United Kingdom Immigration and Asylum (AIT/IAC) Unreported Judgments

IAC-FH-CK-V1

 

Upper Tribunal

(Immigration and Asylum Chamber) Appeal Number: HU/18368/2019 (V)

 

 

THE IMMIGRATION ACTS

 

 

Heard remotely from Field House	Decision & Reasons Promulgated
On 9 September 2021	On 28 September 2021

 

Before

 

UPPER TRIBUNAL JUDGE NORTON-TAYLOR

 

 

Between

 

Mr Nabin Sunuwar

(ANONYMITY DIRECTION not made)

Appellant

and

 

SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

 

 

Representation :

For the Appellant: Mr S Ahmed, Counsel, instructed by Castle Street Chambers

For the Respondent: Ms A Everett, Senior Home Office Presenting Officer

 

 

DECISION AND REASONS

Background

1.              This is the re-making decision in the appeal of Mr Sunuwar ("the Appellant") against the Respondent's refusal of his human rights claim made by way of an application for entry clearance to join his father ("the Sponsor") and stepmother in the United Kingdom.

2.              The Appellant is the son of a former Gurkha soldier. This re-making decision follows my previous error of law decision, promulgated on 15 June 2021, by which I found that the First-tier Tribunal had materially erred in law in respect of its finding that family life between the Appellant and the Sponsor did not exist. The error of law decision is annexed to this re-making decision.

3.              In re-making the decision in this case I have taken full account of the evidence contained in the Appellant's consolidated bundle, indexed and paginated 1-187 and that contained in the Respondent's original appeal bundle. The Sponsor was called to give brief oral evidence. He adopted his two witness statements dated 9 July 2021 and 20 May 2020. There was no cross-examination.

 

Submissions

4.              By way of submissions, Ms Everett, in her customary fair and realistic manner, made no challenge to the truthfulness of the Sponsor's evidence. She submitted that whilst the Entry Clearance Officer might have been correct to have refused the human rights claim in the first instance, there was now additional evidence before me, none of which was being challenged.

5.              Mr Ahmed relied on his helpful skeleton argument which included numerous references to the Appellant's consolidated bundle. He submitted that the evidence demonstrated continuing family life between the Appellant and the Sponsor. It disclosed that there was both emotional and financial dependency and, in the words of the relevant case-law, the support was "real", "committed" and "effective". Mr Ahmed submitted that once family life was found to exist the question of proportionality was well-settled. The historic injustice perpetrated against former Gurkha soldiers was in effect a decisive factor in the Appellant's favour.

 

Re-making the decision

6.              At the end of the hearing I announced to the parties that I would be allowing the Appellant's appeal on the basis that I found family life to exist and that it would be disproportionate to prevent the Appellant from re-joining his father in the United Kingdom. I now set out my reasons for these conclusions.

7.              The first point to be made is that none of the evidence before me has been challenged by the Respondent. It is clear that there was a family life between the Appellant and his father when the two lived together as part of a family unit in Nepal prior to the Sponsor coming to the United Kingdom to settle in 2010. I am satisfied that at that time and if it had been open to the family, the Sponsor had intended for the family unit to remain together, in other words that the Appellant would have accompanied the Sponsor to this country for settlement.

8.              Considering the evidence as a whole, with particular reference to the items flagged up by Mr Ahmed at paragraph 27(a)-(m) of his skeleton argument, it is plain that there has been continuing emotional and financial dependency by the Appellant on the Sponsor. There is evidence of frequent communications by various means and of the provision of financial support. I am satisfied that the financial support has gone to meet the Appellant's essential living needs.

9.              I also accept that the concerns as to the lack of evidence which I expressed in my error of law decision have been credibly addressed by the Sponsor at paragraph 5 of his most recent witness statement.

10.          I conclude that the evidence does, as Mr Ahmed submitted, disclose "real", "committed" and "effective" support provided by the Sponsor to the Appellant on an ongoing basis. Applying this factual matrix to the relevant case-law including, but not limited to Rai [2017] EWCA Civ 30, I find that there is family life for the purposes of Article 8(1).

11.          I turn then to the question of proportionality under Article 8(2). Applying the well-known jurisprudence including Ghising No 2 (Ghurkhas/BOCs: historic wrong; weight (Nepal) [2013] UKUT 567 (IAC) , Rai ( supra), and what is said in Patel (historic injustice; NIAA Part 5A) [2020] UKUT 351(IAC), I conclude that the historic injustice factor is of such significant weight as to tip the balance in the Appellant's favour, notwithstanding the important public interest in maintaining effective immigration control and all other matters arising under section 117B of the Nationality, Immigration and Asylum Act 2002, as amended.

12.          It follows that the Appellant's appeal succeeds on the basis that the Respondent's refusal of his human rights claim constituted a disproportionate interference with his family life and is therefore unlawful under section 6 of the Human Rights Act 1998.

 

Notice of Decision

The making of the decision of the First-tier Tribunal did involve the making of an error on a point of law and that decision has been set aside.

I re-make the decision by allowing the appeal on Article 8 ECHR grounds.

 

Signed H Norton-Taylor Date: 13 September 2021

Upper Tribunal Judge Norton-Taylor

 

TO THE RESPONDENT

FEE AWARD

As I have allowed the appeal and because a fee has been paid or is payable, I have considered making a fee award and have, in all the circumstances, decided to make a full fee award of £140.00.

 

Signed H Norton-Taylor Date: 13 September 2021

Upper Tribunal Judge Norton-Taylor

 

 

ANNEX: ERROR OF LAW DECISION

 

 

Upper Tribunal

(Immigration and Asylum Chamber) Appeal Number: HU/18368/2019

(V)

 

 

THE IMMIGRATION ACTS

 

 

Heard remotely from Field House	Decision & Reasons Promulgated
On 2 June 2021
	.......................................

 

Before

 

UPPER TRIBUNAL JUDGE NORTON-TAYLOR

 

Between

 

Mr Nabin Sunuwar

(ANONYMITY DIRECTION not made)

Appellant

and

 

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

 

 

Representation :

 

For the Appellant: Mr D Shrestha, Solicitor from Castle Street Chambers

For the Respondent: Ms A Everett, Senior Home Office Presenting Officer

 

 

DECISION AND REASONS

1.              The Appellant appeals against the decision of First-tier Tribunal Judge Andrew ("the judge"), promulgated on 12 November 2020, by which she dismissed the Appellant's appeal against the Respondent's refusal of his human rights claim made by way of an application for entry clearance to join his father and stepmother in the United Kingdom. The Appellant is the son of a former Gurkha soldier. On appeal to the First-tier Tribunal the central issue was whether there existed family life between the Appellant and his father and stepmother in this country.

2.              The judge referred herself to relevant authorities, including Rai [2017] EWCA Civ 320. She initially concluded that there had been family life between the Appellant and his father whilst the latter had resided in Nepal. However, the judge went on to find that "matters have moved on - not only with the passage of time." The judge relied on a previous decision of the First-tier Tribunal from 2017 in which a judge had concluded that the Appellant's "real family life" had been with his brother, who continued to reside in Nepal. Judge Andrew relied on this previous finding in her decision. In addition, she found that the Appellant's apparent plans to try and seek work in the Far East indicated that there was no longer family life between him and his father. Further, the judge noted the absence of significant evidence of dependency. Ultimately she concluded that there was no family life between the Appellant and his father (and stepmother) and accordingly dismissed the appeal without going on to consider the question of proportionality.

3.              The grounds of appeal put forward a number of challenges, including the assertion that the judge had erred in respect of the family life issue. In granting permission, Designated First-tier Tribunal Judge Shaerf noted that family life could exist in different forms and with different people at the same time. In addition, he regarded as arguable the contention that a plan or intention to seek work in the Far East was not an indication that family life had been broken.

4.              On 18 January 2021 the Respondent served a rule 24 response stating that the Appellant's appeal was "not opposed." At the hearing, Ms Everett confirmed that this remained the Respondent's position. She accepted that the judge had erred in her assessment of the family life issue.

5.              I indicated to the parties that this accorded with my preliminary view in respect of the judge's finding that family life did not exist. Whether or not there was family life between the Appellant and his brother in Nepal was not indicative of the absence of family life between the Appellant and his family in the United Kingdom. I agree with Judge Shaerf's observation that family life can indeed exist between different people in different places at the same time. I also agree with his view as to the Appellant's apparent plans to seek work in the Far East. On the evidence before the judge, these were just that; plans which had not yet been executed. Again, this factor did not go to show that any family life that had previously existed had been broken for this reason alone.

6.              The essential error arising from the judge's approach was that she failed to adequately assess the nature of the claimed relationship between the Appellant and his father, seen in the context of the existence of family life when the two last lived together in Nepal. With respect, the judge appeared to have allowed herself to be distracted by the presence of the brother in Nepal and the Appellant's hope that he might be able to obtain employment in the Far East at some point.

7.              I do share some of the concerns of the judge in respect of the lack of detailed documentary evidence as regards the issue of dependency, particularly relating to financial matters. However, in all the circumstances I am satisfied that the judge materially erred in law on the family life issue.

8.              I exercise my discretion and set the judge's decision aside.

9.              In terms of disposal, I see no need to remit this case to the First-tier Tribunal. Relevant fact-finding can be undertaken in the Upper Tribunal. This will be done through a resumed hearing, to be conducted remotely. Directions to progress the case are set out below.

10.          The First-tier Tribunal made no anonymity direction and nor do I.

 

Notice of Decision

The decision of the First-tier Tribunal involved the making of errors of law.

The decision of the First-tier Tribunal is set aside.

The decision shall be re-made by the Upper Tribunal following a resumed hearing in due course.

 

Directions to the parties

1) No later than 21 days after this decision is sent out, the appellant shall file and serve a consolidated bundle of all evidence relied on;

 

2) Oral evidence at the resumed hearing shall only be permitted if an updated witness statement for the sponsor has been filed and served in accordance with direction 1;

 

3) A Nepalese interpreter will be arranged by the Upper Tribunal;

 

4) If no oral evidence is to be called on behalf of the appellant, his representatives shall inform the Upper Tribunal of this forthwith;

 

5) With liberty to apply to amend these directions.

 

Signed H Norton-Taylor Date: 4 June 2021

Upper Tribunal Judge Norton-Taylor