Ghising & Ors (Ghurkhas/BOCs : historic wrong; weight) (Nepal) [2013] UKUT 567 (IAC) (28 August 2013)

Upper Tribunal

(Immigration and Asylum Chamber)

Ghising and others (Ghurkhas/BOCs: historic wrong; weight) [2013] UKUT 567 (IAC)

THE IMMIGRATION ACTS

Heard at Field House	Determination Promulgated
On 24^th July 2013	On 22^nd August 2013

Before

upper tribunal judge peter lane

UPPER tribunal JUDGE DEBORAH TAYLOR

Between

roshan ghising

kishor rai

chandra kala rai

yosa devi rai

Appellants

and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

(IN RESPECT OF mr ghising)

Entry Clearance Officer – New Delhi

(IN RESPECT OF THE rai Family)

Respondents

Representation:

For the Appellants: Mr C Jacobs, instructed by Howe & Co Solicitors

(for Mr Ghising)

Mr R Jesurum, instructed by Howe & Co Solicitors (for the Rai family)

For the Respondent: Mr S Ouseley, Senior Home Office Presenting Officer

(1) In finding that the weight to be accorded to the historic wrong in Ghurkha ex-servicemen cases was not to be regarded as less than that to be accorded the historic wrong suffered by British Overseas citizens, the Court of Appeal in Gurung and others [2013] EWCA Civ 8 did not hold that, in either Gurkha or BOC cases, the effect of the historic wrong is to reverse or otherwise alter the burden of proof that applies in Article 8 proportionality assessments.

(2) When an Appellant has shown that there is family/private life and the decision made by the Respondent amounts to an interference with it, the burden lies with the Respondent to show that a decision to remove is proportionate (although Appellants will, in practice, bear the responsibility of adducing evidence that lies within their remit and about which the Respondent may be unaware).

(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.

(4) Accordingly, where it is found that Article 8 is engaged and, but for the historic wrong, the Appellant would have been settled in the UK long ago, this will ordinarily determine the outcome of the Article 8 proportionality assessment in an Appellant’s favour, where the matters relied on by the Secretary of State/ entry clearance officer consist solely of the public interest in maintaining a firm immigration policy.

(5) It can therefore be seen that Appellants in Gurkha (and BOC) cases will not necessarily succeed, even though (i) their family life engages Article 8(1); and (ii) the evidence shows they would have come to the United Kingdom with their father, but for the injustice that prevented the latter from settling here earlier. If the Respondent can point to matters over and above the public interest in maintaining a firm immigration policy, which argue in favour of removal or the refusal of leave to enter, these matters must be given appropriate weight in the balance in the Respondent’s favour. Thus, a bad immigration history and/or criminal behaviour may still be sufficient to outweigh the powerful factors bearing on the Appellant’s side of the balance.

DETERMINATION AND REASONS

1. These appeals come to us by an Order from the Court of Appeal dated 14^th February 2013, following the handing down on 21 January of the judgment of that Court in Gurung and others [2013] EWCA Civ 8. In that Order, the Court set aside the previous determinations of the Upper Tribunal insofar as they relate to the question of proportionality under Article 8(2) and remitted the appeals to the Upper Tribunal to make fresh decisions on that question. The cases were heard consecutively on the same day and remitted in the same terms and it is therefore appropriate to deal with both matters together since they involve the same legal arguments and are based on similar facts, albeit that Mr Ghising’s application was made in country and those of Kishor, Chandra and Yosa Rai (“the Rai family”) from out of country. Mr Ghising made an application for indefinite leave to remain in the UK as the dependent relative of a person present and settled here, having come to the UK as a student on 14^th January 2007. The Rai family applied for entry clearance under paragraph 317 for indefinite leave to enter as dependent relatives. Both cases concern dependent adult children of veterans of the Gurkha Brigade (the Sponsors) who have settled in the UK.

2. Mr Ouseley did not seek to argue that the findings of fact made by the Upper Tribunal had been challenged by the Respondent in the Court of Appeal and it is therefore on the basis of those facts that we make our decision today.

Mr Ghising’s appeal

The facts

3. The Appellant is a citizen of Nepal born on 16^th July 1986. His father enlisted in the Brigade of Gurkhas on 23^rd November 1968 and was discharged on 6^th February 1992. He first became eligible for settlement in the UK as a consequence of his service in the British army in 2009, and on 4^th August 2009 was granted indefinite leave to remain here. His mother was granted indefinite leave one month later and on 25^th September 2009 they arrived in the UK. The Appellant himself had come here as a student on 14^th January 2007 with leave until 31^st December 2010.

4. The Appellant applied for indefinite leave to remain as a dependent of his father but was refused on 29^th July 2011. He appealed and his appeal was dismissed on 14^th September 2011. That decision was subsequently set aside and re-made and dismissed again by a panel of the Upper Tribunal (Mrs Justice Lang DBE and Upper Tribunal Judge Jordan) in Ghising (family life – adults – Gurkha policy) [2012] UKUT 160 (IAC).

5. The Appellant's father wished to settle in the UK soon after his discharge ie in 1992 but was not permitted to do so because at that time Gurkhas who had served in the British army were not given the same rights to apply for settlement as other foreign and commonwealth nationals serving in the British Armed Forces. The Appellant’s father said in his unchallenged statement dated 31^st August 2011:

“It would have been my firm intention to apply for settlement in the UK shortly after my discharge if I had been allowed to apply at that time. Sadly despite my long and vigorous military career this right was not available to my family or me for many years to come. If we had been allowed to come at this time then Roshan would only have been 6 years old.”

6. It is accepted by the Respondent that if the Appellant had accompanied his father to the UK whilst he was still a minor he would have been given indefinite leave to remain.

7. In Ghising, the Tribunal recorded that the Respondent’s representative at the hearing before the panel conceded that the Appellant had established that he enjoyed family life with his parents and that Article 8 was engaged. The panel stated:

“In our judgment the evidence as at the date of the hearing establishes that the appellant and his parents genuinely enjoy a close-knit family life in which they value and depend upon each other for mutual support and affection. On the basis of the authorities we have cited above this is sufficient to engage Article 8. Although their family life was interrupted when the appellant came to the UK to study the appellant remained financially and emotionally dependent upon his parents during that period and their normal family life resumed as soon as his parents were above to settle in the UK" [72]

8. Finally, the panel, having found that the Appellant enjoyed a close-knit family relationship with his parents and that they value and enjoy each other’s company on a daily basis and his parents depend on him, concluded that the removal of the Appellant to Nepal would severely interfere with his family life and the family life of his parents, Mr & Mrs Ghising. The panel also accepted that it was not reasonable to expect Mr & Mrs Ghising to return to Nepal and the distance between the UK and Nepal means that the scope for family visits will be limited.

Mr Jacobs’ Submissions

9. Mr Jacobs submitted that on the basis of the findings of fact the panel ought to have allowed the appeal. Both of the reasons given by the panel for finding that the Appellant’s removal would not be disproportionate were found to be wrong by the Court of Appeal.

10. First, the panel stated that the weight to be given to the historic injustice suffered by the Gurkhas should be given limited weight. They accepted that they ought to apply the principle which the Court of Appeal had developed in the cases concerning British Overseas Citizens, namely that the historic injustice and its consequences are to be taken into account when assessing proportionality under Article 8(2). The panel stated:

“However it is important to bear in mind that there are significant differences between the position of Gurkhas and that of British Overseas Citizens. Gurkhas were citizens of Nepal, not the UK. They were not entitled as a right to live in the UK. Moreover the exclusion of British overseas citizens has been formally recognised as racially and sexually discriminatory unlike the policy excluding Gurkhas. We therefore agree with the conclusion of Judge McKee in KG that the ‘historical wrong’ perpetuated upon Gurkhas was not as severe as that perpetrated upon British overseas citizens. In our view it carries substantially less weight.”

11. However at paragraph 41 of their judgment in Gurung, the Court of Appeal said:

“We do not consider that a judgment about the egregiousness of the injustice that was suffered by the Gurkhas as compared with that suffered by the BOCs should be a relevant factor in the balancing exercise. As submitted on behalf of NR, Ghising and KR, the crucial point is that there was an historic injustice in both cases, the consequence of which was that members of both groups were prevented from settling in the UK. That is why the historic injustice is such an important factor to be taken into account in the balancing exercise and why the applicant dependent child of a Gurkha who is settled in the UK has such a strong claim to have his Article 8(1) right vindicated notwithstanding the potency of the countervailing public interest in the maintaining of a firm immigration policy. There is no place in the balancing exercise for making fine judgments as to whether one injustice is more immoral or worthy of condemnation than another. Such judgments (which would in any event be difficult to weigh) may be relevant in the political plain. They are not relevant to the making of decisions as to whether it is proportionate to interfere with an individual’s Article 8(1) rights.

