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

 

Upper Tribunal

(Immigration and Asylum Chamber) Appeal Number: HU/10018/2015

 

 

THE IMMIGRATION ACTS

Heard at Field House	Decision & Reasons Promulgated
On 23 November 2017	On 30 November 2017

 

 

Before

 

THE HONOURABLE LORD MATTHEWS

SITTING AS AN UPPER TRIBUNAL JUDGE

DEPUTY UPPER TRIBUNAL JUDGE J M HOLMES

 

Between

 

ENTRY CLEARANCE OFFICER - NEW DELHI

Appellant

 

and

 

Mr Resham Bahadur Thapa Magar

(ANONYMITY DIRECTION not made)

Respondent

 

Representation :

 

For the Appellant: Mr I Jarvis, Home Office Presenting Officer

For the Respondent: Mr C Howells, Counsel, instructed by N.C. Brothers & Co Solicitors

 

 

DECISION AND REASONS

 

1.              The Appellant is a citizen of Nepal who applied for entry clearance as the adult dependent son, of his father, a retired member of the Brigade of Gurkhas. That application was made on 16 September 2015, and it was refused by the Entry Clearance Officer on 14 October 2015. At that date the Appellant was aged about 28½. His father had gained entry clearance for the purposes of settlement in the UK in 2010 and his mother and younger brother had travelled and settled in the UK in 2011.

2.              The Appellant's appeal against the refusal of entry clearance came before Judge Abebrese sitting at Birmingham on 22 February 2017, and the appeal was allowed on Article 8 grounds by decision promulgated on 9 March 2017.

3.              The Respondent applied for permission to appeal to the Upper Tribunal on two grounds and permission was granted on them by First tier Tribunal Judge Chamberlain by way of his decision of 6 September 2017. Those grounds complained that the Judge had misdirected himself in relation to the proper approach to the question of whether "family life" existed at any relevant date between the Appellant and the family members living in the UK, and, to the proportionality balancing exercise. When the appeal was called on for hearing, Mr Jarvis on behalf of the Entry Clearance Officer abandoned the second ground. We need say no more about that. So the matter comes before us. This is the decision of us both.

4.              The appeal has therefore been pursued today on the sole basis that Judge Abebrese's decision fails to make a clear finding upon a key issue, namely whether there was in existence "family life" for the purposes of Article 8 between the Appellant, his parents, and his younger brother at the date that they each left Nepal to settle in the UK, or, latterly at the date that he applied for and was refused entry clearance, or even more latterly, at the date of the hearing.

5.              Whilst this is a relatively brief decision, given the material that was under consideration, we are satisfied that neither the credibility nor the substance of the evidence placed before the judge in the form of a written witness statement from the Appellant made in February 2017 for the purposes of the appeal hearing, and a witness statement from his father supplemented by his oral evidence, was the subject of any material challenge. The Entry Clearance Officer's position as advanced by his representative at the hearing was instead to seek to analyse that evidence by way of argument as to what, in law, were the proper conclusions to be drawn from it, rather than to seek to challenge that evidence as in any way untrue, or deserving of little weight.

6.              It is also clear to us, and indeed this view was not challenged in argument before us, that Judge Abebrese's decision does demonstrate that he did have in mind the relevant jurisprudence; he refers to it in the course of his decision. Thus he refers himself specifically to the guidance of the Court of Appeal to be found in Gurung & Ors [2013] EWCA Civ 8 and also to the guidance of the Upper Tribunal to be found in Ghising (family life - adults - Gurkha policy) Nepal [2012] UKUT 160. Whilst he did not refer to the later decision of the Upper Tribunal in Ghising & Ors (Ghurkhas: historic wrong; weight) [2013] UKUT 567 there is nothing in his decision to suggest that he did not have the relevant principles expressed therein, in mind. The Judge did not of course have the benefit of course of the decision of the Court of Appeal in Rai v Entry Clearance Officer, New Delhi [2017] EWCA Civ 320 because that decision was only promulgated on 28 April 2017. Again, however, there is nothing to be found within his decision to suggest that he did not have the relevant principles in mind. The decision of M Jarvis to abandon the second ground before us was undoubtedly correct, and the proper approach.

7.              The focus before us today has been entirely on the question of whether or not his decision demonstrates that Judge Abebrese made the requisite finding that family life existed at any relevant date, or, if not, whether his findings of primary fact would allow us to go on to make that finding for ourselves. Looking at his decision, we can see that he rehearsed in the course of his findings and his analysis of the evidence the Appellant's position in Nepal as an unemployed man who had completed his education in Nepal, and continued to live in the family home. We can see that in paragraph 24 the judge takes note of the following:

"I do make a finding on the evidence before me that the Appellant who was aged 28 at the time of the application had not and indeed has still not at the date of the hearing formed an independent family life of his own. He is still very much maintained by the sponsor and he relies on them for his maintenance and accommodation. He is single and he has not obtained employment in Nepal. I find the evidence credible that it is difficult in respect of the obtaining of full-time gainful employment in Nepal. The Appellant is now 29 years old, he has always lived at home with his parents as a student until they settled in the UK. His father in 2010 came to this country and his mother followed him in 2011. I find on the facts that he has continued with his studies whilst residing in the family home in Nepal. I do make a finding that the sponsor on the basis of advice provided to him did not make an application for the Appellant to join the rest of the family in the United Kingdom. I find that the decision of the Respondent does acknowledge this to be credible and that previous versions of the policy did indeed prevent the Appellant from joining his parents sooner. It would therefore in my view be unfair and disproportionate to hold the fact of separation against the Appellant and his family and that on the basis of the documentary and oral evidence before me the sponsor has continued to maintain the Appellant financially during the period of separation."

8.              He went on in paragraph 25 to find that the documents placed before him to corroborate the oral evidence as to the sending of money to Nepal for the support of the Appellant to be credible and to support the sponsor's evidence in that respect. These passages follow the Judge's conclusion in paragraph 20 that " Article 8(1) and Article 8(2) are indeed engaged in this instance".

9.              In our judgment it is quite clear when the decision is read as a whole, as the judge is entitled to have it read, that he did indeed find that "family life" for the purposes of Article 8 existed between all the members of the immediate family at the date that the Appellant's father left Nepal in 2010. It is also clear, to us at least, that the judge accepted that that "family life" continued until the point at which the Appellant's mother and younger brother left Nepal in 2011. Again, it is clear to us, that the judge accepted that the only reason that the Appellant did not apply for entry clearance in 2011 along with his mother and younger sibling, was the advice the family had received that he did not qualify for it. Finally, it is clear to us, that the judge accepted that "family life" between these individuals continued thereafter, up to, and including, the date of the hearing. Those being the Judge's findings, in order for the Respondent to succeed, she would need to establish that the perversity test was made out. The grounds do not suggest that it is, and quite properly so.

10.          That being our finding, it is accepted before us by Mr Jarvis that the decision displays no material error of law, and that the decision to allow the appeal on Article 8 grounds should indeed be confirmed.

Notice of decision

 

The Decision of the First Tier Tribunal which was promulgated on 9 March 2017 did not involve the making of an error of law in the decision to allow the appeal on Article 8 grounds, that requires that decision to be set aside and remade. That decision is accordingly confirmed.

 

Direction Regarding Anonymity - Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008

 

Unless and until a Tribunal or court directs otherwise, the Appellant is granted anonymity. No report of these proceedings shall directly or indirectly identify him or any member of his family. This direction applies both to the Appellant and to the Respondent. Failure to comply with this direction could lead to contempt of court proceedings.

 

 

Signed Date

 

Deputy Upper Tribunal Judge J M Holmes

 

 

 

 

To the Respondent

Fee award

 

The fee award made by the First tier Tribunal is confirmed.

 

 

Signed Date 29 November 2017

 

Deputy Upper Tribunal Judge J M Holmes