Upper Tribunal (Immigration and asylum chamber), 2022-09-14, HU/08294/2020 & HU/08295/2020
| Appeal Number | HU/08294/2020 & HU/08295/2020 |
| Hearing Date | 29 September 2022 |
| Published date | 29 September 2022 |
| Date | 14 September 2022 |
| Status | Unreported |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
Appeal Numbers: UI -2022-001303 (HU/08294/2020)
UI- 2022-001302 (HU/08295/2020)
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Numbers:
UI -2022-001303 (HU/08294/2020)
UI- 2022-001302 (HU/08295/2020)
THE IMMIGRATION ACTS
|
Heard at Field House |
Decision & Reasons Promulgated |
|
On 28 July 2022 |
On 14 September 2022 |
Before
UPPER TRIBUNAL JUDGE FRANCES
DEPUTY UPPER TRIBUNAL JUDGE HARIA
Between
MR Nirmal Gurung
MR Buddha Gurung
(ANONYMITY DIRECTION not made)
Appellants
and
ENTRY CLEARANCE OFFICER
Respondent
Representation:
For the Appellant: Mr Wilford, of Counsel instructed by Everest Law Solicitors
For the Respondent: Mr Kotas, Senior Home Office Presenting Officer
DECISION AND REASONS
Introduction
-
The appellants appeal against the decision of First-tier Tribunal Judge Monson, promulgated on 7 November 2021, dismissing their appeals against the refusal of entry clearance as adult dependent children of a former Gurkha soldier.
-
Permission to appeal was refused by First - tier Tribunal Judge Curtis in a decision dated 5 March 2022 on the basis that none of the 7 Grounds of Appeal were arguable. Permission to appeal was subsequently granted by Upper Tribunal Judge Grubb on 14 June 2022 on the basis of Grounds 1,2, 4 and 6 of the Grounds of Appeal are arguable. Upper Tribunal Judge Grubb in the Grant of Permission stated:
“… that the judge wrongly assessed the issue of ‘family life’ in a case of this sort following Rai. In particular, the judge’s reference to financial dependency to meet the “essential needs” of the appellants reflects language relevant to EEA family (and extended family) members and not necessarily to the existence of ‘family life’ under Art 8.”
-
Having found grounds 1,2,4 and 6 to be arguable, Upper Tribunal Judge Grubb granted permission on all grounds stating that the remaining grounds have less merit.
Anonymity
-
No anonymity direction was made by the First-tier Tribunal. There was no application before us for such a direction. Having considered the facts of the appeals including the circumstances of the appellants and their family, we see no reason for making a such direction.
Background
-
There is no dispute between the parties as to the factual matrix in these appeals which is set out briefly below.
-
The appellants are nationals of Nepal. The first appellant, Nirmal was born on 19 June 1972, and the second appellant, Buddha was born on 20 June 1984. They are brothers.
-
The appellants’ father, Mr Ambar Bahadur Gurung (the sponsor) is married to their mother, Mrs Deo Kumari Gurung. They have three sons including the appellants. Nirmal (the first appellant) is their eldest son, they have a middle son Manoj who was born on 26 December 1980 and Buddha (the second appellant) is their youngest son. The family lived together in Nepal in a small hut in the middle of a jungle around 40-50 minutes on foot from the nearest town prior to their parents migrating to the UK in 2015 and Manoj moving to Portugal around 3 to 4 years ago.
-
Mr Ambar Bahadur Gurung, was born in Nepal on 4 March 1948. Mrs Deo Kumari Gurung was born in Nepal on 14 April 1948. Mr Ambar Bahadur Gurung served in the Brigade of Gurkhas for 4 years and 257 days before being was discharged from service on 23 June 1971 with a “very good” record of military conduct.
-
Nirmal completed his school graduation and studied at an intermediate level but failed. Manoj graduated from school but did not undertake any further studies. Buddha failed at Grade 10 and did not continue his education. The appellants and Manoj worked as labourers when such work was available for a few months a year. They spend time helping villagers and people who need company or physical assistance.
-
The appellants’ parents came to settle in the UK on 2 February 2015 having been issued with a settlement visa on 19 November 2014 on the basis of Mr Ambar Bahadur Gurung’s service as a former Gurkha.
