(Immigration and Asylum Chamber) Appeal Number: HU/02021/2016
THE IMMIGRATION ACTS
Heard at Field House
Decision & Reasons Promulgated
On 20 April 2018
On 04 May 2018
DEPUTY UPPER TRIBUNAL JUDGE ESHUN
Mr Padam Bahadur Ale
(ANONYMITY DIRECTION not made)
For the Appellant: Mr S Jaisri, Counsel, instructed by Sam Solicitors
For the Respondent: Mr N Bramble, Home Office Presenting Officer
DECISION ON ERROR OF LAW
1. The appellant has been granted permission to appeal the decision of First-tier Tribunal Judge Oxlade dismissing his appeal against the decision of the Entry Clearance Officer to refuse his application for entry clearance to the UK as the adult son of his mother, Dhunisara Ale, the widow of an ex-Gurkha, Sabbahadur Ale, who died in Nepal on 29 October 2005.
2. The late Sabbahadur Ale was a member of the British Armed Forces who served in the British Army. According to the sponsor, namely Mrs Dhunisara Ale, her husband returned from the British Army to Nepal in 1971. Had he had the chance to come to the UK, he would have done so. The appellant was born on 9 July 1990 in Nepal.
3. On 1 December 2015 the appellant made an application for entry clearance to the UK to join his mother, the sponsor. The sponsor was granted settlement in the UK under Chapter 15, Section 2A of Immigration Directorate Instructions published in May 2009 and entered the UK on 4 June 2014.
4. The ECO noted that there were no discretionary policy instructions to ECOs to deal with the children of ex-Gurkha widows, only the children of ex-Gurkhas. Accordingly, the ECO applied Chapter 15, Section 2A 13.2, which is the Secretary of State's policy for dependants over the age of 18 of Foreign and Commonwealth.
5. The appellant's appeal before the judge was limited to Article 8 ECHR family life.
6. Mr Jaisri argued that the judge erred in her approach to this case. She dealt with the issue in respect of the time the appellant spent in Qatar and not whether Article 8 family life was sustainable at the time of the sponsor's departure in 2014.
7. He submitted that the judge's decision at paragraph 31 was flawed. The appellant was seeking to join a Gurkha widow. Mr Jaisri said that Annex K was not applicable only to Gurkhas and their children. He submitted that the decision in Limbu  EWHC 2261 (Admin) deals with the family as a whole. It deals with the totality of the injustice to the family as a whole. He submitted that the appellant's mother entered the UK as a Gurkha widow and therefore the judge had to consider if the appellant was sufficiently prejudiced by the historic injustice. However, at paragraph 31 the judge took the view that the appellant sought to stretch the category of those who may benefit from the concessions, to include dependants of dependants. The appellant had said this would cure a historic injustice, but the judge held that inevitably there will be a limitation on who can be included. In the circumstances the judge was not satisfied that there was a historic injustice. Mr Jaisri said this approach was erroneous.
8. Mr Bramble conceded that the judge's approach to the historic injustice issue at paragraph 31 was wrong. However, he submitted that whether the error is material will depend on the judge's approach to family life and if that approach was incorrect.
9. Mr Bramble submitted that the judge looked at the credibility of the sponsor. She did not believe that the sponsor gave an accurate account of the period the appellant spent in Qatar. The judge took the view that the appellant was getting on with his life as an independent person. The judge was entitled to take this into account.
10. Mr Jaisri in response agreed that the judge's findings on the period the appellant spent in Qatar were adverse but submitted that the judge's finding at paragraph 27 that the mystery surrounding the appellant's trip to Qatar had the hallmarks of a separation and the appellant getting on with life without the sponsor was not a conclusion that should lead to the dismissal of this appeal. The judge had to consider what family life existed when the sponsor left in 2014 and weighing up that evidence with other evidence and coming to a conclusion as to whether that family life would have continued after the sponsor's entry into the United Kingdom. He submitted that the balancing exercise in respect of the Article 8 family life was incomplete and incompatible with the decision in Rai.
11. I find that the judge erred in law in finding that family life in this case was not engaged because the appellant himself was dependent on the dependant. The question of historic injustice was not just limited to the ex-Gurkha and his dependants. It applied to all members of the family, including the widow of the Gurkha. To that extent I find that the judge's decision at paragraph 31 disclosed an error of law.
12. I find that the judge also erred in her consideration of family life. The judge approached this issue by looking at the period in 2011 when it was said the appellant worked in Qatar for about eight to nine months. There was nothing preventing the judge from taking this evidence into account when conducting a balancing exercise in respect of Article 8. The judge had to consider whether there was family life between the appellant and the sponsor prior to the sponsor's departure to the UK in 2014 and whether that family life has continued since her arrival in the United Kingdom. Indeed, in Jitendra Rai v Entry Clearance Officer, New Delhi  EWCA Civ 320 Lord Justice Lindblom held at paragraph 39:
"But that, in my view, was not to confront the real issue under Article 8(1) in this case, which was whether, as a matter of fact, the appellant had demonstrated that he had a family life with his parents, which had existed at the time of their departure to settle in the United Kingdom and had endured beyond it, notwithstanding their having left Nepal when they did."
13. It is obvious from the decision that the judge failed to consider this critical question. Her failure to look at this question led to an incomplete balancing exercise by the judge.
14. Accordingly, the judge's decision cannot stand. It is set aside in order for it to be remade.
15. The appellant's appeal is remitted to be heard by a First-tier Tribunal Judge sitting at Hatton Cross other than First-tier Tribunal Judge Oxlade.
Notice of Decision
The appeal is remitted to Hatton Cross for re-hearing.
No anonymity direction is made.
Signed Date: 1 May 2018
Deputy Upper Tribunal Judge Eshun