Upper Tribunal (Immigration and asylum chamber), 2018-03-29, HU/14293/2016
| Jurisdiction | UK Non-devolved |
| Date | 29 March 2018 |
| Published date | 18 April 2018 |
| Hearing Date | 06 March 2018 |
| Status | Unreported |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Appeal Number | HU/14293/2016 |
Appeal Number: HU/14293/2016
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: HU/14293/2016
THE IMMIGRATION ACTS
|
Heard at Newport |
Decision & Reasons Promulgated |
|
On 6 March 2018 |
On 29 March 2018 |
Before
UPPER TRIBUNAL JUDGE GRUBB
Between
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and
NISHA LIMBU
Respondent
Representation:
For the Appellant: Mr K Hibbs, Senior Home Presenting Officer
For the Respondent: Mr M Puar instructed by Everest Law Solicitors
DECISION AND REASONS
Introduction
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This is an appeal by the Secretary of State against a decision of the First-tier Tribunal (Judge Frazer) promulgated on 31 July 2017. By that decision the First-tier Tribunal allowed the appeal of the respondent (whom I shall refer to hereafter the “Claimant”) against a decision of the Secretary of State dated 19 May 2016 refusing her indefinite leave to remain (ILR) under the Rules and Art 8 of the ECHR.
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The Secretary of State appeals with permission of the First-tier Tribunal Judge (E M Simpson) granted on 9 October 2017.
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The appellant was represented by Mr K Hibbs, Senior Home Office Presenting Officer and the Claimant was represented by Mr M Puar.
The Background
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The Claimant is a citizen of Nepal who was born on 20 October 1988. Her father was a serving Gurkha solider. He died in service in 1990 when the Claimant was 2 years old. Following his death, the Claimant lived in Nepal together with her mother and brother.
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Between 1994 and 2008, the Claimant was educated at boarding school in India. She returned to Nepal during the holidays to live with her mother.
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On 14 July 2007, the Claimant’s mother was granted indefinite leave to enter the United Kingdom as, and it was not disputed before the judge or before me, the widow of a Gurkha soldier.
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In fact, at the same time, the Claimant also applied for indefinite leave to remain as a dependent when she was 17 years of age. By the time of the ECO’s decision, the Claimant was 18 years of age and her application under the Immigration Rules was refused on the basis that her mother was, at the time, resident in Nepal.
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The Claimant’s mother came to the UK on 14 July 2007. The Claimant’s mother sadly died on 24 October 2009.
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Prior to her mother’s death, the Claimant again applied for indefinite leave to enter in 2008. That application was refused on the basis that the ECO was not satisfied that the Claimant was dependent on her mother nor was he satisfied that the Claimant would be adequately accommodated without recourse to public funds. I take those facts from para 11 of Judge Frazer’s determination. None of the decisions were placed before me but equally neither representative suggested that Judge Frazer’s summary in para 11 was inaccurate. It would appear, however, that an appeal was lodged against the refusal of indefinite leave to enter on 29 July 2008 but the Claimant’s mother (who was of course in the UK) died on 24 October 2009 and the Claimant is unaware of what happened to the appeal. Mr Hibbs indicated that the appeal was unsuccessful. However, he did not place before me the decision of the Immigration Judge and it is, perhaps, not surprising that the appeal was unsuccessful once the Claimant’s sponsor (her mother) had died.
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At para 12 of her decision, Judge Frazer recounts what occurred following the High Court decision in R (Limbu) and Others v SSHD [2008] EWHC 2261 (Admin). Following the publication of revised policy guidance dealing with former Gurkhas and their families, the Secretary of State wrote to the Claimant on 13 July 2009 and on 27 July 2010 seeking further information. However, the judge records that no further documentation was produced but the Claimant was interviewed on 15 December 2009. It would appear that her application was then considered under para 317 of the Immigration Rules and Art 8 and the Secretary of State went on to confirm the decision to refuse the Claimant indefinite leave to enter.
