ON APPEAL FROM THE UPPER TRIBUNAL
(IMMIGRATION AND ASYLUM CHAMBER)
DEPUTY UPPER TRIBUNAL JUDGE LEVER
Strand, London, WC2A 2LL
B e f o r e :
Lord Justice Lindblom
Lord Justice Henderson
| Jitendra Rai
|- and -
Entry Clearance Officer, New Delhi
Ms Carine Patry (instructed by the Government Legal Department) for the Respondent
Hearing date: 23 March 2017
FOR HANDING DOWN (SUBJECT TO EDITORIAL CORRECTIONS)
Crown Copyright ©
Lord Justice Lindblom:
The issues in the appeal
The Upper Tribunal's decision
"19. The Appellant's father namely the Gurkha soldier served in the British Army for a period of about fifteen years including boy service from when he was 15 years of age until the age of 30. He was discharged at that age from the army in 1971. That is a substantial period of time ago.
20. The Gurkha father and his wife remained in Nepal from 1971 until their settlement in the UK in 2010. The decision to settle in the UK was not compulsory but a decision voluntarily undertaken by the Gurkha father and his wife and a decision taken in light of knowledge of their own personal and family circumstances which clearly they would know rather better than either myself or any other decision maker. At the time of his discharge from the army in 1971 it would seem that the father had two children born in 1969 and 1971 namely Mrs Prem Rai and Mr Sukraj Rai. Those adult children live in Nepal and Malaysia respectively. Thereafter the father and mother had four further children with this Appellant being the youngest born on 1st January 1986. Of those four children the eldest born in 1975 lives in Malaysia, the second born in 1979 lives in India, the third born in 1982 lives in Dharan in Nepal and the Appellant born in 1986 lives at the family home also in Nepal. On the basis of the father's evidence all those children are either working or married with the exception of the Appellant. He lives in the family home where the other adult children were born and brought up together with the father and mother.
21. I accept the evidence essentially unchallenged that he is unemployed and has a financial dependence on his father and mother in the UK. There was some reference to the Nepalese culture of the youngest son expected to look after the parents. I do not know whether that is genuinely a societal norm or how strictly such is applied in this day and age even if it exists. If it is a societal norm then it is within the context of Nepal in that if the parents had remained living in Nepal it might have been expected for him to look after them. They are not living in Nepal having made the choice to come to the UK and therefore such concept even if genuine has little relevance. It is also said within the father's witness statement that the youngest daughter, Chandra, born in 1982 is also dependent and also lives in Nepal although involved in study. There is no application on her behalf.
22. There is no evidence presented as to why the Appellant alone of the six children appears to have remained both within the family home and without employment. As I understand the evidence all six children had been brought up in that family home and as years have passed each in different ways have left the family home and have relocated themselves primarily in that area of Asia. The Appellant who is 29 years of age on the face of it would appear to have had a similar if not identical start and upbringing as his other siblings but does not appear to have made the transition that the others have made.
23. The movement of the father and mother to the UK as I have indicated above was as recent as 2010 and at a time when the father was in his mid-70's. It was also a move taken at a time when they were clearly aware of the circumstances of their youngest son in terms of his lack of employment and the fact that he would be left on the face of it alone in the family home. That did not deter them from settling in the UK despite having lived for 45 years in Nepal and making the move at a relatively late stage in their lives. It is not unreasonable to presume that in terms of the welfare of their son they would not have made the move if they had any real concerns. It could not be said that settlement of their son in the UK would automatically follow nor that in any event there would not be a delay in that occurring. The Appellant is 28 years old and there is no evidence indicating any medical difficulties or concerns. Whilst he has a reliance upon his parents for income that does not place him in any particular unusual category either within this country or internationally. The concept of emotional dependence beyond the normal that can be assumed between parents and adult children is not easy to quantify. However as I have indicated above the willingness of the parents to leave when set against all the factors referred to above is some indication that they viewed their son to be able to exist independently, emotionally, physically or otherwise so long as he was provided with money unless or until he obtained employment or gained financial independence through some other means.
24. This is not a case where at the time the father retired from the army the Appellant was a dependent child and therefore would have been entitled to settle in the UK with his parents but for that historical position. It is also not a case where the Appellant's remaining siblings adult or otherwise have settled in the UK and his exclusion would therefore place him outside of the extended family. It is also not a case where the Appellant in terms of family is alone in Nepal given that he has two sisters one of whom is married with her own family.
25. Finally it is not a case where the Appellant has any evidenced difficulties, mental or physical, that would indicate a need for him to be with his parents.
26. In terms of looking at the separation and the [effect] upon the parents I have not found any indication on balance of a dependency beyond the normal family ties and the financial dependency. In terms of assessing any emotional impact of separation on the parents such is a difficult task but again their voluntary leaving of Nepal and leaving the Appellant to some extent assists in putting that matter into perspective."
"27. I have considered firstly whether the collective position of Gurkha adult children is in itself with nothing more a sufficiently compelling or exceptional circumstance for consideration outside of the Rules. I do not find that what may be described as a class case is an appropriate method of approaching that question. In my view to comply with Strasbourg jurisprudence it is necessary for a decision maker to look at the individual and specific facts of the case before him and the question of compelling or exceptional circumstances must relate to the facts of that specific case."
"30. Whilst not necessarily an easy decision to make for the reasons provided above I do not find there are exceptional circumstances in the Appellant's case such that he should be allowed entry clearance outside of the Immigration Rules under the terms of Article 8 of the ECHR."
Did the Upper Tribunal judge misdirect himself in considering whether article 8 was engaged?
"61. Recently, the [European Court of Human Rights] has reviewed the case law, in [AA v United Kingdom  Imm. A.R.1], finding that a significant factor will be whether or not the adult child has founded a family of his own. If he is still single and living with his parents, he is likely to enjoy family life with them. …".
The Upper Tribunal set out the relevant passage in the court's judgment in AA v United Kingdom (in paragraphs 46 to 49), which ended with this (in paragraph 49):
"49. An examination of the Court's case-law would tend to suggest that the applicant, a young adult of 24 years old, who resides with his mother and has not yet founded a family of his own, can be regarded as having "family life"."
"24. I do not think that the judgments to which I have referred lead to any difficulty in determining the correct approach to Article 8 in cases involving adult children. In the case of adults, in the context of immigration control, there is no legal or factual presumption as to the existence or absence of family life for the purposes of Article 8. I point out that the approach of the European Commission for Human Rights cited approvingly in Kugathas did not include any requirement of exceptionality. It all depends on the facts. The love and affection between an adult and his parents or siblings will not of itself justify a finding of a family life. There has to be something more. A young adult living with his parents or siblings will normally have a family life to be respected under Article 8. A child enjoying a family life with his parents does not suddenly cease to have a family life at midnight as he turns 18 years of age. On the other hand, a young adult living independently of his parents may well not have a family life for the purposes of Article 8."
Did the Upper Tribunal judge undertake a flawed proportionality assessment?
"… [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."
Section 117A and B of the Nationality, Immigration and Asylum Act 2002
Lord Justice Henderson
Lord Justice Beatson