Roshan Ghising v The Secretary of State for the Home Department

1. The Appellant, who is a national of Nepal, has appealed against the decision of the First Tier Tribunal (‘FTT’) (Immigration Judge A.M. Black) which, on 14 September 2011, dismissed an appeal against the refusal of leave to remain as the dependant of a former member of the Brigade of Gurkhas.

2. We heard this appeal on the same day as another appeal because it raised similar issues, and so our legal analysis is the same in both cases.

3. The grounds of appeal were that the FTT failed to give proper consideration to the application of Article 8 ECHR to the circumstances of the Appellant’s case. The Appellant, who is aged 25, lives with his parents in the UK. Since 2007, he has had leave to study in the UK. His parents both have Indefinite Leave to Remain (‘ILR’).

4. Permission to appeal was given by FTT Judge Davey on 29 September 2011.

5. The Respondent did not oppose a finding that the Judge erred in law in her assessment of Article 8.

6. On 8 December 2011, Upper Tribunal Judge Kebede decided, pursuant to rule 34 of the Tribunal Procedure (Upper Tribunal) Rules 2008, that the FTT had erred in law and therefore the decision should be set aside and re-made by the Upper Tribunal. The decision of the Respondent

7. The Appellant applied for ILR on 17 September 2010, as the dependant relative of his father, a person present and settled in the UK.

8. The Respondent refused the application, in a letter dated 29 July 2011, on the following grounds: a) The Appellant was 25 years old, in good health, and had demonstrated that he could live independently from his parents, and support himself. b) The Appellant did not satisfy the requirements of paragraph 317(i)(f) and (iii) of the Immigration Rules as he had not established that he would be living alone outside the UK in the most exceptional compassionate circumstances and that he was financially wholly or mainly dependent on a relative present and settled in the UK. c) Leave may be granted outside the Immigration Rules, in exceptional circumstances, pursuant to Immigration Directorate Instructions, Chapter 15, Section 2A, paragraph 13.2. There were no grounds to exercise this discretion in favour of the Appellant. d) Removal to Nepal would not interfere with the Appellant’s Article 8 rights. He had not established an interference with family life within the meaning of Article 8(1), as there was no dependency going beyond normal emotional ties in his relationship with his parents. Although he had established a private life, any interference could be justified in the circumstances of his case. e) The Appellant had failed to establish grounds for discretionary leave. The decision of the FTT

9. In a decision promulgated on 14 September 2011, Immigration Judge A.M. Black dismissed the Appellant’s appeal on the following grounds: a) The Appellant rightly conceded that he did not fulfil the requirements of paragraph 317 of the Immigration Rules; b) The Appellant had not established an interference with family life within the meaning of Article 8, as his emotional ties were no more than the usual ties which a 25 year old student has with his parents. He had lived apart from them for over 2 years. c) The Appellant had established a private life in the UK which encompassed his relationship with his parents and sisters, as well as his social life and studies in the UK. d) Removal from the UK was proportionate to the aim of immigration control. The Appellant must have appreciated when he came to the UK that he could have no expectation of settlement here. He would be able to maintain his relationship with family and friends from Nepal through visits and modern means of communication. He would probably fulfil the criteria for leave to complete his studies in the UK. e) The applicable policy was the March 2010 version of the IDI, at Annex A and Section 13.2., which gave the Respondent a discretion to grant leave outside the Immigration Rules in ‘exceptional circumstances’. It was for the Respondent to exercise this discretion, and it was not possible to make a finding that his decision in this case was not in accordance with the law. Grounds of appeal

10. The Appellant’s grounds of appeal to the Upper Tribunal were: a) The Judge misapplied the relevant law in concluding that the Appellant did not have a family life with his parents, so as to engage Article 8(1); b) The Judge failed to consider whether the severity of any interference with the Appellant’s family life would be such as to engage Article 8. c) Alternatively, the Judge misapplied the relevant law by overstating the degree of severity required for Article 8 to be engaged. d) In assessing proportionality, the Judge failed to take into account a significant factor, namely, the righting of an historic wrong towards the Gurkhas.

11. In the Upper Tribunal, the Appellant did not pursue the ground of appeal relied upon at the FTT, namely, that the Respondent had failed to apply its discretionary policy lawfully to the Appellant’s case. Findings of fact

12. The Appellant, whose date of birth is 16 July 1986, is now aged 25. He was born in Hong Kong in the British Military Hospital, while his father was serving in the British Army.

13. His father, Mr Lal Bahadur Ghising, is a national of Nepal, who was born on 23 November 1950. He enlisted in the Brigade of Gurkhas on 23 November 1968, serving in The Queen’s Gurkha Engineers. He was posted to Singapore, Hong Kong, the UK, Brunei and Belize.

