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You are here: BAILII >> Databases >> United Kingdom Immigration and Asylum (AIT/IAC) Unreported Judgments >> HU154862019 & HU154872019 [2021] UKAITUR HU154862019 (7 October 2021)
URL: http://www.bailii.org/uk/cases/UKAITUR/2021/HU154862019.html
Cite as: [2021] UKAITUR HU154862019

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Upper Tribunal

(Immigration and Asylum Chamber) Appeal Number: HU/15486/2019

HU/15487/2019

 

 

THE IMMIGRATION ACTS

 

 

Heard at Manchester CJC (via Microsoft Teams)

Decision & Reason Promulgated

On 26 August 2021

On 07 October 2021

 

 

Before

 

UPPER TRIBUNAL JUDGE HANSON

 

 

Between

 

THAMANSING PURJA PUN

BUDHIBAHADUR PURJA PUN

( Anonymity direction not made)

Appellants

and

 

AN ENTRY CLEARANCE OFFICER

Respondent

 

 

Representation :

For the Appellant: Mr Moll instructed by Howe & Co Solicitors.

For the Respondent: Mr C Bates, a Senior Home Office Presenting Officer.

 

 

DECISION AND REASONS

 

1.                   The appellants appeal with permission a decision of First-tier Tribunal Judge Swinnerton ('the Judge') promulgated on 12 March 2021 in which the Judge dismissed the appeals of the appellants against the refusal of their applications for leave to enter the United Kingdom as adult dependent children of their mother, the sponsor and a widow of a former Gurkha soldier.

 

Background

 

2.                   At the date of the hearing, the first appellant was 49 years of age and the second appellant 45.

3.                   The appellants father enlisted in the Brigade of Gurkhas on 4 November 1957 and was discharged with an exemplary military conduct record on 7 December 1970. He died on 21 May 2005.

4.                   The sponsor was aged 74 at the date of the hearing and entered the United Kingdom on 4 May 2014, having been granted the requisite leave on 3 March 2014.

5.                   The Judge notes the appellants continue to live in the family home owned by the mother and that there are two other siblings who live and work in Hong Kong.

6.                   Having had the benefit of considering the documentary evidence and the sponsor's oral evidence at the hearing, the Judge sets out findings of fact [21] of the decision under challenge. At [26 - 28] the Judge writes:

 

26. With respect to the provision of financial support by the sponsor to the Appellants, it is readily acknowledged and accepted by the Respondent that the sponsor has provided financial support to the Appellants but it is not accepted by the Respondent that the sponsor has provided this financial support in a regular or frequent manner. The Respondents characterise the financial support provided by the sponsor to the Appellants as sporadic or limited. The money transfer receipts provided do not detail any payments having been made by the sponsor to the Appellants from the end of 2015 until July 2017. In 2018, three money transfers were made , and in 2018 four money transfers were made. Based on the available evidence of financial support provided by the sponsor to the Appellants, I do not accept that the sponsor has provided or provides financial support to the Appellants on a frequent basis. I find that it is much more likely that the sponsor provides financial support to the Appellants on an infrequent basis and that the Appellants are largely able to provide for themselves as a consequence of the farming work which they undertake.

 

27. It is clear that voluntary separation does not end family life. Neither does the attainment of the age of majority end family life although age is a relevant factor and the first Appellant was aged 47 and the second Appellant aged 43 at the time of the application.

 

28. It is not disputed that the sponsor has lived apart from the Appellants for long periods of time during their childhood. That includes the period of about 10 years from 1996 to 2005 when the sponsor lived with her husband in Hong Kong and almost all of the last 7 years since the sponsor first entered into the UK on 4.5.2014. I do not doubt that the sponsor loves and cares deeply for the Appellants and for her other two children, and neither do I doubt that those feelings are reciprocated by the Appellants. That said, and having taken account of all the circumstances in this case, I am not satisfied that there exists emotional dependency between the sponsor and the Appellants over and above the normal emotional ties or that there is real, effective or committed support. I am not therefore satisfied that family life exists, or that Article 8(1) is engaged.

