Rai v Entry Clearance Officer, New Delhi

Did the Upper Tribunal (Immigration and Asylum Chamber) err in its approach to the right to respect for family life under article 8 of the European Convention on Human Rights when redetermining the appeal of a citizen of Nepal who, as the adult son of a former Gurkha soldier, had been refused leave to enter the United Kingdom? That is the central question in this appeal. It falls to be considered on principles of law that are well established and familiar.

The appellant, Jitendra Rai, appeals against the determination of the Upper Tribunal (Deputy Upper Tribunal Judge Lever), promulgated on 5 September 2014, dismissing his appeal against the decision of the respondent, the Entry Clearance Officer, New Delhi, on 3 January 2013, to refuse his application for leave to enter. The appellant’s appeal against that decision had succeeded before the First-tier Tribunal (First-tier Tribunal Judge Majid) on 28 March 2014. The First-tier Tribunal’s decision was set aside by Deputy Upper Tribunal Judge Lever on 30 June 2014. He heard the appellant’s appeal afresh on 7 August 2014. Permission to appeal against his decision dismissing the appeal was granted by Bean L.J. on 26 October 2015.

There were originally three grounds of appeal. All three related to the Upper Tribunal’s consideration of the appellant’s right to respect for his family life under article 8 of the Convention. The first ground asserted that the Upper Tribunal unfairly deprived the appellant of the opportunity to respond to a point not raised in the respondent’s appeal, and on which permission to appeal had not been granted – namely the First-tier Tribunal’s finding that there was family life. That ground is no longer pursued, and I need say no more about it. In the second ground it is argued that the Upper Tribunal went wrong in its approach to article 8(1), in two respects: first, in failing to take into account relevant evidence about the appellant’s family life, and second, in failing to direct itself properly on the law relating to family life, and in particular “family life between adults”. The third ground contends that the Upper Tribunal failed to follow relevant authority on proportionality – including the decision of this court in R. (on the application of Gurung and others) v Secretary of State for the Home Department [2013] 1 W.L.R. 2546, and the decisions of the Upper Tribunal in Ghising and others (Gurkhas/BOCs – historic wrong – weight) [2013] UKUT 567 (IAC) and Ghising (family life – adults – Gurkha policy) [2012] UKUT 160 (IAC).

Those two remaining grounds were developed in the skeleton argument of the appellant’s counsel, Mr Raphael Jesurum, for the hearing in this court, and developed still further in the course of oral argument before us. Two main issues emerged. First, did the Upper Tribunal judge misdirect himself in considering whether article 8 was engaged in the particular circumstances of this case, and did he give clear and adequate reasons for the conclusion he reached on that question? And second, if he concluded that article 8 was engaged, was his approach to the proportionality assessment flawed?

The essential facts are not in dispute.

The appellant was born in Nepal on 1 January 1986. He is the youngest of his parents’ six children. His father, Birkha Bahadur Rai, was born in Nepal on 1 January 1941, enlisted in 7 Gurkha Rifles as a boy in 1956, fought in the conflicts in Borneo and Malaya, and was honourably discharged in August 1971.

In October 2004 paragraphs 276E to 276K of the Statement of Changes in Immigration Rules (1994) (HC 395, as amended) were introduced by paragraph 15 of the Statement of Changes in Immigration Rules (HC 1112), according to Gurkha veterans discharged on or after 1 July 1997 the right to settle in the United Kingdom. In December 2004 paragraphs 276R to 276AC extended this right to their dependants. Provision was made in a policy outside the Immigration Rules for settlement by Gurkha veterans discharged before 1 July 1997, if they had existing ties with the United Kingdom. That policy also allowed for the exercise of discretion to grant an application for settlement in the United Kingdom by a dependant of the family unit aged 18 years or over, and listed five factors to be considered in assessing whether settlement was appropriate. In 2009 a further policy outside the rules was introduced, which indicated that dependent children aged over 18 would not normally have the discretion exercised in their favour, and would be expected to qualify for leave to enter or remain in the United Kingdom under the relevant provisions of HC 395, as amended, or under article 8 of the Convention, unless there were exceptional circumstances in the particular case. The five factors listed in the 2004 policy were re-stated. The 2009 policy was superseded in March 2010 by a policy in the same terms, except that it no longer contained the five listed factors (see paragraphs 2 to 11 of the judgment of the court in Gurung). The 2010 policy was upheld as lawful in Gurung (see paragraphs 20 to 26 of the judgment of the court).