-
On 25 December 2019, the appellants applied for leave to enter the United Kingdom (UK) as the dependent sons of their father, a former Gurkha soldier. Nirmal was aged 47 years of age at the date of application and Buddha was 35 years of age at the date of application.
-
Around 3-4 years ago Manoj moved to Portugal where he found work as a butcher but he was struggling to make ends meet.
-
Both appellants are unemployed, unmarried and have no children of their own. They live in the home they shared as a family rent free. This accommodation is provided by their parents.
-
Having settled in the UK, the sponsor and his wife have travelled to Nepal regularly staying for about a month each time. The last time they travelled to Nepal was in March 2021, when due to the Covid 19 pandemic they were forced to remain for more than a month returning to the UK in September 2021.
-
The sponsor and his wife speak to the appellants 2 to 3 times a week.
-
In refusing the applications, the Entry Clearance Officer (ECO), considered EC-DR 1.1 of Appendix FM and Article 8 of the European Convention on Human Rights (ECHR). The ECO issued separate refusal letters for each appellant dated 10 February 2020. The refusals for each appellant were to the same effect save for noting that Nirmal was 47 years of age and Buddha was 35 years of age at the date of application. The ECO noted that the appellants had not declared any medical conditions or disability and were able to care for themselves. Although the ECO does not specifically mention the respondent’s policy as outlined in Annex K of the Immigration Directorate Instructions Chapter 15, section 2A, it is clear that the policy was applied as having noted their respective ages, the ECO refused the appellants application noting that they were both over the age of 30 on the date of their applications and so did not meet all of the eligibility requirement for settlement as an adult child of a Gurkha discharged prior to 1 July 1997. Consideration was given to Article 8 of the ECHR and relevant case law. The ECO accepts the relationship between the appellants and sponsor. The ECO also accepts that the appellants may receive some financial support from their sponsor and that they remain in contact with him. However the ECO considered the appellants had not demonstrated that they are financially and emotionally dependent on their father (the sponsor) beyond that normally expected between a parent and adult child. The ECO was not satisfied that the appellants had demonstrated they had family life with their parents over and above that between an adult children and their parent(s) as they had not demonstrated “real” or “committed” or “effective” support from their parent(s). The ECO refused the applications on the basis that Article 8(1) was not engaged.
The decision of the First-tier Tribunal
-
Mr Wilford appeared for the appellants at the First - tier Tribunal hearing. The Judge rightly considered the crucial issue in the appeals to be whether family life subsists between the appellants and their parents and he correctly directed himself that if it does, the refusal decisions constitute a disproportionate interference with their family life rights under Article 8 ECHR.
-
The Judge found that the appellants had not demonstrated that the relationship with their parents goes beyond normal emotional ties.
-
The Judge found that the appellants had not shown that family life had endured from the time of their parents’ departure from Nepal in 2015 until the date of the First - tier Tribunal hearing on 28 October 2021, so they had not shown that the interference consequential upon the refusal decisions is of sufficient gravity to engage Article 8(1) ECHR. Accordingly, the Judge found the ECO decisions did not breach the appellants’ Article 8 rights and dismissed the appeals.
The grounds of appeal to the Upper Tribunal
-
The grounds seeking permission to appeal are lengthy. For the purpose of this decision we set out the grounds in summary below.
-
Ground 1: The Judge failed to apply the correct test to the question of whether family life exists between the appellants and their parents by departing from the test set out in Kugathas v Secretary of State for the Home Department [2003] EWCA Civ 31.
-
Ground 2: The Judge erred by requiring the appellants demonstrate that family life existed at the time of their parents’ departure from Nepal in 2015 and endured beyond that to the date of the hearing in 2021.
-
Ground 3: The Judge erred by considering discrete elements and failed to consider whether the totality of all the material evidence disclosed the existence of family life.
-
Ground 4: The Judge erred by failing to consider material evidence indicative of the existence of family life between the appellants and their parents.
-
Ground 5: The Judge erred in attaching weight to irrelevant matters in particular:
-
the fact the sponsor drew no distinction between his relationship with his son Manoj who lives independently in Portugal and his relationship with the appellants, and
-
the existence of relatives living in the village as diminishing the bond between the appellants and their parents.
-
To continue reading
Request your trial