14. Mr L. Ghising was discharged on 6 February 1992, after 23 years service, on completion of his engagement. His rank on discharge was Warrant Officer Class 1. Mr L. Ghising’s evidence was that he had served Britain with dedication and loyalty. His commanding officer assessed his military conduct as ‘Exemplary’ and described him as ‘extremely competent’ and ‘extremely hardworking, honest and loyal’.

15. Mr L. Ghising’s evidence, which was not challenged by the Respondent, was that he wished to settle in the UK soon after his discharge, but he 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. If he had been permitted to settle in the UK in 1991, he would have been accompanied by his wife, his daughter, and the Appellant, who would have been 6 years old. It was 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 (‘ILR’).

16. From 2004 onwards, the British Government began to revise its stance towards Gurkha veterans. It was only in 2009 that Mr L. Ghising became eligible to apply for entry. He did so, and was granted indefinite leave to enter the UK on 4 August 2009. His wife was granted indefinite leave to enter the UK on 16 September 2009. They arrived in the UK on 25 September 2009.

17. In the meantime, in 2007, the Appellant came to the UK from Nepal to study. He entered the UK on 14 January 2007 and was given leave to enter as a student until 31 December 2010. He has now completed two courses in Business Management at colleges in London. In January 2012, he enrolled on an MBA course at the University of East London which concludes in June 2013. If his parents had not settled in the UK, it is likely that, on completion of his studies, he would have returned to Nepal to live with his parents, as his sister did.

18. The Appellant has always been financially dependant upon his parents. His father pays his tuition fees and supports him.

19. Mr L. Ghising is self-employed, and owns a manpower consultancy business, which is now wholly based in the UK. He no longer has any business interests in Nepal.

20. Since Mr and Mrs Ghising have been settled in the UK, the Appellant has been living with them. Mr and Mrs Ghising now own a house in Abbey Wood, London SE2.

21. We are satisfied on the evidence that the Appellant has a close-knit family relationship with his parents. They value and enjoy each other’s company on a daily basis.

22. The Appellant depends upon them for financial, practical and emotional support and guidance. They depend upon him as their only child still living at home. Mr L. Ghising’s evidence was that it is the custom among Nepalese people for the youngest son to remain living with his parents, even after marriage, to care for them when they become elderly. This evidence was not challenged by the Respondent.

23. Mr L. Ghising would like the Appellant to join him in his business, once he has completed his studies. Mrs Ghising is frail, with serious health problems, and she relies on the Appellant to look after her, and take her to a specialist clinic on a regular basis, as her husband is away at work.

24. The Appellant has one sister, Miss Jarina Ghising. She was born on 4 December 1978 in Nepal. She came to study in the UK and then returned to live in Nepal. She is now married to a British citizen, and she was given ILR in the UK in July 2010. She has two infant children, both of whom are British citizens. Because of her childcare responsibilities, she cannot care for her mother.

25. The majority of the Appellant’s family, on his father’s side, is settled in the UK

26. The Appellant has founded a life here, over the past 5 years, and has friends and a social network. He has passed the required English language test and the Life in the UK test. He has also passed his driving test.

27. If the Appellant had to return to Nepal, his parents could not return with him. His father’s business interests require him to remain in the UK. Furthermore, their daughter and grandchildren are permanently based here, as well as most other family members.

28. The Appellant has only one close relative in Nepal: his 87 year old grandfather who lives in a rural village, where there are no suitable educational or professional opportunities for the Appellant. The Appellant would have to find accommodation on his own in Kathmandu, and build a life there for himself, apart from his nuclear family. Immigration Rules

29. Immigration Rules 276X – 276AC make provision for the children of Gurkha veterans, who are themselves eligible for settlement under Immigration Rules 276E – 276K, to apply for settlement in the UK, provided certain conditions are met: a) At least one parent (or exceptionally a relative) must be present and settled in the UK; b) The child is under the age of 18; c) The child is not leading an independent life, is unmarried and is not a civil partner, and has not formed an independent family unit.

30. Children aged 18 or over are expected to apply for ILR under Immigration Rule 317, which is of general application. The requirements include that they are “living alone outside the United Kingdom in the most exceptional compassionate circumstances and mainly dependent financially on relatives settled in the United Kingdom”.

