportionate interference in the family life he enjoys in this country with his elderly mother. The Appellant relies in particular on the weight to be given to the ‘historic injustice’ suffered by former soldiers of the Gurkha Brigade who had been treated less favourably than other comparable non-British Commonwealth soldiers serving in the British army by not being permitted to settle in the United Kingdom on completion of their service.
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The Respondent refused his application in a decision of 28th July 2016 on the grounds that he did not have a family life in the UK and therefore Article 8(1) was not engaged. On 13th September 2019, Immigration Judge Kimnell allowed the Appellant’s appeal. That decision was set aside on 10th March 2020 by the Upper Tribunal (Upper Tribunal Judges Craig and Smith) on the grounds that it involved an error of law and directions were made for a resumed hearing. That decision is appended below. The resumed hearing took place on a face to face basis on 25th November 2020.
The Hearing
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In support of his case, the Appellant relied upon the Amended Consolidated Bundle of Appellant’s Evidence in Support. That contained his witness statement, two witness statements from his mother, letters from his wife and on behalf of two community organisations with whom the Appellant has been volunteering, his mother’s medical records, banks statements, and information confirming his father’s service. He also relied on a Supplementary Bundle that was prepared for this hearing, containing an updated statement from his mother, an additional letter from her GP, and further financial information. We have considered carefully all that material.
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The Appellant gave oral evidence. He adopted his witness statement and was asked additional questions about the recently served statements from Standard Chartered Bank in Nepal. In cross-examination, he was asked: about the domestic and financial arrangements when he lived in Nepal with his mother and wife and children: about the extent of the emotional support he provides in the UK to his mother: and about the extent to which he assists with her obtaining medical treatment and with her day to day care. He was asked also about what other support was available to his mother, who would care for her if he got a job, and about why it was that there was a change to the original plan that she would return with him. We address his evidence and our findings below.
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His mother, Phistimaya Thapa, also gave oral evidence. She adopted her statements. She is illiterate and very hard of hearing but was able to confirm through an interpreter that someone had read the statements to her and she had signed them. Ms Cunha sensibly confined her cross-examination to one area, namely the assistance she had been provided by a family friend whilst in the UK alone. Again, we address our findings on her evidence below.
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The parties made submissions and we reserved our judgment.
Our Approach
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In Jitendra Rai v Entry Clearance Officer (New Delhi) [2017] EWCA Civ 320, the Court accepted the Secretary of State’s submissions that there were three stages of analysis in a case of this kind: first, the application of the Immigration Rules; second, the consideration of the Appellant’s case under Article 8; and third, the question of whether there were exceptional circumstances under the policy.
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The discretionary policy in Rai - and all the other relevant authorities to which we have been referred - was that under Immigration Directorates’ Instructions (‘IDI’), Ch 15, section 2A paragraph 13.2 and ‘Annex A (of March 2010)’ which provided:
‘Dependents
…
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 provision of the Immigration Rules, for example under paragraph 317, or under the provisions of Article 8 of the Human Rights Act [sic]. Exceptional circumstances may be considered on a case by case basis. For more information on exceptional circumstances in which discretion may be exercised see Section 13.2.’
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That policy has been superseded and we have to consider firstly whether the introduction of the policy now found in ‘Annex K – Adult Dependent Children of Former Gurkhas’ that applies to all applications after 5th January 2015 necessitates a different approach. Whether it has a substantive impact on our decision is a separate question addressed as part of the proportionality assessment (at paragraphs 38-39 below).
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Annex K provides for adult children of former Gurkhas who completed their service in the Brigade of Gurkhas of the British Army between 1948 and 1997 to be granted settlement in certain circumstances. The policy is available only to applicants outside the United Kingdom and applies only to those under the age of 31. It is common ground the Appellant would not qualify given his age and of course this is an application for leave to remain, not enter. The concluding paragraphs of Annex K are therefore pertinent:
“Refusal Cases
26. Where an application falls for refusal under this policy, the decision maker must consider whether Article 8 otherwise requires them to be granted leave on the basis of exceptional circumstances in accordance with the guidance contained in Appendix FM 1.0b: Family Life (as a Partner or Parent) and Private Life: 10- year Routes.
27. As part of any proportionality aspect of this consideration, decision makers must take account of the following relevant case law:
The Court of Appeal confirmed in Gurung & Ors, R (on the application of) v Secretary of State for the Home Department [2013] ECWA Civ 8 (21 January 2013) that the ‘normal position is that they (adult dependent relatives) are expected to apply for leave to enter or remain under the relevant provisions of the Rules or under the provisions of Article 8 of the European Convention on Human Rights’. The Court also found that the historical injustice faced by Gurkhas who were not able to settle in the UK until 2009 should be taken into account during the Article 8 consideration of the case but was not determinative. If a Gurkha can show that, but for the historic injustice, he would have settled in the UK at a time when his dependant (now) adult child would have been able to accompany him as a dependant child under the age of 18, that is a strong reason for holding that it is proportionate to permit the adult child to join his family now’.
The Upper Tier Tribunal found in Ghising and others [2013] UKUT 00567 (IAC) that where it is found that Article 8 is engaged and, but for the historic wrong, the Appellant would have been settled in the UK long ago, this will ordinarily determine the outcome of the Article 8 proportionality assessment in the Appellant’s favour, where the matters relied upon by the Secretary of State/entry clearance officer (ECO) consist solely of the public interest in maintaining a firm immigration policy.
If the Secretary of State/ECO can point to matters over and above the public interest in maintaining a firm immigration policy, which argue in favour of removal or the refusal of leave to enter, these matters must be given appropriate weight in the balance in the Secretary of State/ECO’s favour. Thus, a bad immigration history and/or criminal behaviour may still be sufficient to outweigh the powerful factors bearing on the Appellant’s side of the balance.”
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On the face of Annex K, the three stages of analysis identified in Rai are now reduced to two stages, namely, a consideration firstly under the Immigration Rules and, secondly, under Article 8. But if there is any distinction it...
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