BAILII

Automated Summary

Key Facts

The case involves two Nepalese appellants (citizens born 17 August 1985 and 16 March 1989) who appealed the refusal of their 2015 entry clearance applications to join their father, a former Gurkha soldier settled in the UK, as adult dependents. The First-tier Tribunal allowed their appeals on Article 8 grounds outside the Immigration Rules, citing 'historic injustice' as compelling circumstances. The Upper Tribunal upheld this decision, noting the sponsor's concession of family life under Article 8(1) and the absence of adverse immigration history or criminality to tilt the public interest balance.

Issues

  • The tribunal considered if the appellants' financial dependency on their father, a former Gurkha, was a matter of choice. The FtJ found financial dependency, but the respondent argued it wasn't compelling. The Upper Tribunal noted the lack of evidence on why the appellants couldn't work, suggesting their dependency might be voluntary, yet upheld the appeal due to other factors like historic injustice.
  • The case involved assessing the weight of historic injustice where the sponsor, a former Gurkha, was prevented from settling in the UK earlier. The FtJ relied on the Court of Appeal's decision in Gurung, emphasizing that such injustice should be given substantial weight. The Upper Tribunal confirmed that this injustice, combined with no adverse immigration history, determined the proportionality assessment in favor of the appellants.
  • The tribunal examined whether the appellants' family ties with their father, a former Gurkha soldier, demonstrated emotional dependency beyond normal. The respondent argued that the evidence lacked to show dependency, citing the appellants' independent lives and lack of care arrangements. The FtJ found emotional dependency after the respondent conceded family life, leading to the conclusion that refusing entry clearance interferes with their family life under Article 8.

Holdings

  • The Upper Tribunal emphasized that where Article 8 is engaged and but for historic wrongs the appellant would have settled in the UK long ago, this typically determines the proportionality assessment in the appellant's favor, unless adverse factors like bad immigration history or criminal behavior are present.
  • The decision of the First-tier Tribunal did not involve an error on a point of law, and its decision to allow the appeal of each appellant stands. The Upper Tribunal upheld the First-tier Tribunal's conclusion that the historic injustice suffered by the Gurkha ex-servicemen outweighed the public interest in maintaining immigration control, leading to the allowance of the appeals.

Remedies

The decision of the First-tier Tribunal to allow the appeal of each appellant stands as it did not involve an error of law.

Legal Principles

The Upper Tribunal applied the proportionality test under Article 8 of the European Convention on Human Rights (ECHR), emphasizing the significance of historic injustice in favor of Gurkha ex-servicemen and their dependants. The decision relied on the principle that where Article 8 is engaged and the only public interest consideration is immigration control, the balance must tilt in favor of the appellant. This aligns with the guidance in Ghising and Gurung v Secretary of State, which established that historic wrongs should be given substantial weight in proportionality assessments.

Precedent Name

  • Gurung v Secretary of State for the Home Department
  • Ghising and others (Gurkhas/BOCs: historic wrong; weight)

Cited Statute

  • Nationality, Immigration and Asylum Act 2002
  • Human Rights Act 1998

Judge Name

Upper Tribunal Judge Kopieczek

Passage Text

  • He found that as adult dependants of a former Gurkha settled in the UK who, but for historic injustice would have settled in the UK long ago as a minor child of the former Gurkha, does constitute 'compelling circumstances' warranting consideration outside the Article 8 Rules.
  • The FtJ's decision was made in line with relevant authority and the grounds do not establish any error of law in his decision. Accordingly, his decision to allow the appeal of each appellant must stand.
  • "(3) What concerned the Court in Gurung and others was not the burden of proof but, rather, the issue of weight in a proportionality assessment. The Court held that, as in the case of BOCs, the historic wrong suffered by Gurkha ex-servicemen should be given substantial weight."