…

If a Gurkha can show that but for the historic injustice he would have settled in the UK at a time when his dependent (now) adult child would have been able to accompany him as a dependent child under the age of 18 that is a strong reason for holding that it is proportionate to permit the adult child to join his family now. To that extent the Gurkha and BOC cases are similar. That is why we cannot agree that, as a general rule, the weight accorded to the injustice should be substantially different in the two cases”.

12. In summary, the Court of Appeal recognised the existence of a difference between BOCs and Gurkhas, the position of Gurkhas being less secure, but in the absence of evidence of adverse information about an adult dependent child the difference between the two groups should be given little weight.

13. Mr Jacobs argued that when assessing the weight to be attached to the interests of immigration control it was incumbent on the Tribunal to consider the nature and extent of the consequences of the historic injustice to the Appellant’s father and his immediate family rather than examine the nature of the wrong itself. He recognised that there will be cases where it is not possible to compensate, for example where children had embarked upon independent lives and Article 8 would therefore have no purpose. However in this case where family life has been accepted, the effect of the historic injustice was to reverse the usual balance of Article 8 issues.

14. Mr Jacobs relied on the comment of Sedley LJ as at paragraph 15 of Patel v ECO Mumbai [2010 EWCA Civ 17:

“As the individual cases to which I now turn illustrate, the effect of this is to reverse the usual balance of Article 8 issues. By the time they come to seek entry clearance adult children may well no longer be part of the family life of British overseas citizens who have finally secured British citizenship. If so the threshold of Article 8(1) will not have been crossed and the proportionality of excluding them will not be an issue. If however they come within the protection of Article 8(1) the balance of factors determining proportionality for the purposes of Article 8(2) will be influenced, perhaps decisively by the fact (if it is a fact) that, but for the history recounted in NH (India) the family would or might have settled here long ago.”

15. The ratio of Patel was, Mr Jacobs said, that where Article 8 was engaged, the fact that but for the historic wrong the Appellant would have settled in the UK long ago will ordinarily determine the outcome of the proportionality assessment.

16. Mr Jacobs referred us to the military covenant which reads:

“Soldiers will be called upon to make personal sacrifices – including the ultimate sacrifice – in the service of the national. In putting the needs of the nation and the army before their own they forego some of the rights enjoyed by those outside the armed forces. In return British soldiers must be able to always expect fair treatment to be valued and respected as individuals and that they (and their families) will be sustained and rewarded by commensurate terms and conditions of service.”

17. He submitted that the debt of honour owed to the Gurkhas has been expressly recognised by the House of Commons Select Committee on Home Affairs and in the opposition day debate which took place on 29^th April 2009. In Limbu [2008] EWHC 221 (Admin) [2008] HRLR 48, Blake J stated:

“Rewarding long and distinguished service by the grant of residence in the country for which the service was performed would in my judgment be a vindication and an enhancement of this covenant.”[72]

18. Mr Jacobs referred us to paragraph 64 of the same judgment where Blake J considered the paradox whereby Falkland islanders only became entitled to become full British citizens following the successful military outcome and loss of British Armed Forces in the service of Her Majesty.

19. Blake J said:

“It would be curious if the Home Office had concluded that the islanders themselves who may have stayed put for many years were regarded as having a close enough connection with the UK but those who risk their lives and limbs to bring them their freedom did not. This would seem to irrationally subvert the historic debt that the Prime Minister and the Home Secretary spoke of.”[64]

20. The second reason for finding that removal would not be disproportionate given by the panel was that the Respondent had developed a scheme, in the form of a policy, which was capable of addressing the historic wrong and contained within it a flexibility which would avoid conspicuous unfairness.

