CT Family Attorney

The Upper Tribunal recently considered the reformulation of policy in relation to the family members of Gurkhas in the case of CT (Gurkhas: policy) Nepal [2011] UKUT 53 (IAC).  The appellant was a Nepalese national who appealed against the First tier Tribunal’s decision to dismiss her appeal.  She appealed to the Upper Tribunal for permission to appeal. This was granted and the case came before the present court.

The appellant arrived in the UK on a visitor’s visa and made an application in October 2007 on the basis that she was a dependant on her father, formally a Ghurkha soldier in the British Army and now present and settled in the UK.  The appellant’s mother also resides in the UK with her father whilst her siblings live overseas (Nepal and Hong Kong).

The appellant maintained that she was always dependant on her father. The appellant initially came to the UK to take part in the ?Ghurkha Justice week’.

The appellant’s application was refused by the Secretary of State for the Home Department (SSHD) for the reasons that she had lived in Nepal with her siblings who resided there and that she did not live outside the UK alone in the most exceptional circumstances and was not mainly financially dependent on relatives settled in the UK. The SSHD’s refusal letter stated that the appellant did not therefore; meet the requirements of the immigration rule 319 with reference to paragraph 317 (HC 395).

The SSHD decided not to exercise discretion in this matter and decided that the application did not allow for a variation of leave to remain under the Immigration Rules. The SSHD also went on to refuse the application on the basis of the European Convention on human rights arguments. The appellant appealed against this decision.

At the First Tier Tribunal, the Immigration Judge (IJ) was asked to consider paragraph 317 (as amended), the Ghurkha Policy and article 8 ECHR. The appellant’s family circumstances had changed by the time of the hearing. The appellant’s mother and siblings had all arrived in the UK with her mother settling here. The IJ dismissed the appeal on the basis of the immigration rules and article 8 having regard to the appellant’s family situation as at the time of her hearing.

The IJ commented that it was not up to him to consider the Policy and provide a reasoning on that issue as the hearing had been adjourned for the respondents to consider it. The respondent had concluded that the appellant did not fall within the ambit of the Ghurkha policy. The appellant argued that the IJ erred in law and permission to appeal was sought. The appellant argued that the respondent had not applied her policy correctly and that as a result, the decision was not in accordance with the law. The appellant also argued that she had a legitimate expectation that she would not be removed from the UK in light of a Parliamentary Statement made in 2009 by the Immigration Minister.

Conclusions of Upper Tribunal

The undertaking given by the Immigration Minister was superseded by the subsequent new guidance. This guidance refers to applications made for settlement outside the UK and not inside like the appellants application. Chapter 15 of the Immigration Directorate Instructions make provisions for the family members of Ghurkhas and states that their applications should be considered in line with the relevant Immigration Rules (so if it’s regarding an application by the spouse then consideration in line with rule 281). Applications by dependants over the age of 18 should be approved where they were previously granted leave to enter or remain as part of the family unit. The SSHD can consider exceptional cases and these are listed in paragraph 13 (five main points). Discretion may be exercised if the applicant fits in to any of these points.

The Upper Tribunal held that the SSHD failed to properly apply the policy guidance and that the IJ should have taken that into account. The appellant’s appeal was allowed on the basis that the SSHD’s decision was not in accordance with the law. The appellant now waits for a lawful decision to be made on her application of October 2007.

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Originally published here.

Attorney Judith Goldberg focuses on divorce law, divorce mediation, child custody & modification, and similar cases. As a long standing member of the CT & NY Bar Association, Attorney Goldberg Can Provide You With Experienced Legal Counsel. Distributed by Tubemogul.