The appellant’s father was granted indefinite leave to enter on 13 May 2010, and came to the United Kingdom on 26 June 2010. His mother, Madhu Maya Rai, was granted indefinite leave to enter, as his father’s spouse, on 28 July 2011, and came to the United Kingdom on 17 February 2012. On 2 October 2012 the appellant, then 26 years old, applied for entry clearance to settle in the United Kingdom as his father’s dependant. That application was refused on 3 January 2013. In its decision of 28 March 2014 the First-tier Tribunal allowed the appellant’s appeal both under the Immigration Rules and on article 8 grounds.

On the respondent’s appeal from the First-tier Tribunal the Upper Tribunal judge, in his decision of 30 June 2014, said it was “agreed and conceded that the Appellant did not meet the [requirements] of the Immigration Rules and an appeal could only have been allowed outside of the Rules” (paragraph 8). The First-tier Tribunal judge had been “obliged to consider whether he needed to look at this case outside of the Rules in terms of Article 8 of the ECHR”, but had not done so (paragraph 10). He had failed to “provide adequate reasons … to justify his conclusion that there was family life with the adult Appellant son and such that it was likely to be seriously affected by the Home Office decision” (paragraph 11). If he had applied “the case law and policies that deal with Gurkhas”, he might have concluded “that there were compelling circumstances and good grounds for granting leave to remain outside of [the] Rules”. In the light of the decision in Ghising (family life – adults – Gurkha policy), the Upper Tribunal judge acknowledged that “each case is fact sensitive placing an obligation on a judge to identify the nature of the family life asserted”, and said this had “not necessarily been adequately done in this case …” (paragraph 12).

In his determination promulgated on 5 September 2014 the Upper Tribunal judge said it had been “agreed that there were no issues arising in terms of the facts of the case …” (paragraph 6 of the determination). The appeal had therefore proceeded on the basis of the submissions made on either side. On behalf of the respondent it was submitted that “… even if one looked outside of the Rules this was not an exceptional case and exclusion was proportionate” (paragraph 7). For the appellant it was submitted that he “continued to live in the family home and is reliant upon his father both emotionally and financially”, that the case therefore “merited consideration outside of the Rules”, that “family life was engaged” and that “applying the ruling in [Ghising (family life – adults – Gurkha policy)] that could tip the balance in favour of the Appellant” (paragraph 8).

In Gurung, as the Upper Tribunal judge acknowledged, the Court of Appeal had held “that the historic injustice accorded to Gurkha veterans was one of the factors to be weighed in the proportionality balancing exercise under Article 8 of the ECHR against the need to maintain a firm and fair immigration policy”. The court had, he said, “noted that the question whether an individual adult child enjoyed family life depended on a careful consideration of all the relevant facts of the particular case …”, and in one of the cases it was considering it “had concluded that no error of law had been made where the [First-tier] Tribunal had found that although the usual emotional bond between parent and their children [was] present the requisite degree of emotional dependence for the purposes of Article 8 was absent” (paragraph 12). He also referred to the Upper Tribunal’s decision in Ghising and others (Gurkhas/BOCs – historic wrong – weight). There, he said, the Upper Tribunal had found that “where Article 8 was engaged and before [sic] the historic wrong the Appellant would have been settled in the UK long ago this would ordinarily determine the outcome of the Article 8 proportionality assessment in an Appellant’s favour, where the matters relied on by the Secretary of State consists solely of the public interest in maintaining a firm immigration policy” (paragraph 13).

The Upper Tribunal judge said it had been “conceded … that the Appellant does not meet the Immigration Rules”, and that he needed to “examine his case outside of the Immigration Rules in terms of Article 8 of the ECHR[,] the basis upon which this case is essentially submitted” (paragraph 15). He went on to say that “[where] a decision maker has found that an individual does not fall within Immigration Rules it is necessary to consider that individual’s case to see whether there are exceptional circumstances that would allow that individual to enter the United Kingdom … notwithstanding the inability to meet specific requirements of Rules” (paragraph 17). In the same vein, he said “the case law indicates naturally, that if a person fails to meet a set of criteria [but] is nevertheless to be allowed to settle in the United Kingdom then there must be some compelling or exceptional circumstances inherent within his own case”. But he added that he had “also had regard to the cases above relating specifically to the case of Gurkhas” (paragraph 18).

It is necessary to set out in full the eight paragraphs of the Upper Tribunal judge’s determination – paragraphs 19 to 26 – in which he appears to have been considering whether article 8 was engaged in this case. In those eight paragraphs he said:

“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.