21. The background is as follows. For many years Gurkha veterans were treated less favourably than other comparable non-British Commonwealth citizens serving in the British army. The Secretary of State had a concessionary policy outside the Immigration Rules which allowed Commonwealth citizens subject to immigration control who were serving and former members of the British Armed Forces to obtain, on their discharge, indefinite leave to enter and remain in the UK, but Gurkhas were not included in the policy. In October 2004 Immigration Rules A76 E-K were introduced to enable Gurkha veterans with at least four years’ service who had been discharged from the armed services within the past two years to apply for settlement in the UK. However only Gurkhas who had been discharged on completion of engagement on or after 1 July 1997 were eligible to apply. At the same time the Secretary of State introduced a policy outside the Rules under which Gurkhas were permitted to settle in the UK even if they had been discharged before 1 July 1997 and/or more than two years prior to the date of application if there were strong reasons why settlement in the UK was appropriate in the particular case by reason of the individual’s existing ties with the UK. Entry clearance guidance was contained in the Diplomatic Service Procedures Chapter 9, paragraph 14, replaced in January 2009 by the Settlement Entry Clearance Guidance Chapter 12, paragraph 16.

22. In June 2009 the Respondent stated that any Gurkha with more than four years’ service discharged before 1^st July 1997 would be eligible for settlement in the UK under the terms of a discretionary policy set out in IDIs, Section 2(a) of Chapter 15, which was entitled “Persons seeking settlement: HM Forces” and contained a provision relating to the dependants of Gurkhas. The policy was superseded in March 2010; but it is this policy with which this appeal is concerned. In fact, both the 2009 and March 2010 policies state that in exceptional circumstances discretion may be exercised in individual cases where the dependant is over the age of 18.

23. The panel said:

“118. In considering a claim of exceptional circumstances the respondent can and should take into account the fact that an adult dependant such as the appellant would have been able to enter the UK as a minor if his father had been given leave to enter at the appropriate time, shortly after discharge.

119. The scheme that the respondent has developed is therefore capable of addressing the historical wrong and contains within it a flexibility that in most cases will avoid conspicuous unfairness. Furthermore, although not an Immigration Rule the respondent could not properly fail to adopt the obligation set out in paragraph 2 of the rules, namely that decision makers within the Home Office and UKBA should perform their duties so as to comply with the provisions of the Human Rights Act 1998, in particular the judicious recognition of exceptional circumstances in the case of an adult dependant.”

24. The Court of Appeal rejected that argument and said:

“We confess to having some difficulty in following the reasoning at paras 117 to 119 and in seeing in particular why the fact that an adult dependent child may be permitted to settle here in exceptional circumstances leads to the conclusion that the weight to be given to the historic injustice in conducting the Article 8(2) balancing exercise is limited. The flexibility of the exceptional circumstances criterion is such that it does not require the historic injustice to be taken into account at all. It certainly does not prescribe the weight to be given to the injustice, if indeed it is to be taken into account. The requirement to take the injustice into account in striking a fair balance between the Article 8(1) right and the public interest in maintaining a firm immigration policy is inherent in Article 8(2) itself and it is ultimately for the court to strike that balance. This requirement does not derive from the fact that the policy permits an adult dependent child to settle here in exceptional circumstances. Accordingly we reject this additional reason given by the UT for holding that the weight to be given to the historic injustice is limited” [43].

25. Mr Jacobs submitted that Gurkhas form a special and exceptional category of migrant and are a finite and diminishing group. The Appellant has an impeccable immigration history having lived in the UK lawfully as a student since January 2007. But for the historic injustice he would have settled in the UK many years ago. The family are owed a debt of honour and have behaved in an exemplary fashion. The Appellant’s father was on standby during the Falklands conflict and three of his uncles were engaged in active combat. The Secretary of State on the other hand who is responsible for the very fact that the Appellant is required to make an application would struggle to justify removal of a family member as proportionate.

26. Mr Jacobs submitted that the judgment of the Court of Appeal was determinative of the issue of proportionality in the instant appeal. The only reasons why the Appellant did not succeed before the Upper Tribunal had been rejected by the Court of Appeal.

Mr Ouseley’s submissions

27. Mr Ouseley accepted that the Respondent did not challenge the findings of fact made by the Tribunal in Ghising and said that the decision on proportionality was not one which he could concede and was a matter for us. He reminded us that in this case there was no separation of the family because the Appellant was in fact living with his parents here. He said that when he came he would have had to satisfy an Entry Clearance Officer that he was coming for a temporary purpose.