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Thereafter, on 18 October 2012, the Claimant entered the UK as a Tier 4 Student. She undertook a degree at the University of Sunderland (London Campus) and in 2015 she graduated with an upper second-class honours degree.
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In para 13 of her determination, Judge Frazer records the evidence before her concerning the circumstances during the Claimant’s time at university as follows:
“The Claimant has been dependent on her paternal aunt, Ms. Netra Kala, for her fees and maintenance. The claimant has lived in London throughout her studies but has stayed with her aunt and cousins in Llanelli in the holidays. Her aunt and family have taken in the Claimant as one of their own, so as to speak.”
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At para 14, the judge identified the claimant’s dependence both emotionally and financially upon her aunt in the UK as follows:
“The Claimant depends on her aunt for emotional and financial assistance. She has a brother in Nepal who has wife and two children. He is unable to provide for her as he is the sole breadwinner and can only support this immediate family. The appellant has grandparents but they are both over 80 and are in poor health.
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On 21 December 2015, the Claimant made an in-time human rights application for indefinite leave to remain in the UK outside the Immigration Rules under Art 8 as the dependent child of a former Gurkha.
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That application was refused by the Secretary of State on 19 May 2016.
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The Claimant appealed that decision to the First-tier Tribunal and it is the resulting decision of Judge Frazer promulgated on 31 July 2017 allowing the Claimant’s appeal under Art 8 which is the subject of this appeal by the Secretary of State to the Upper Tribunal.
The Decision of the First-tier Tribunal
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The essential facts, which I have related above and largely derived from the determination of Judge Frazer, were not in dispute before her.
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In essence, Judge Frazer accepted that there was “family life” between the Claimant and her aunt in the UK based upon emotional and financial dependency. Having concluded, therefore, that the decision engaged Art 8.1, the judge found that the decision was disproportionate having regard to the “historic injustice”, namely that the Claimant had lost the opportunity to settle in the UK with her mother as a child of a former Gurkha who had died in service. The judge found that that that “historic injustice” outweighs the public interest. I have already set out paras 13 and 14 of the judge’s decision as relevant. The remainder of her reasons are found at paras 15-19 as follows:
“15. The particular circumstances of the Appellant’s case can be considered in line with the case law on historic injustice. In Limbu it was recognised that Gurkhas had been treated less favourably than comparable commonwealth members of HM Forces. Settlement then became available to Gurkhas and their family members.
16. In R (Gurung) v Secretary of State for the Home Department [2013] EWCA Civ 8 in the context of Article 8 ECHR the Court of Appeal held at paragraph 42 that if a Gurkha could show that but for the historic injustice he would have settled in the United Kingdom at a time when his dependent (now) adult child would have been able to accompany him as a dependent child under the age of 18 that would be a strong reason for holding that it was proportionate to permit the adult child to join his family now.
17. It is clear from the applications that the Appellant’s intention and that of her mother was to bring the Appellant over as a dependent. I note that the first application that the Appellant made was when she was 17 but that it was determined by the Respondent when she had reached her majority. All things being equal, had the Respondent’s policy guidance applied to the appellant prior to 2006 she would have been granted entry clearance as a dependent child. She had been in boarding school in India but had been dependent on her mother and had stayed with her during the school holidays.
18. The Appellant has strong ties to her aunt and her family in the UK. Her aunt feels a sense of responsibility towards the Appellant. The Appellant’s aunt is the sister of the Appellant’s father. The Appellant was supported by her father’s pension when she was in Nepal but when that stopped her aunt supported her financially. She has funded the Appellant’s education in the United Kingdom and accommodates her during the holidays. The aunt has been the Appellant’s only relative in the United Kingdom and there is a significant degree of emotional support which comes from the aunt given that the Appellant has now lost both of her parents.
19. Having heard the evidence, I am satisfied that he bonds between the Appellant and her aunt go beyond normal emotional ties and that there is family life existing between them. Her aunt and...
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