31. It was common ground that the Appellant could not bring himself within rule 317 because he could not establish “most exceptional compassionate circumstances”. Discretionary policies

32. The current (March 2010) version of the Immigration Directorate’s Instructions (‘IDI’) provides, at Chapter 15, Section 2A, Annex A: “ Dependants Discretion will normally be exercised and settlement granted in line with the main applicant for spouses, civil partners, unmarried and same-sex partners and dependant children under the age of 18. Children over the age of 18 and other dependant relatives will not normally qualify for the exercise of discretion in line with the main applicant and would be expected to qualify for leave to enter or remain in the UK under the relevant provisions of the Immigration Rules, for example under paragraph 317, or under the provisions of Article 8 of the Human Rights Act. For more information on the exceptional circumstances in which discretion may be exercised see Section 13.2”.

33. Section 13.2 provides: “Dependants over the age of 18 Dependants over the age of 18 of foreign and Commonwealth HM Forces members (including Gurkhas) who are not otherwise covered in this guidance would normally need to qualify for settlement in the UK under a specific provision of the Immigration Rules. In exceptional circumstances discretion may be exercised in individual cases where the dependant is over the age of 18. However, settlement applications from dependants over the age of 18 who are the children of serving foreign and Commonwealth HM Forces members (including Gurkhas) who meet the requirements of a parent should normally be approved, provided the dependant has previously been granted limited leave to enter or remain in the UK as part of the family unit and they wish to continue to reside and be educated in the UK.”

34. Prior to March 2010, the discretion to admit over-18 dependants was set out in more detail. The June 2009 version of Section 13.2 stated: “Dependants over the age of 18 In exceptional circumstances discretion may be exercised in individual cases where the dependant is over the age of 18. In assessing whether settlement in the UK is appropriate consideration should be given to the following factors: • one parent or a relative of the applicant is present and settled or being admitted for, or being granted settlement in the UK under the HM Forces rule; • the applicant has previously been granted limited leave as a dependant of a member of HM Forces; • the applicant has been, and wishes to continue, pursuing a full time course of study in the UK; • refusal of the application would mean that the applicant would be living alone outside the UK and is financially dependant on the parent or relative present and settled, or being granted settlement in the UK under the HM Forces rules; • the applicant would find it very difficult to function because of illness or disability without the help or support of their parent or close relative in the UK.”

35. We have also been shown earlier policies: a) Entry Clearance Guidance, Set 12, published on 25 June 2009; and b) Diplomatic Service Procedures – Entry Clearance, updated March 2006.

36. The relevant provision in both policies stated: “It is not the intention to split a family unit solely because a dependant is 18 years of age or over. Applications for settlement from dependants who are 18 years of age or over will be considered and discretion to grant settlement outside the Rules may be exercised in individual cases.... In assessing whether settlement in the UK is appropriate ECOs should consider the following factors: • one parent or a relative of the applicant is present and settled, or being admitted for, or being granted, settlement in the UK under the HM Forces rule; • the applicant has previously been granted limited leave as a dependant of a member of HM Forces; • the applicant has been, and wishes to continue, pursuing a full-time course of studies in the UK; • refusal of the application would mean that the applicant would be living alone outside the UK and is financially dependent on the parent or relative present and settled, or being granted settlement in the UK under the HM Forces rule; • the applicant would find it very difficult to function because of illness or disability without the help and support of their parent or close relative in the UK. If one or more of the factors listed above are present, the ECO may exercise discretion and grant entry clearance for settlement in the UK.”

37. The Court of Appeal considered these policies in UG (Nepal) & ors v Entry Clearance Officer [2012] EWCA Civ 58 . Tomlinson LJ said ([22]): “the opening sentence says no more than that the majority of a dependant is not of itself a bar to entry clearance. The thrust of the policy is not however that dependants over the age of 18 will be admitted. The thrust of the policy is that entry clearance may be granted to dependants over the age of 18 where settlement in the UK is appropriate.” Tomlinson LJ agreed with the submission of the Secretary of State that the policy required a rounded evaluation of the circumstances in each case ([21]). The identified bullet points were “simply a guide to the decision-maker” ([23]); “the approach was not to be a mechanistic one of the “checklist” or “tick box” variety” ([21]).

38. Confusingly, Set 12 continued to be accessible on the UKBA website long after it had been superseded by the June 2009 IDI. A letter from the UKBA to Howe & Co, the Appellant’s solicitors, dated 4 April 2011 explains: “The Set 12 document you refer to, which forms part of the Entry Clearance Guidance (ECG) was last revised and published on 25 June 2009. It is acknowledged that there was a period where the contents of the Set 12 document you have provided contradicted the June 2009 and March 2010 Immigration Directorate Instructions (IDI). The link to this Set 12 published on 25 June 2009 was deactivated on 24 July 2009 and users were directed to the correct guidance. An unfortunate administrative error meant that both an accurate and up to date version of the guidance and the Set 12 which you have provided and which contained outdated and incorrect guidance were simultaneously available. This problem was identified in September 2010 and the incorrect Set 12 document you refer to was no longer accessible publicly from 15 September 2010 onwards.... UKBA provided a link to the correct guidance on its website on 24 July 2009 which was readily available to all applicants, even though the historic version of the document remained available...Given this availability UKBA considers that it is reasonable that any applications submitted after 24 July 2009 should be considered in line with this correct guidance.”