28. He said that he would have liked to cross-examine the Appellant in relation to the evidence cited in the skeleton argument, that he had only one close relative in Nepal, an 87 year old grandfather who lived in a remote area. Mr Ouseley said that this contradicted the submission that it was the custom amongst Nepalese people for the youngest son to remain living with his parents even after marriage, to care for them when they became elderly. It appeared that no one was caring for the grandfather. On the other hand he accepted that he was bound by the findings in the Court of Appeal and recognised that there had been no challenge to the findings made by the Tribunal in Ghising.

The Rai Family Appeals

The Facts

29. The Appellants are citizens of Nepal born in 1987, 1988 and 1989 respectively. In October 1973 their father had enlisted in the Seventh Gurkha Rifles and was discharged in May 1989 with the rank of a sergeant, and with a South Atlantic medal with rosette and long service and a good conduct medal. During his sixteen years of service he was only allowed three years accompanied service and was unable to participate in his children’s upbringing as much as he wished. In his witness statement he said that if he had had the opportunity to apply for settlement immediately after his discharge he would have applied together with his family. His children would have been very young at that time.

30. He was granted indefinite leave to remain on 19^th March 2007 and activated his visa two years later, in March 2009. The Appellants made their applications in January 2010 and were refused on 16^th August 2010. The Appellants’ case then came before Designated Immigration Judge Woodcraft who dismissed their appeals on 17^th May 2011. Permission to appeal was sought and subsequently granted and the matter came before Senior Immigration Judge Waumsley on 20^th February 2012. He set aside the Designated Immigration Judge’s decision and, on 5^th March 2012 re-made it and again dismissed the appeals. Permission to appeal to the Court of Appeal was granted by that Court and on 14^th February 2013 the Court of Appeal set aside Upper Tribunal Judge Waumsley’s decision, insofar as it related to the question of proportionality under Article 8(2) and remitted the appeal to the Upper Tribunal.

Mr Jesurum’s submissions

31. Mr Jesurum was present during Mr Jacobs’ submissions and, whilst he was not in a position to adopt them said that he was in agreement with all that had been said.

32. With respect to family life, he submitted that whatever the strength of family life the Appellants had the right to its enjoyment. The Gurkhas’ inability to be accompanied by their family inevitably meant that family life was delayed and children were often born late into the relationship. The fact that there had been a voluntary separation between the Sponsor and his family did not bring family life to an end. This family in particular had foregone their right to enjoyment of family life through the father’s service, and the sacrifices which the family had made in the early years required greater weight to be given to their right to enjoy family life together now.

33. In assessing the proportionality of the interference with the Sponsor’s rights the existence of other family bonds which the Sponsor or an Appellant may or may not have is not a relevant consideration. It is the balance between the interference and the legitimate aim which must be assessed, not the balance between the rights interfered with and those not interfered with.

34. It was not correct to say as Judge Waumsley had that the Sponsor had freely chosen to come to the UK and therefore the interference was proportionate. His only choice was either to remain in Nepal or to take up the long delayed offer of settlement in the UK. His wife had a similar choice and had decided to stay which showed the strength of her bond with the children.

35. He submitted that the Appellants’ case was in line with the British Overseas Citizens’ cases in that they fell within a category of persons unjustly denied entry for many years and, by the time the situation was rectified, the dependent children were over age. He accepted that the challenge to the differential treatment to Gurkhas had failed in that the courts had not found it to be contrary to Article 14 of the Convention; but that did not mean that it was a relevant factor.

36. He also relied on the case of Patel which he said adopted a compensatory approach to the historic wrong. Indeed the judgment referred in terms to “righting the wrong” and “compensation”.

37. Mr Jesurum accepted that the fact the Gurkhas had suffered an historic wrong was not determinative but he said that the starting point should be that those wronged should be put in the position that they would have been in but for that wrong. He accepted that supervening factors may tilt the balance the other way, for example an adverse immigration history; but he also relied on paragraph 15 of the Patel judgment for the proposition that where there has been historic injustice and, but for that injustice the family would have settled long ago, the effect is to reverse what he said is the usual position in an Article 8 proportionality case. That, he said, was the ratio of the Court of Appeal judgment. He relied on paragraph 41 which said:

“That is why the historic injustice is such an important factor to be taken into account in the balancing exercise and why the applicant dependent child of a Gurkha who was settled in the UK has such a strong claim to have his Article 8(1) right vindicated notwithstanding the potency of the countervailing public interest in the maintaining of a firm immigration policy. “

38. He submitted that the language used by the Court of Appeal was indicative of an acceptance that the burden was reversed. The Court of Appeal referred to it being proportionate to permit the adult child to join the family rather than the usual approach of being disproportionate to refuse. Whilst in most cases the requirement of firm and fair immigration control would outweigh the respect due to family life, where there is historic injustice, the needs of the family will outweigh them.

39. Mr Jesurum submitted that when the Court of Appeal said that the historic injustice was such an important factor to be taken into account notwithstanding the potency of the countervailing public interest in maintaining a firm immigration policy, the Court was saying that there would have to be something equally strong to tip the balance back the other way, and the use of the term ‘notwithstanding’ indicated that the interests of immigration control were already accounted for.

40. He relied on the case of Huang v SSHD [2007] UKHL 11. The House of Lords said at paragraph 16:

“The authority will wish to consider and weigh all that tells in favour of the refusal of leave which is challenged with particular reference to justification under Article 8(2). There will in almost any case be certain general considerations to bear in mind: the general administrative desirability of applying known rules if a system of immigration control is to be workable, predictable, consistent and fair as between one applicant and another; the damage to good administration and effective control if a system is perceived by applicants internationally to be unduly porous, unpredictable or perfunctory; the need to discourage non-nationals admitted to the country temporarily from believing that they can commit serious crimes and yet be allowed to remain; the need to discourage fraud, deception and deliberate breaches of the law; and so on.”

41. He submitted that the requirements of fairness included the rectification of past injustice. It could not be argued that Gurkhas, being a tightly defined category of diminishing numbers of persons, could be said to be unduly porous. Neither was it unpredictable since there was a clear system of law setting out the correct approach. There was a stringent causation test. No fair-minded observer could consider it to be perfunctory.

42. In this particular case the Sponsor saw combat in the Falklands conflict on the front line of battle three close friends were severely injured and one killed. He was discharged after sixteen years’ service with the rank of sergeant. So far as the present situation is concerned he is employed as a security officer earning £1,500 per month and whilst applications by dependents of servicemen and ex-servicemen are not subject to accommodation or maintenance requirements the evidence shows that the Appellants would not become a burden on public funds. There are no countervailing considerations to which the Respondent can point other than the maintenance of immigration control.

Mr Ouseley’s submissions

43. Mr Ouseley submitted that Upper Tribunal Judge Waumsley had not made any findings of fact in relation to whether the Sponsor would have made an application for settlement on discharge but he accepted that the evidence on this issue was not challenged by the Presenting Officer at the hearing, either in cross-examination or in submissions. He said that a relevant factor to be considered was the Sponsor’s choice to join the Gurkhas and thereby bear the consequential separation of himself from the family. He rejected Mr Jesurum’s submission that in historic injustice cases the burden was reversed because if that is what the Court of Appeal had meant to say they would have done so. Indeed the Court of Appeal stated in terms that historic injustice was not determinative.

Findings and Conclusions

44. We accept the arguments from both representatives that the Secretary of State agreed to the Court of Appeal’s order of 14 February 2013 and at no stage challenged the findings of fact made by the Upper Tribunal in each case. Accordingly, the basis for our considerations is:

(a) It is accepted in both cases that there is family life between the Appellants and Sponsors.

(b) In both cases it has been accepted by the Respondent that the refusal amounts to an interference with the Appellant’s right to family life which has consequences of such gravity as to engage the operation of Article 8.

(c) The findings of the previous tribunals that the decisions are lawful and in pursuit of a legitimate aim were preserved by the Court of Appeal, which set aside the determinations only insofar as they related to the question of proportionality under Article 8(2).

45. In both cases the unchallenged evidence is that the Sponsors served with the Brigade of Gurkhas for many years and, on discharge, wished to settle in the UK. In Mr Ghising’s case he was discharged in 1992 after 23 years’ service and, had he been permitted to settle at that point, he would have been accompanied by his wife, his daughter and his son, the present Appellant, who would have been 6 years old. So far as the Rai family were concerned, the evidence before Upper Tribunal Judge Waumsley, and not subsequently challenged by the Respondent, is that, on his discharge, in 1989 the Sponsor would have applied for settlement with his wife and children had there been provision to do so. The children would then have been respectively 2, 1 and less than 1.

46. All the Appellants therefore meet the test articulated by Sedley LJ in Patel, that there be a causal nexus between the historic injustice and the actions of the Sponsors, namely that, but for the Gurkhas’ inability to settle in the UK at the date of discharge when their children were young (and certainly well below the age of 18), they would have come here long ago.

47. We reject Mr Jesurum’s submission that, whatever the nature and quality of family life, the Appellants had a right to enjoy it, and therefore Article 8(1) was inevitably engaged. That this proposition is not correct can be seen from paragraph 14 of Patel, where Sedley LJ said:

“You can set out to compensate for a historical wrong, but you cannot reverse the passage of time. Many of these children have now grown up and embarked on lives of their own. Where this has happened, the bonds which constitute family life will no longer be there, and art. 8 will have no purchase”.

48. But as Sedley LJ immediately went on to say “what may constitute an extant family life falls well short of what constitutes dependency”. In this regard, we note the useful analysis by the Tribunal in Ghising (at paragraphs 50 to 62) of the case law on family life between parents and adult children, culminating in the finding that:

“62. The different outcomes in cases with superficially similar features emphasises to us that the issue under Article 8(1) is highly fact-sensitive. In our judgment, rather than applying a blanket rule with regard to adult children, each case should be analysed on its own facts, to decide whether or not family life exists, within the meaning of Article 8(1).”

In Gurung, the Tribunal’s analysis was specifically endorsed by the Court of Appeal (see paragraph 46).

49. It is relevant to observe that, even where the facts compel a conclusion that protected family life within Article 8(1) exists, the strength of the family relationships can still be a relevant consideration in any resulting proportionality exercise. In the present cases, however, there is no issue as to the strength of the family life. The Tribunal in Ghising found that “the Appellant and his parents genuinely enjoy a close-knit family life, in which they value and depend upon each other, for mutual support and affection” [72]. In the case of the Rai family, the respondent accepted before Judge Waumsley that a protected family life existed; the Appellants were studying in Nepal and were “entirely dependent on their father for support and maintenance” (paragraph 36 of the determination). The latest unchallenged witness statements continue to make it clear that the Appellants are both emotionally and materially dependent on their parents.

50. We turn to the nub of this appeal, namely the approach to be taken to the fact of the historic injustice suffered by the Gurkhas in the proportionality exercise.

51. With respect to the British Overseas Citizens’ cases, we note that the Court of Appeal did not agree that as a general rule the weight accorded to the injustice should be substantially different from Gurkha cases.

52. We also note that, in Gurung, the Court of Appeal rejected the argument, which had found favour with the Tribunal in Ghising, that the existence of a policy permitting an adult dependent child to settle in exceptional circumstances meant that only limited weight has to be given to the historic injustice in conducting the proportionality assessment (see paragraph 43).

53. It is the submission of both representatives, pursued most vigorously by Mr Jesurum, that Sedley LJ’s comment in Patel that the effect of the historic wrong “is to reverse the usual balance of Article 8 issues” is authority for the proposition that there is some kind of “reversal of burden” in these cases distinctive from the normal Article 8 appeals. We consider that it is unhelpful to discuss burden in this context.

54. Firstly, when an Appellant has shown that there is family/private life and the decision made by the Respondent amounts to an interference with it, the burden lies with her to show that a decision to remove is proportionate (although Appellants will, in practice, bear the responsibility of adducing evidence that lies within their remit and about which the respondent may be unaware). It is hard to see what added burden Mr Jesurum is seeking to place on the Secretary of State.

55. Secondly, as Mr Ouseley submitted, if the Court of Appeal had wished to say anything about a reversal of burden in these cases they would have done so. The Court of Appeal cited paragraph 15 of the Patel judgment and said that even in the case of the BOCs:

“Sedley LJ went no further to say that the historic injustice might ‘perhaps’ be decisive. It is in any event binding on this court. The question is how it should be applied in the present appeals”. [32]

That seems to us to be a comment about weight, not burden.

56. The Court said that the question to be decided was whether the historic injustice suffered by Gurkhas should be accorded limited or substantial weight in the Article 8(2) balancing exercise. It seems clear from a reading of the determination as a whole that it was their view, depending on all the facts, that it should be given substantial weight.