The Upper Tribunal judge then said (in paragraph 27):

“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.”

The fact that the appellant was the adult son of a Gurkha veteran was, the Upper Tribunal judge accepted, “worthy of careful consideration given the historic injustice … in respect of Gurkhas”. As for “the impact on the family as a whole including the parents”, he noted, with “admiration”, the appellant’s father’s “service afforded to this country”. But there were, he said, “no other features … that render the specific facts of this case when taken as a whole sufficiently compelling or exceptional as to allow a departure from normal Immigration Rules” (paragraph 28). He referred to the observation in paragraph 43 of the judgment of the Court of Appeal in Gurung that “[the] requirement to take the [historic] injustice into account in striking a fair balance between the article 8.1 right and the public interest in maintaining a firm immigration policy is inherent in article 8.2 itself, and it is ultimately for the court to strike that balance”. This, he said, “underscores the need to look at each case on its own facts in determining whether there are exceptional circumstances and that in itself is in line with current case law referred to above when considering Article 8 outside of the Immigration Rules” (paragraph 29). Finally, he said (in paragraph 30):

“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.”

The legal principles relevant to this issue are not controversial.

In Kugathas v Secretary of State for the Home Department [2003] EWCA Civ 31, Sedley L.J. said (in paragraph 17 of his judgment) that “if dependency is read down as meaning “support”, in the personal sense, and if one adds, echoing the Strasbourg jurisprudence, “real” or “committed” or “effective” to the word “support”, then it represents … the irreducible minimum of what family life implies”. Arden L.J. said (in paragraph 24 of her judgment) that the “relevant factors … include identifying who are the near relatives of the appellant, the nature of the links between them and the appellant, the age of the appellant, where and with whom he has resided in the past, and the forms of contact he has maintained with the other members of the family with whom he claims to have a family life”. She acknowledged (at paragraph 25) that “there is no presumption of family life”. Thus “a family life is not established between an adult child and his surviving parent or other siblings unless something more exists than normal emotional ties”. She added that “[such] ties might exist if the appellant were dependent on his family or vice versa”, but it was “not … essential that the members of the family should be in the same country”. In Patel and others v Entry Clearance Officer, Mumbai [2010] EWCA Civ 17, Sedley L.J. said (in paragraph 14 of his judgment, with which Longmore and Aikens L.JJ. agreed) that “what may constitute an extant family life falls well short of what constitutes dependency, and a good many adult children … may still have a family life with parents who are now settled here not by leave or by force of circumstance but by long-delayed right”.

In Ghising (family life – adults – Gurkha policy) the Upper Tribunal accepted (in paragraph 56 of its determination) that the judgments in Kugathas had been “interpreted too restrictively in the past and ought to be read in the light of subsequent decisions of the domestic and Strasbourg courts”, and (in paragraph 60) that “some of the [Strasbourg] Court’s decisions indicate that family life between adult children and parents will readily be found, without evidence of exceptional dependence”. It went on to say (in paragraph 61):

“61.

Recently, the [European Court of Human Rights] has reviewed the case law, in [AA v United Kingdom [2012] 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”.”

Ultimately, as Lord Dyson M.R. emphasized when giving the judgment of the court in Gurung (at paragraph 45), “the question whether an individual enjoys family life is one of fact and depends on a careful consideration of all the relevant facts of the particular case”. In some instances “an adult child (particularly if he does not have a partner or children of his own) may establish that he has a family life with his parents”. As Lord Dyson M.R. said, “[it] all depends on the facts”. The court expressly endorsed (at paragraph 46), as “useful” and as indicating “the correct approach to be adopted”, the Upper Tribunal’s review of the relevant jurisprudence in paragraphs 50 to 62 of its determination in Ghising (family life – adults – Gurkha policy), including its observation (at paragraph 62) that “[the] different outcomes in cases with superficially similar features emphasises to us that the issue under Article 8(1) is highly fact-sensitive”.

To similar effect were these observations of Sir Stanley Burnton in Singh v Secretary of State for the Home Department [2015] EWCA Civ 630 (in paragraph 24 of his judgment):

“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.”

For the appellant, Mr Jesurum submitted that, in deciding whether article 8 was engaged in this instance, the Upper Tribunal judge failed to grapple with much of the undisputed evidence before him when describing the family’s circumstances and the appellant’s family life.

In his witness statement dated 11 March 2014 the appellant’s father had said that the appellant did not apply for leave to enter the United Kingdom with his, the father’s, wife as they “faced financial difficulties” (paragraph 7), that if he had been allowed to apply for settlement in the United Kingdom upon his discharge from the army, he would have applied “together with [his] family”, but he had not been given the opportunity to do so until recently (paragraph 8). His daughter, Chandra, was also dependent on him. They had intended to make applications for both her and the appellant at the same time, but because of the “financial restrain [sic]”, he had to decide which application to make first (paragraph 22). Because Chandra was still studying, they had decided that the appellant’s application should be made first (paragraph 23). The appellant was, his father said, “very much part of [the] family unit”, and relied wholly on him and his wife for “financial support, accommodation, and all other matters throughout life” (paragraph 19). He provided the appellant’s “accommodation and all other expenses” (paragraph 20). The appellant was unmarried and unemployed, and had always lived with them. They were “a very close family unit”. They “used to share everything together”. They lived in the same house, ate all their meals together, and shared all the “family chores” (paragraph 21). They had “always lived together” in their “family home” (paragraph 32). He contacted the appellant every day on his mobile phone (paragraph 34). The appellant was, he said, “an integral part of the family unit”. Their life appeared to have been “split” (paragraph 35).

Similar evidence was given by the appellant’s mother, in her witness statement of 11 March 2014. She said she did not want to leave the appellant in the family home, but could not delay her entry to the United Kingdom indefinitely because she had “to activate [her] visa” (paragraph 6). This seems to be a reference to the provision, in article 13(4)(a) of the Immigration (Leave to Enter and Remain) Order 2000, that “where the holder has stayed outside the United Kingdom for a continuous period of more than two years, [his leave to enter the United Kingdom] … shall thereupon lapse”.

The appellant, in his witness statement of 25 September 2012, said that his “financial dependency” on his father was “out of necessity”, there being “no jobs in [his] village other than farming and very few employment opportunities in Nepal”. As he did not have any “personal connections” outside his village, he would “not be able to find employment” (paragraph 15). He had always lived with his parents “in the family home” (paragraph 16). He could not apply for leave to enter the United Kingdom at the same time as his parents because of “financial difficulties”. The “cost of the application” was, he said, “extremely high”. If he had been able to apply at an earlier stage, he would have done so (paragraph 24).

None of that evidence was challenged before the Upper Tribunal. It was the basis of the submission that article 8 was engaged in this case.

As Ms Carine Patry submitted on behalf of the respondent, it cannot sensibly be said that the evidence given on behalf of the appellant was simply ignored. That suggestion would, in my view, be quite untenable. The evidence for the appellant was entirely uncontentious. So the Upper Tribunal judge did not have to resolve any disputes of fact for the purposes of the decision he had to make – even though he had set the First-tier Tribunal’s decision aside and was now determining the appellant’s appeal again. Nor did he have to set out all of the evidence before him. But he did refer to some of its main features. Thus, in paragraphs 19 and 20 of his determination, he narrated the basic biographical detail of the appellant, his parents and his siblings. In paragraph 21 he accepted as “essentially unchallenged” the evidence that the appellant was “unemployed and has a financial dependence on his father and mother in the [United Kingdom]”. In the same paragraph he mentioned the evidence – in the appellant’s “father’s witness statement” – explaining why no application for leave to enter had been made by the appellant’s sister Chandra. And in the following six paragraphs he referred several times to aspects of the “evidence” and to the absence of evidence on certain matters.

More powerful, in my view, is Mr Jesurum’s main submission here: that, in deciding whether article 8 was engaged in this case, the Upper Tribunal judge failed properly to apply to the particular circumstances of this case the principles bearing on the concept of the family life of adult, dependent children with their parents.

Mr Jesurum submitted that the Upper Tribunal judge failed to undertake the requisite careful consideration of all the relevant facts of the appellant’s case in the light of the principles and guidance to be derived from the authorities. In particular, the Upper Tribunal judge appears not to have asked himself whether “real” or “committed” or “effective” support was shown to exist in this case – given that, for the reasons very clearly explained in the evidence, the appellant had never left the family home or founded a family of his own. He seems to have left out of account the basic fact that, in applying for and being granted leave to enter the United Kingdom, the appellant’s father and mother had now taken up what had long been owed to them, but that, in the face of the financial difficulties they had described, they had had to make the unenviable choice between doing that and continuing their family life with their son in the family home in Nepal.

Countering those submissions, