(Immigration and Asylum Chamber) Appeal Number: OA/23520/2010
THE IMMIGRATION ACTS
Heard at North Shields
On 19th June, 2013
On 5th July 2013
Upper Tribunal Judge Chalkley
(No anonymity order made)
Entry Clearance Officer - New Delhi
For the Appellant: Mr A Manson, Home Office Presenting Officer
For the Respondent: Mr A Jaffr, Counsel
DETERMINATION AND REASONS
1. The appellant is a citizen of Nepal, who was born on 5th September, 1998. He made application for entry clearance to the United Kingdom for settlement under paragraph 317 of Statement of Changes in Immigration Rules, HC 395, as amended (the “Immigration Rules”). His application was refused by the Entry Clearance Officer on 8th July, 2010, and he appealed that decision to the First-tier Tribunal, Immigration and Asylum Chamber. The appeal was heard by First-tier Tribunal Judge Beg, who dismissed the appellant's appeal.
Error of law
2. On 23rd April, 2013, Upper Tribunal Judges Hanson and Coker found that the First-tier Tribunal made an error of law in its determination. A copy of the determination of Upper Tribunal Judges Hanson and Coker is set out and forms Appendix A to this determination.
The hearing before me
3. I heard oral evidence first from the appellant's mother, Phulmaya Limbu, who confirmed that she is the mother of the appellant and lives with her husband in Catterick. She gave her date of birth as 30th November 1950, and told me that she has four daughters and two sons. She was not sure when she came to the United Kingdom. The appellant lives in the family home in Nepal alone. He was refused a settlement visa because he was over the age of 18 years. At the time he was living with the witness’s father-in-law (the appellant's grandfather) who unfortunately died in 2010. The witness told me that she has sisters, but she has had no contact with them for many years. She told me she had no brothers. Her husband has one brother but he has had no contact with him since he was young.
4. In answer to further questions put to him by his Counsel, the appellant's mother told me that the appellant was a student currently studying at Dharan College. She said that she sends him money. Sometimes she sends him money ever two weeks sometimes every four weeks, but sometimes it can be every eight weeks. Sometimes she sends £100 and sometimes she sends £200. Next time she sends him money it will be £200 and she will send that next month. Last month she sent him £50.
5. The witness explained that she returned to Nepal sometime after 2009. She visited in September and thought that this was last year. She returned to the United Kingdom on 2nd April this year. She was there for nine or ten months. She went there because her son is living on his own. She was shown a document at page 49 in the appellant's bundle and confirmed that it was a statement from a bank account in Nepal. When she visits Nepal she takes money out of the account to give to her son.
6. The witness told me that she had come to the hearing today, because she wanted her son to come to the United Kingdom, because she and her husband want the family to be together. Before she came to the United Kingdom in 2008, she had never lived apart from her son. She is very sad because things are not so good back in Nepal and the family want to be together. He wants to come to the United Kingdom. He is the only member of the family who is not allowed to come to the United Kingdom.
7. Cross-examined by the Presenting Officer, the witness was asked what she thought the appellant meant when he said that he did not know why his father had been given indefinite leave to remain. The appellant said that his father had never explained the matter and he never took any interest. The witness explained that she thought that his reply meant the family did not have the information.
8. Her father-in-law died of old age. She did not return for the funeral because she was there at the time. It happened during her visit. This was during her visit in May in 2009. She confirmed that she never attended a hearing before.
9. She agreed that she had been in Nepal between 24th May 2009 and 27th November 2009. She said that she had been ill during the last hearing and her husband and other family members attended. The grandfather died on 18th February, 2010.
10. Referring to the death certificate appearing at page 35 of the bundle in the name of Mr Krishne Malung Hang Labung alias Krishne Limbu she confirmed that this related to her late father-in-law. She was asked who Mr Dev Bahadur Limbu, who is referred to as being the informant in the death certificate, was. She said that it was her brother-in-law. She then changed her evidence and told me that he was someone with the same name as her brother-in-law. He lived with her father in law and looked after him and stayed with him. He was an orphan who had stayed with her father in law to look after him.
11. The witness was then again referred to the interview conducted with the appellant. The appellant was asked whether he had any other family living in Nepal including grandparents, uncles, aunts and cousins, and the appellant said, “Grandfather lives in the village and uncle and his in village with his family”. The appellant said that the person the appellant was referring to as being the uncle was a family who rented the family house and he and his wife were called “uncle and auntie”. She told me it was common in Nepal for people to be referred to as uncle or auntie. She told me that this was not the same person who registered the death. She and her husband owned two houses, one in the village and one in Dharan. The grandfather lived in the house in the village but when he was ill he went to the house in Dharan and died there.
12. She could not remember when the appellant finished studying at school, but it would have been when he was 18 or 19, she said. It was suggested to her by the Presenting Officer that it was when he was 16 and she said that it might have been.
13. The witness explained that her father in law’s death certificate was not provided for the first hearing but she did not know the reason why.
14. Re-examined on behalf of the appellant, the witness confirmed that according to her passport she returned to the United Kingdom in November 2009, but she could not remember when she returned to Nepal.
15. I then heard evidence from the appellant's father, Jangbir Limbu, who confirmed his address and date of birth and confirmed that the appellant was his son. He told me that he joined the British Army on 11th October, 1966 and was discharged on 1st January but he could not now remember the exact year. He was a member of the Brigade of Ghurkhas.
16. He agreed that he had been given leave to remain in the United Kingdom in 2006. He applied for his wife and two sons later because he wanted his sons to finish their studies in Nepal. He also needed to work and save some money before calling them to the United Kingdom. If he could have settled immediately following his discharge from the army then he would have moved the family to the United Kingdom at that time and would have stayed here. The witness said that he worked for Sodex as a cleaner. He works full-time, for six and a half hours a day and earns approximately £843 net.
17. His son in the United Kingdom is a student. He works part-time and is aged 22. His daughter in the United Kingdom is 19.
18. If his son, the appellant, enters the United Kingdom the witness will sell a home in Nepal and buy one in the United Kingdom. He proposes to sell the house that his son lives in.
19. The witness confirmed that he had sent money to his son in Nepal. He sends roughly £200 per month and it is this that his son lives on. He has no other income.
20. Cross-examined the witness explained that his other house in Nepal is rented out. The rent is actually paid direct to the appellant. He collects it each month. Very roughly it is equivalent to £17 sterling per month.
21. The witness confirmed that he was present at the first hearing but he was not aware that he needed to provide his father’s death certificate. He was referred to his bank statement of 16th June, 2009 and confirmed that he is in receipt of working tax credit. The payment of £4,413 was the first payment of working tax credit that he receives. He receives approximately £228 per month.
22. The appellant is currently studying. He has not applied for any jobs in Nepal and has not applied for any jobs in the United Kingdom.
23. In answer to questions put by me, the witness confirmed that his brother is Dev Limbu. I asked him who Dev Bahadur Limbu was, and the witness told me that he was his brother.
24. I asked him if he was the same man who had registered his father’s death and he told me that the man who registered his father’s death was a man who was treated by the appellant's father as a son and who looked after his father. He had taken the same names as the appellant's brother. He now lives somewhere else. He moved away after the witness’s father died. The witness told me he had no relatives in Nepal.
25. In answer to questions put to him by his Counsel, the witness told me that he did not know what had happened to his brother. He moved to India and he and his brother lost contact with each other. In his submissions the Presenting Officer relied on the reasons for refusal. He submitted that it was necessary for the appellant to prove that his parents were in the United Kingdom and that he is living alone outside the United Kingdom and is dependent on them. This appeal raised issues of credibility. There is the question of the existence of the grandfather and now, it seems the existence of an uncle.
26. The appellant's mother claims that she was present at the death of the grandfather but there is nothing in her statement or in the copy of her passport to show that she was actually in Nepal at the time her father in law died. The grandfather’s death certificate was not before the First-tier Tribunal Judge. As to Article 8, he asked me to note that there had been a delay in making the application. The appellant was apparently employed at the time of the application. For the respondent Counsel suggested that there was family life and the decision of the Entry Clearance Officer is disproportionate. He asked me to consider paragraph 46 of Gurung. He referred me to paragraphs 23, 37, 41, 43 and 45 of Pun, Pun and Gurung (Ghurkhas policy - Article 8) Nepal  00377.
27. He suggested that the appellant's family members have been consistent about the transfer of money and although it may appear to be small, it has to be borne in mind that he lives in the family issue and therefore only needs to pay for food and for his study. The appellant's father was granted leave in 2006. By the time he was granted leave the appellant was already 18 years of age. He invited me to allow the appeal.
28. Both representatives appeared to be under the impression that the appellant still had a current paragraph 317 immigration appeal. It was clear to me, however, having read Appendix A, that it was the decision of the First-tier Tribunal in respect of human rights grounds, that was set aside, not the decision under the Immigration Rules. The only appeal before me, therefore, is the appellant's Article 8 human rights appeal.
29. Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms provides for respect for a person’s private and family life, their home and correspondence. The appellant has to show that the subject matter of the Article 8 subsists and that the decision of the respondent will interfere with it. If he does so, it is for the respondent to show that the decision is in accordance with the law, that it is one of the legitimate purposes set out in Article 8(2) in this case for the economic well-being of the country, for the prevention of disorder or crime and for the protection of the rights and freedoms of others, and that it is necessary in a democratic society, which means that it must be proportionate.
36. At paragraph 17 of Razgar v Secretary of State for the Home Department  UKHL 27, Lord Bingham of Cornhill said this:
“17. In considering whether a challenge to the Secretary of State's decision to remove a person must clearly fail, the reviewing court must, as it seems to me, consider how an appeal would be likely to fare before an adjudicator, as the tribunal responsible for deciding the appeal if there were an appeal. This means that the reviewing court must ask itself essentially the questions which would have to be answered by an adjudicator. 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 (as the case may be) 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 of others?
(5) If so, is such interference proportionate to the legitimate public end sought to be achieved?”
29. At the commencement of the hearing Mr Manson quite properly conceded that, at the time of the application, there clearly was Article 8 family life between the appellant and his family members in the United Kingdom. The application was decided on 8th July 2010, when the appellant was already 19 years of age. It appears that at the time of the application, the appellant’s mother was living with him, but she was not living with him permanently; she had already settled in the United Kingdom. The only thing that has changed since the date of the application is that the appellant's grandfather has, apparently, died. He is clearly still being supported financially by his parents and his mother has made trips to Nepal to be with him and to see him. In the context of this appeal I am prepared to accept the family is very close and that family life exists between them.
30. I am prepared to accept, on a balance of probabilities, that the appellant's grandfather has died and that the informant who registered his death was an orphan who had been befriended by the appellant’s grandfather and who had looked the appellant's grandfather in his later life. I am also prepared to accept that the appellant's uncle left to go to India after having failed to join his brother in the British Army and that the appellant's uncle and the appellant's father have not had any contact with each other for many years. I am prepared to accept that the appellant's mother has no family members in Nepal that she is in contact with. Given the close nature of the family relationship I believe that the appellant, notwithstanding his age, almost totally dependent upon his parents not only for his finances and accommodation but for his welfare and support generally.
31. Having found that family life exists between the appellant and his family members I now have to consider the other questions posed by Lord Bingham.
“1. Will the proposed removal be an interference by a public authority with the exercise of the appellant’s right to respect for his private or (as the case may be) 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 an 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 of others?
5. If so, is such interference proportionate to the legitimate end sought to be achieved.”
32. I believe that such interference does have consequences of such gravity as potentially to engage the operation of Article 8; the threshold for which is not especially high (see paragraph 28 of the judgement of Sedley LJ in AG (Eritrea) v Secretary of State for the Home Department  EWCA Civ 801). The interference is in accordance with the law and is necessary in a democratic society for the economic well-being of the country for the prevention of disorder or crime and for the protection of the rights and freedoms of others; the question is whether or not interference is proportionate.