57. It seems clear to us that the Court’s approach was a classically holistic one in which the decision maker is required to take into account all relevant factors. As the House of Lords said in Huang [2007] UKHL 11:

“The giving weight to facts such as these is not in our opinion aptly described as deference: it is the performance of the ordinary judicial task of weighing up the competing considerations on each side and according appropriate weight to the judgment of a person with responsibility for a given subject matter and access to special sources of knowledge and advice. That is how any rational judicial decision maker is likely to proceed”. [16]

58. And again, Lord Bingham in EB (Kosovo) v Home Secretary [2008] UKHL 41 [2009] 1 AC 1159 at paragraph 12 stated:

“There is in general no alternative to making a careful and informed evaluation of the facts of the particular case. The search for a hard-edged or bright line rule to be applied to the generality of cases is incompatible with the difficult evaluative exercise which Article 8 required.”

59. That said, we accept Mr Jacobs’ submission that where Article 8 is held to be engaged and the fact that but for the historic wrong the Appellant would have been settled in the UK long ago is established, this will ordinarily determine the outcome of the proportionality assessment; and determine it in an Appellant’s favour. The explanation for this is to be found, not in any concept of new or additional “burdens” but, rather, in the weight to be afforded to the historic wrong/settlement issue in a proportionality balancing exercise. That, we consider, is the proper interpretation of what the Court of Appeal were saying when they referred to the historic injustice as being such an important factor to be taken into account in the balancing exercise. What was crucial, the Court said, was the consequence of the historic injustice, which was that Gurkhas and BOCs:

“were prevented from settling in the U.K. That is why the historic injustice is such an important factor to be taken into account in the balancing exercise and why the applicant dependent child of a Gurkha who is settled in the UK has such a strong claim to have his article 8(1) right vindicated, notwithstanding the potency of the countervailing public interest in maintaining of a firm immigration policy”. [41]

In other words, the historic injustice issue will carry significant weight, on the Appellant’s side of the balance, and is likely to outweigh the matters relied on by the Respondent, where these consist solely of the public interest just described.

60. Once this point is grasped, it can immediately be appreciated that there may be cases where Appellants in Gurkha cases will not succeed, even though their family life engages Article 8(1) and the evidence shows they would have come to the United Kingdom with their father, but for the injustice that prevented the latter from settling here on completion of his military service. If the Respondent can point to matters over and above the “public interest in maintaining of a firm immigration policy”, which argue in favour of removal or the refusal of leave to enter, these must be given appropriate weight in the balance in the Respondent’s favour. Thus, a bad immigration history and/or criminal behaviour may still be sufficient to outweigh the powerful factors bearing on the Appellant’s side. Being an adult child of a UK settled Gurkha ex-serviceman is, therefore, not a “trump card”, in the sense that not every application by such a person will inevitably succeed. But, if the Respondent is relying only upon the public interest described by the Court of Appeal at paragraph 41 of Gurung, then the weight to be given to the historic injustice will normally require a decision in the Appellant’s favour.

Disposal

61. In the present cases, the Respondent does not rely on any additional factors of the kind just described. Mr Ouseley stated that Mr Ghising would have come to the UK for a temporary purpose when he applied for entry clearance as a student, but fell short of submitting that there had been any deception on his part. He was right to take that approach. There is no basis for a submission that Mr Ghising misled the Entry Clearance Officer in any way and no evidence to found a submission that he did not meet the requirements of the Rules, including intention, on application. Likewise, there is no evidence to show that the Rai family have done anything which requires us to give greater weight to the State’s interests.

62. In these circumstances, the course described in paragraph 60 above should be followed. We conclude that the fact the Sponsors and the Appellants suffered an historic injustice but for which the Appellants would have settled in the UK as children outweighs the interests of maintaining firm immigration control.

63. The appeals are allowed on human rights grounds (Article 8).

64. We have both contributed to this determination.

Signed Date

Upper Tribunal Judge Deborah Taylor

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	Upper Tribunal (Immigration and Asylum Chamber)
You are here: BAILII >> Databases >> Upper Tribunal (Immigration and Asylum Chamber) >> Ghising & Ors (Ghurkhas/BOCs : historic wrong; weight) (Nepal) [2013] UKUT 567 (IAC) (28 August 2013) URL: http://www.bailii.org/uk/cases/UKUT/IAC/2013/[2013]_UKUT_567_iac.html Cite as: [2013] UKUT 567 (IAC)

Upper Tribunal (Immigration and Asylum Chamber)