 

7.                   The appellant sought permission to appeal which was granted by another judge of the First-tier Tribunal on 12 May 2021, the operative part of the grant being in the following terms:

 

2. The grounds asserts that the Judge erred in placing too much weight on a voluntary separation of the sponsor from the appellants without grappling with whether the family would have remained together had it been possible under the United Kingdoms immigration laws at an earlier date; and in failing to indicate whether she accepted the evidence that the appellants were subsistence only farmers who did not earn an income from their farming.

 

REASONS FOR DECISION

 

3. The selective summary of the judge's findings and reasons in the grounds of appeal does not accurately reflect the basis on which the judge concluded that family life does not exist between the sponsor and the appellants. It is arguable, however, that the judge did not have regard to the totality of the sponsor's evidence, including the witness statements, particularly that relating to the period she spent in Hong Kong and why she went. In the alternative, it is arguable she failed to give adequate reasons for rejecting it.

 

Error of law

 

8.                   The fact the appellants and their mother are related is not enough per se. In CO and NO (Nigeria) [2004] UKIAT 00232 the Tribunal noted that there was a distinction to be drawn between family life in the colloquial sense (now often referred to as family ties) and family life within the meaning of Article 8(1). At [7] of that decision it is written:

 

7. We do not accept that the right "to respect for private and family life" extends necessarily to a right (even a qualified right) to join with other relatives who are entitled to live in the United Kingdom under the Immigration Rules. Mr Chelvan was not able to show us any decision of the European Courts which recognised the right of adult children to choose to live with their parents in a country where the European Convention on Human Rights applies. We accept that there may well be cases where removing a person interferes with his private and family life established in, for example, the United Kingdom. That is quite different from saying that a person has the right to join with a relative who has chosen to live in the United Kingdom. Similar points were made by Mr J Barnes (Vice President) in the case known as S (Uganda)  [2004] UKIAT 00064  at paragraph 8

 

"It is accepted that in circumstances where family life is put forward as existing between an adult child and his parents or an adult sibling and his other siblings there needs to be further evidence of dependency involving more than normal emotional ties. This was reaffirmed by the Tribunal in the recent case of Salad [2002] UKIAT 06698 relying on the earlier case of Advik v United Kingdom, a Strasbourg case decided in September 1995. The relevant quotation from Advik is also contained at paragraph 13 of the decision in Salad. Each case is fact dependent. In Salad adult brothers had been living apart for a long period of time and were not dependent on each other. Equally where relationships between parents and an adult child are concerned the protection of Article 8 would not necessarily be engaged without evidence of further elements of dependency. In the present appeal no evidence of such further dependency has been adduced although the appellant was offered the opportunity to bring oral evidence before us had he wished to do so."

 

9.                   In S v UK [1984] 40 DR 196 Sedley LJ made it clear that "Neither blood ties nor the concern and affection that ordinarily go with them are, by themselves altogether, in my judgment enough to constitute family life. Most of us have close relations of whom we are extremely fond and whom we visit, or who visit us, from time to time; but none of us would say on those grounds alone that we have a family life with them in any sense capable of coming within the meaning and purpose of Article 8".

10.               The answer to the question whether family life recognised by Article 8 exists depends upon the specific facts of the case.

11.               In PT (Sri Lanka) v Entry Clearance Officer, Chennai [2016] EWCA Civ 612 it was held that some tribunals appeared to have read Kugathas [2003] EWCA Civ 31 as establishing a rebuttable presumption against any relationship between an adult child and his parents or siblings being sufficient to engage Article 8. That was not correct. Kugathas required a fact-sensitive approach and should be understood in the light of the subsequent case law summarised in Ghising (family life -adults -Gurkha policy) [2012] UKUT 160 (IAC) and Singh [2015] EWCA Civ 630. There was no legal or factual presumption as to the existence or absence of family life for the purposes of Article 8 nor was there any requirement of exceptionality. It all depended on the facts. The love and affection between an adult and his parents or siblings would not of itself justify a finding of a family life. There had to be something more. A young adult living with his parents or siblings would normally have a family life to be respected under Article 8. A child enjoying a family life with his parents did not suddenly cease to have a family life at midnight as he turned 18 years of age. On the other hand, a young adult living independently of his parents might well not have a family life for the purposes of Article 8 (paras 23 -26).