39. In CT (Gurkhas: policy) Nepal [2011] UKUT 53 (IAC) the Upper Tribunal held that, on a proper construction, the policy known as Set 12 only applied to applicants applying from outside the United Kingdom.

40. In our judgment, the policy applicable to the Appellant was the March 2010 IDI. The Appellant applied for indefinite leave to remain on 17 September 2010 and his application was refused on 29 July 2011. Both events post-date the introduction of the March 2010 IDI. The Appellant did not seek to argue before us that the Respondent’s refusal to find ‘exceptional circumstances’ in the Appellant’s case gave rise to a ground of appeal. We agree with the conclusion of the FTT that the Tribunal could not properly find that the Respondent’s exercise of discretion was ‘not in accordance with the law’, pursuant to s.86(3) Nationality, Immigration and Asylum Act 2002 . Article 8 ECHR

41. By virtue of s. 6(1) of the Human Rights Act 1998 , it is unlawful for the Respondent to act in a way which is incompatible with a Convention right.

42. Article 8 provides: “(1) Everyone has the right to respect for his private and family life, his home and his correspondence. (2) There shall be no interference by a public authority with the exercise of this right except such as in accordance with the law and is 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, or for the protection of the rights and freedoms of others.”

43. Our task in this appeal is to decide whether the challenged decision is incompatible with Article 8, based on up-to-date facts. It is not limited to reviewing the lawfulness of the Secretary of State’s assessment of the Appellant’s Article 8 claim ( Huang v Secretary of State for the Home Department [2007] 2 AC 167 , per Lord Bingham at [11], [13]).

44. The principles to be applied are well-established. In EB (Kosovo) v Secretary of State for the Home Department [2009] 1 AC 1159 , at [7] Lord Bingham said: “In R (Razgar) v Secretary of State for the Home Department [2004] 2 AC 389 , para 17, the House summarised ... the questions to be asked by an adjudicator hearing an appeal against removal on article 8 grounds. It said: “In a case where removal is resisted in reliance on article 8, these questions are likely to be: (1) will the proposed removal be an interference by a public authority with the exercise of the applicant’s right to respect for his private or.. family life? (2) If so, will such interference have consequences of such gravity as potentially to engage the operation of article 8? (3) If so, is such interference in accordance with the law? (4) 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, or for the protection of the rights and freedoms and others? (5) If so, is such interference proportionate to the legitimate public end sought to be achieved?” In practice the fourth and fifth questions are usually, and unobjectionably taken together, but as expressed they reflect the approach of the Strasbourg court which is (see Boultif v Switzerland (2001) 33 EHRR 1179 , para 46; Mokrani v France (2003) 40 EHRR 123 , para 27; Sezen v The Netherlands (2006) 43 EHRR 621 , para 41) that: “decisions in this field, must, in so far as they may interfere with a right protected under article 8(1), be shown to be necessary in a democratic society, that is to say, justified by a pressing social need, and, in particular, proportionate to the legitimate aim pursued.”

45. In Razgar Lord Bingham explained, at [20], that the judgment on proportionality: “must always involve the striking of a fair balance between the rights of the individual and the interests of the community which is inherent in the whole of the Convention. The severity and consequences of the interference will call for careful assessment at this stage.”

46. When considering the factors to take into account under Article 8, Lord Bingham said in Huang v The Secretary of State for the Home Department [2007] 2 AC 167 , at [18]: “Human beings are social animals. They depend on others. Their family, or extended family, is the group on which many people most heavily depend, socially, emotionally and often financially. There comes a point at which, for some, prolonged and unavoidable separation from this group seriously inhibits their ability to live full and fulfilling lives. Matters such as the age, health and vulnerability of the applicant, the closeness and previous history of the family, the applicant’s dependence on the financial and emotional support of the family, the prevailing cultural tradition and conditions in the country of origin and many other factors may all be relevant.”

47. Lord Bingham concluded, at [20]: “the ultimate question for the appellate immigration authority is whether the refusal of leave to enter or remain, in circumstances where the life of the family cannot reasonably be expected to be enjoyed elsewhere, taking full account of all considerations weighing in favour of the refusal, prejudices the family life of the applicant in a manner sufficiently serious to amount to a breach of the fundamental right protected by article 8.”