Automated Summary
Key Facts
The Appellant, a national of Nepal, appealed against the ECO's refusal of entry clearance as an adult dependent relative of an ex-Ghurkha. The ECO initially refused on 27 June 2013, citing failure to meet paragraph 317 of the Immigration Rules and lack of exceptional compassionate circumstances. The First-tier Tribunal dismissed the appeal on 7 November 2014 under both the Immigration Rules and Article 8 ECHR. Permission to appeal was granted on 7 January 2015. The Upper Tribunal found the original decision had multiple errors of law, including inadequate evidence assessment, failure to properly consider Article 8, and whether the Appellant was entitled to enter based on re-establishing family life with his Sponsor father. The case was remade, with the issue now being whether the Appellant has a claim under Article 8 ECHR outside the Rules.
Issues
- The original tribunal judge made errors of law by not addressing key evidence related to the Appellant's entry clearance and by failing to properly assess whether Article 8 ECHR applied, particularly regarding the Appellant's entitlement to re-establish family life with his Sponsor father in the United Kingdom.
- The case examines whether the Appellant has a valid claim to enter the United Kingdom under Article 8 ECHR outside the standard immigration rules, focusing on the necessity to re-establish family life with his Sponsor father.
Holdings
- whether or not the Appellant was entitled to come to the United Kingdom based upon re-establishing a family life with his Sponsor father
- failing to address evidence that had been adduced
- failing to properly assess whether Article 8 was engaged
Remedies
The matter was remade in the First-tier Tribunal. Directions include relisting for hearing before any judge other than Immigration Judge Napthine, no findings of fact to stand, and the issue to be determined is whether the Appellant has a claim under Article 8 ECHR outside of the Rules. The Original Tribunal's decision was set aside due to errors of law.
Legal Principles
The decision was based on judicial review principles, identifying errors in the original tribunal's failure to properly evaluate Article 8 ECHR claims and the Appellant's entitlement to re-establish family life with a settled relative in the UK.
Cited Statute
- Immigration Acts
- European Convention on Human Rights
Judge Name
- First-tier Tribunal Judge Napthine
- Deputy Upper Tribunal Judge Davey
Passage Text
- 6. Having considered the grounds and the parties' remarks, I am satisfied that the judge's decision disclosed a number of errors of law in failing to address evidence that had been adduced, failing to properly assess whether Article 8 was engaged, and whether or not the Appellant was entitled to come to the United Kingdom based upon re-establishing a family life with his Sponsor father.
- 7. Accordingly, I accept that the Original Tribunal decision cannot stand and the matter will have to be remade in the First-tier Tribunal.
- 5. At the hearing before me it was accepted by Mr Mills that a number of issues, including an assessment of the evidence, which was relevant to the issues of entry to the United Kingdom, had not been considered. He and Miss Walker therefore invited me to accept that the judge had made a number of errors of law and that the only course was for the matter to be remade.