12.               In PT it was found to be proportionate to refuse entry to a young adult with a family life when the Claimant had been able to make the transition to independent living, notwithstanding a degree of financial dependence, there was no evidence of any special impact from his separation from his mother and sisters and the rest of the family had chosen to move to the UK and were not facing persecution in Sri Lanka.

13.               Specifically in relation to children of former Gurkha soldiers, the legal position is that the policy of redressing the historic injustice which had prevented Gurkhas from settling in the UK carried far less weight where non-dependent adult relatives of a Gurkha applied for indefinite leave to remain than it did when dependent relatives applied: see  Pun (Nepal) v. Secretary of State for the Home Department [2017] EWCA Civ 2106 (13 December 2017)  [2018] 4 WLR 80.

14.               Mr Moll sough to rely upon the decision of the Court of Appeal in   Rai v. Entry Clearance Officer, New Delhi [2017] EWCA Civ 320 (28 April 2017) in which it was found

 

'The real issue under article 8(1) is whether, as a matter of fact, an adult family member has demonstrated that he has a family life with his parents which existed at the time of their departure and has endured beyond it, notwithstanding their having left Nepal when they did. There is no test of 'exceptionality''.

 

15.               It is not an error for a Judge not to set out in detail all the written evidence or to not have made findings in relation to the same. The Judge states that all the evidence relied upon by the parties was considered, both written and oral, it is not made out on the basis of the evidence provided, the decision raises a whole all the submissions that there is any reason to go behind this statement.

16.               The grant permission to appeal refers to the sponsor's evidence as to why she went to Hong Kong. In her witness statement dated 8 May 2019 at [12 - 13] it is written:

 

12. After my son Pritam Bahadur was granted Hong Kong ID, he travels to Hong Kong and sponsored my and my husband's visas. We were struggling and leaving [sic] miserable life in our village. We had no choices accept travel to Hong Kong. We travel to Hong Kong in 1996.

 

13. I my husband worked very hard to provide our children. We also tried to bring our children in Hong Kong but due to the restrictive immigration policy we could not bring our son in Hong Kong. I my husband were working hard to secure our children's future. So later we could reunite for the rest of our lives.

 

17.               The appellants applications were considered by reference to EC-DR.1.1 Appendix FM, which provides:

 

Section EC-DR: Entry clearance as an adult dependent relative

EC-DR.1.1. The requirements to be met for entry clearance as an adult dependent relative are that-

(a) the applicant must be outside the UK;

(b) the applicant must have made a valid application for entry clearance as an adult dependent relative;

(c) the applicant must not fall for refusal under any of the grounds in Section S-EC: Suitability for entry clearance; and

(d) the applicant must meet all of the requirements of Section E-ECDR: Eligibility for entry clearance as an adult dependent relative.

 

18.               E-ECDR reads:

 

Section EC-DR: Entry clearance as an adult dependent relative

EC-DR.1.1. The requirements to be met for entry clearance as an adult dependent relative are that-

(a) the applicant must be outside the UK;

(b) the applicant must have made a valid application for entry clearance as an adult dependent relative;

(c) the applicant must not fall for refusal under any of the grounds in Section S-EC: Suitability for entry clearance; and

(d) the applicant must meet all of the requirements of Section E-ECDR: Eligibility for entry clearance as an adult dependent relative.

Section E-ECDR: Eligibility for entry clearance as an adult dependent relative

E-ECDR.1.1. To meet the eligibility requirements for entry clearance as an adult dependent relative all of the requirements in paragraphs E-ECDR.2.1. to 3.2. must be met.

Relationship requirements

E-ECDR.2.1. The applicant must be the-

(a) parent aged 18 years or over;

(b) grandparent;

(c) brother or sister aged 18 years or over; or

(d) son or daughter aged 18 years or over of a person ("the sponsor") who is in the UK.

E-ECDR.2.2. If the applicant is the sponsor's parent or grandparent they must not be in a subsisting relationship with a partner unless that partner is also the sponsor's parent or grandparent and is applying for entry clearance at the same time as the applicant.

E-ECDR.2.3. The sponsor must at the date of application be-

(a) aged 18 years or over; and

(b)

(i) a British Citizen in the UK; or

(ii) present and settled in the UK; or

(iii) in the UK with refugee leave or humanitarian protection; or

(iv) in the UK with limited leave under Appendix EU, in accordance with paragraph GEN.1.3.(d)

E-ECDR.2.4. The applicant or, if the applicant and their partner are the sponsor's parents or grandparents, the applicant's partner, must as a result of age, illness or disability require long-term personal care to perform everyday tasks.

E-ECDR.2.5. The applicant or, if the applicant and their partner are the sponsor's parents or grandparents, the applicant's partner, must be unable, even with the practical and financial help of the sponsor, to obtain the required level of care in the country where they are living, because-

(a) it is not available and there is no person in that country who can reasonably provide it; or

(b) it is not affordable.

Financial requirements

E-ECDR.3.1. The applicant must provide evidence that they can be adequately maintained, accommodated and cared for in the UK by the sponsor without recourse to public funds.

E-ECDR.3.2. If the applicant's sponsor is a British Citizen or settled in the UK, the applicant must provide an undertaking signed by the sponsor confirming that the applicant will have no recourse to public funds, and that the sponsor will be responsible for their maintenance, accommodation and care, for a period of 5 years from the date the applicant enters the UK if they are granted indefinite leave to enter.

Section D-ECDR: Decision on application for entry clearance as an adult dependent relative

D-ECDR.1.1. If the applicant meets the requirements for entry clearance as an adult dependent relative of a British Citizen or person settled in the UK they will be granted indefinite leave to enter.

D-ECDR.1.2. If the applicant meets the requirements for entry clearance as an adult dependent relative and the sponsor has limited leave the applicant will be granted limited leave of a duration which will expire at the same time as the sponsor's limited leave, and subject to a condition of no recourse to public funds. If the sponsor applies for further limited leave, the applicant may apply for further limited leave of the same duration, if the requirements in EC-DR.1.1. (c) and (d) continue to be met, and subject to no recourse to public funds.

D-ECDR.1.3. If the applicant does not meet the requirements for entry clearance as an adult dependent relative the application will be refused.

 

19.               It was not accepted by the decisionmaker that the appellants could satisfy the requirements of the Rules. It is particularly noted in the refusal:

 

You have disclosed no disability; you have provided no evidence and make no statement that would lead me to consider that you are unable to care for yourself on a daily basis, i.e. to wash and dress yourself; prepare food for yourself. I am satisfied that you have demonstrated no exceptional circumstances.

 

You have stated that you are unemployed and that your mother supports you. However, you have provided no details as to your financial commitments in Nepal. Even if I accept that you do receive financial assistance from your mother, I am satisfied that you are a fit and capable adult who is able to look after yourself.

 

Furthermore, you have not demonstrated that any financial assistance that you receive cannot continue. Based on the documents that you have submitted and the information that you have provided. I am not satisfied that you require, due to either age, illness or disability, long-term personal care to perform everyday tasks. I therefore refuse your application under paragraph EC-DR1.1(d) of Appendix FM of the Immigration Rules (E-ECDR 2.4).

 

20.               Neither can the appellants satisfy the eligibility requirements for adult dependent children of former Gurkha soldiers set out in the Secretary of State discretionary policy as they are over 30 years of age.

 

ANNEX K - Adult Children of Former Gurkhas

1.        For the purposes of this guidance, a former Gurkha is a Gurkha who completed their service in the Brigade of Gurkhas of the British Army between 1948 and 1 July 1997. Definition of an adult child of a former Gurkha

2.        For the purposes of this policy, an adult child is the son or daughter of a former Gurkha. See further guidance on the relationship to the sponsor in paragraph 11 of Annex K of this guidance. Who is not covered by this guidance.

3.        Other adult relatives aged 18 or over who might claim to be dependent on a former Gurkha such as parents, grandparents, grandchildren, siblings or wider family members of a former Gurkha are outside the remit of this policy. Any applications from parents, grandparents, siblings or adult children (who do not qualify under this policy) aged 18 or over of a former Gurkha, settled in the UK, must be made overseas under the adult dependent relative provisions of Appendix FM of the Immigration Rules, and considered under those Rules.

4.        There are no specific Immigration Rules to cover wider family members such as the niece, nephew, aunt, uncle, cousin or grandchild of a former Gurkha and they are outside the scope of this policy. Those wider family members would have to qualify in their own right for leave to enter or remain in the UK under the Immigration Rules e.g. if they wish to study or work in the UK they would need to apply under the Points Based System rather than rely on a family relationship with a former Gurkha to seek to obtain leave.

5.        Spouses, civil partners, unmarried or same sex partners, children under 18 and widows of former Gurkhas are covered by existing published guidance (see background to the policy in paragraphs 6-8 below) and are therefore outside the scope of this policy.

 

21.               In relation to eligibility under the terms of the policy:

 

Settlement for adult children of former Gurkhas

 

9. In order for settlement to be granted to the adult child of a former Gurkha under this policy, a valid application for entry clearance must be made in accordance with paragraphs 24-30 of the Immigration Rules and the applicant will normally have to meet the following conditions:

1. The former Gurkha parent has been, or is in the process of being granted settlement under the 2009 discretionary arrangements; and

2. The applicant is the son or daughter of the former Gurkha; and

3. The applicant is outside the UK; and

4. The applicant is 18 years of age or over and 30 years of age or under on the date of application (including applicants who are 30 as at the date of application); and

5. The applicant is financially and emotionally dependent on the former Gurkha; and

6. The applicant was under 18 years of age at the time of the former Gurkha's discharge; (or if the applicant was born after discharge see guidance in paragraph 16 of Annex K of this guidance) and

7. The Secretary of State is satisfied that an application for settlement by the former Gurkha would have been made before 2009 had the option to do so been available before 1 July 1997; and

8. The applicant has not been living apart from the former Gurkha for more than two years on the date of application, and has never lived apart from the sponsor for more than two years at a time, unless this was by reason of education or something similar (such that the family unit was maintained, albeit the applicant lived away); and

9. The applicant has not formed an independent family unit; and

10. The applicant does not fall to be refused on grounds of suitability under paragraph 8 or 9 of Appendix Armed Forces to the Immigration Rules or those provisions of Part 9 of the Immigration Rules (general grounds for refusal) that apply in respect of applications made under Appendix Armed Forces.

 

22.               The appellants are unable to qualify under the discretionary policy set out by the Secretary of State to resolve what was perceived as a 'historic wrong' in the treatment of family members are former Gurkha soldiers who served in the British Army. The appellants were also unable to qualify under the Immigration Rules which set out the basis in the view of the Secretary of State for permitting a person who may otherwise be unable to enter the United Kingdom as a result of being over 18, but otherwise has special circumstances or needs, to secure leave to enter.

23.               The appellant therefore sought to rely on Article 8 ECHR, but Article 8 does not give a person the right to choose where they wish to live. The primary purpose of Article 8 is to protect against arbitrary interferences with private and family life, home, and correspondence by a public authority in which regard must be had to the fair balance that has to be struck between the competing interests of the individual and of the community as a whole.

24.               The best practice approach to assessing the merits of an article 8 is to follow the guidance set out by the House of Lords in R (on the application of Razgar) v Secretary of State for the Home Department [2004] UKHL 27:

 

i)               Will the proposed removal be an interference by public authority with the exercise of the applicant's right to respect for his private or (as the case may be) family life?

ii)            If so, will such interference have consequences of such gravity as potentially to engage the operation of article 8?

iii)          If so, is such interference in accordance with the law?

iv)          If so, is such interference necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the rights and freedoms of others?

v)             If so, is such interference proportionate to the legitimate public end sought to be achieved?

 

25.               In this appeal the Judge answered the first of the Razgar questions in the negative, and so was not required to consider the remaining four questions and, in particular, the question of the proportionality of the decision.

26.               Much was made by Mr Moll of the circumstances in which the family unit was separated when the sponsor and her husband went to Hong Kong following their other son having been granted permission to settle and work there. It was submitted that there was no choice but for the family to take this course of action as a result of the poor living conditions of the family in Nepal.

27.               Further examination of this claim during the course of hearing shows that it was not a case of the sponsor and her husband being forced from the family home and farmland in the hills of Nepal as a result of being destitute or having to flee the land as a result of natural or man-made disasters, but as a result of them having the ability to better themselves by working in Hong Kong, where they could you earn a greater rate of pay and send remittances home. This is not a phenomenon unique to this family as statistics from 2010 show the formal remittance from the 3 million Nepali migrant workers across the globe reaching Rs 262 billion.

28.               It was not made out on the information available to the Judge in connection with this application that the standard of such accommodation or the lifestyle of the appellants as subsistence farmers is sufficient to establish hardship sufficient to amount to a breach of human rights. The general situation must be taken into account as must what is generally accepted in the society in question. The description of the lifestyle experience by the appellants in Nepal was not shown to be anything other than that normally experienced by subsistence farmers in that region in Nepal.

29.               It is accepted that this is not a commercial agricultural venture run by the appellants in Nepal as subsistence farming occurs when farmers grow food crops to meet the needs of themselves and their families on smallholdings. It was not made out the appellants do not produce enough produce to survive and meet their local requirements even if there was little or no surplus. The comment of the ECO in the refusal of the Appellants, having provided no details of their financial commitments in the Nepal is same situation which existed before the Judge.

30.               I find no arguable merit in the challenge to the Judge's decision that the separation of this family unit, when the sponsor and her husband went to Hong Kong between 1996 and 2005, was a voluntary act. The evidence supports the finding that during this time the appellants, who would have been between 25 and 34 benefiting from remittances that may have been sent, but otherwise led independent lives.

31.               Following the unfortunate death of the appellant's father, the sponsor returned to Nepal where she lived with the appellants until she applied for entry clearance and came to the United Kingdom. It was not made out before the Judge that at that time family life recognised by Article 8 existed between the sponsor and her adult sons.

32.               The Judge accepted that some remittances were sent by the sponsor from the United Kingdom to Nepal, but it was argued by Mr Moll on behalf of the appellants that there was further evidence that the pension authorities had confirmed payment of a pension into a bank account to which, it was claimed, the appellants had access in Nepal.

33.               The letter from the Pension Payments and Information Office dated 19 March 2018 confirms a pension payment to the sponsor, with the relevant exchange rate, and stating the monthly pension is credited at the end of every month into the relevant bank account. That may be so but there was insufficient evidence before the Judge of regular withdrawals from the account or evidence that such withdrawals were required for the purposes of meeting essential needs of the appellants sufficient to create the necessary element of dependency. It was clear that family life recognised by Article 8 had ended well before 2018. The Upper Tribunal was also not referred to bank statements relating to the account in question to enable the account history to be established.

34.               The Judge clearly undertook the necessary holistic assessment of the evidence and having done so concluded that the appellants had not discharged the burden upon them to establish that family life recognised by Article 8 existed. It is not made out that is a decision outside the range of those reasonably available to the Judge on the evidence sufficient to warrant the Upper Tribunal interfering any further in this matter. In this case there is no evidence of any special impact upon the appellants of their separation from their mother.

 

 

Decision

 

35.               There is no material error of law in the Immigration Judge's decision. The determination shall stand.

 

Anonymity.

 

36.               The First-tier Tribunal made no order pursuant to rule 45(4)(i) of the Asylum and Immigration Tribunal (Procedure) Rules 2005.

 

I make no such order pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008.

 

 

Signed.......................................................

Upper Tribunal Judge Hanson

Dated 27 August 2021

 


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