33. At the time the appellant's father was granted leave to remain, the appellant was 18 years of age. The appellant's father had, of course, retired from the Ghurkha regiment several years earlier and he told me, and I accept, that had he been allowed to settle in the United Kingdom with his family on retirement then he would have done so.
34. The historic injustice done to former members of the Ghurkha regiment is of course only one of the factors to be taken into account when considering the need to maintain a firm and fair immigration policy. Nonetheless I do take it into account in this appeal. I bear in mind also that the appellant is living in Nepal on his own and that he is a student. If he comes to the United Kingdom I have no doubt at all that he will wish to continue his studies. His younger brother and sister are in the United Kingdom and he is the only member of the immediate family remaining in Nepal.
35. I have concluded that in the particular circumstances of this appeal, the respondent's decision is disproportionate.
36. I allow the appellant's Article 8 appeal.
Upper Tribunal Judge Chalkley
APPENDIX A referred to
(Immigration and Asylum Chamber) Appeal Number: OA/23520/2010
THE IMMIGRATION ACTS
Heard at North Shields
On 23rd April 2013
UPPER TRIBUNAL JUDGE HANSON
UPPER TRIBUNAL JUDGE COKER
ENTRY CLEARANCE OFFICER -New Delhi
For the Appellant: Mr A Jafar, counsel, instructed by Ghurkha International Ltd
For the Respondent: Mr M Johnson, Senior Home Office Presenting Officer
ERROR OF LAW AND DIRECTIONS
1. The appellant appeals a decision of First tier Tribunal Judge Beg dated 29th July 2011 who dismissed an appeal by him under the Immigration Rules and on human rights grounds against a decision made on 13th August 2010 to refuse to grant him entry clearance as the adult dependant of his father. An extension of time was granted and permission to appeal was granted on 29th February 2012.
2. The appellant, a citizen of Nepal date of birth 15 September 1999, applied for entry clearance on 12th August 2008 to join his father, a former Ghurkha soldier who had been granted indefinite leave to remain in the UK in 2006. He submitted an application at the same time as his mother and two younger siblings. His mother was granted indefinite leave to enter the UK on 1st April 2008 as was his younger brother. His younger sister was granted entry clearance valid from 3rd December 2009. His mother and younger brother travelled to the UK, utilising the entry clearance for the first time on 23rd November 2008. His younger sister travelled to the UK utilising her visa on 2nd April 2010. The appellant’s application was refused. He renewed the application on 1st July 2009 and it was again refused by decision dated 8th July 2010, following a telephone interview with the ECO on 29th June 2010, but which appears not to have been served until 13th August 2010. The decision was reviewed by the Entry Clearance Manager on 30th November 2011.
3. The appellant’s mother, according to the copy endorsement in her passport, returned to Nepal on 24th May 2009 where she remained until coming back to the UK on 23rd November 2009 where she has remained.
4. The appellant, who was and is a student, lived with his mother and sibling(s) in the family home until they left for the UK. He remained living there. He has not formed an independent family unit.
5. Judge Beg, after hearing oral evidence and considering the documentary evidence before her found:
a. the appellant did not meet the criteria in the Immigration Rules, in particular that he was living alone outside the UK in the most exceptional compassionate circumstances and mainly dependant financially on relatives in the UK ;
b. The appellant’s father had been sending money to the appellant in 2009 but that he had not been sending money on a regular basis .
c. The appellant’s father continues to send him funds from the UK .
d. The appellant has other relatives in Nepal .
e. The appellant lives in a house owned by his father and there is land .
f. The appellant is a student; he is not suffering from any illness or disability .
g. The relationship between the appellant and his father and other relatives in the UK does not constitute family life within the purpose and meaning of Article 8 .
h. The relationship between the appellant and his relatives in the UK is an element of his private life; he can continue to maintain contact with them by telephone and they can visit him .
i. He has a comfortable standard of living in Nepal .
j. The refusal of entry clearance is not a disproportionate interference with his private life .
Error of law
6. The grounds of appeal take issue with the failure of the First-tier Tribunal judge to accept and acknowledge that the relationship between the appellant and his mother and father amounts to family life within the meaning and purpose of Article 8. Mr Jafar drew our particular attention to Ghising  UKUT 160 (IAC) and Gurung  EWCA Civ 8. He referred to what he submitted to be a failure to have proper regard to the factual situation before her, that some of the matters that she considered to be inconsistencies were irrelevant to the decision whether there was family life and that there were significant unresolved contradictions in her findings.
7. Mr Johnson submitted that the findings were clear and unambiguous, that there was no perversity in the judge’s decision which was based on sustainable findings.
8. There appear to be some errors of interpretation in the evidence as related by Judge Beg:
a. She refers to the appellant stating in a telephone interview that his grandfather was living in the village. Whilst it is correct that he said this in a telephone interview, it was during an interview conducted in connection with the earlier application for entry clearance in 2009 and the grandfather died in February 2010. Judge Beg states that there was no evidence that the grandfather had died whereas there was a copy of the death certificate in the papers before her and she drew attention to these matters as a discrepancy, which in fact they were not.
b. The appellant’s mother was living in Nepal with the appellant until 23rd November 2008 and then again from 24th May 2009 until 23rd November 2009. This does not appear to have formed part of the consideration by the judge who appears to have considered the appeal on the basis that the mother had only returned for a visit to Nepal - see .
c. There are 6 money transfers between the date of the appellant’s mother returning to the UK in November 2009 and the date of decision. Since the date of decision there were other money transfers and evidence of withdrawals from the father’s Nepalese bank account. The judge disregarded these because they were post decision evidence and, although referring to case law authority, may have misinterpreted that authority which of course enables post decision evidence to be considered where it appertains to the matter in issue. In this appeal, the funding of the appellant is in issue and it would have been appropriate for the evidence of post decision funds provision to have been considered.
d. The judge does not appear to have factored into her consideration the fact that the mother was living with the appellant until November 2009 and this may well have influenced how and to whom money was sent by the father.
e. The judge appears to have proceeded on the basis that the appellant’s grandfather was in Nepal whereas he had died before the decision.
f. In reaching her decision that there was no family life within the meaning and purpose of Article 8 the judge proceeded on the basis that the mother came to the UK in 2008 and only returned to Nepal once for a visit, whereas she actually returned for some 6 months. She has also not considered the fact that by that time the two younger siblings were in the UK pursuing education and also required her care, thus being a split family. Whilst accepting that funds were sent to the appellant she has not factored into her decision that the appellant is a student and fully financially dependant upon his father given studies, his living arrangements and lack of employment.
g. The judge fails to consider that separation does not necessarily mean that family life ceases to exist and that it is the circumstances of that separation that have to be considered.
h. In her assessment of whether family life exists for the purpose and meaning of Article 8 the judge refers to Kugathas  EWCA Civ 31. Although this is correct, the nuances of such an assessment were further explored in Ghising and Gurung to which she has not referred. She made no reasoned reference or finding with regard to the emotional ties and links the appellant may or may not have with his parents.
9. We are satisfied that there is a contradiction in the judge’s findings as to the financial dependency of the appellant. We are satisfied that this contradiction renders the finding as to dependency unsafe, based as it is on a lack of finding as to what other source of finance the appellant may have had. Whilst financial dependency does not of itself mean that family life is engaged for the purposes of Article 8, it is a significant factor which has infected the overall decision of the judge to find that the relationship between the appellant and his family only impacts on his private life. This is further confirmed by the seeming lack of awareness of the judge that the appellant’s grandfather had died and that his mother remained in Nepal for such a lengthy period after she had been granted entry clearance and the lack of consideration as to the emotional context of the familial relationship.
10. Taking all of these matters into account we are satisfied that the lack of full awareness of the factual situation of the appellant and the contradictory findings amount to an error of law in the findings of the judge that the appellant did not have family life such as to engage Article 8. We are satisfied that the error of law is such that the decision on human rights grounds is set aside to be remade.
The making of the decision of the First-tier Tribunal did involve the making of an error on a point of law.
We set aside the decision on human rights grounds to be remade
Date 24th April 2013 Judge of the Upper Tribunal Coker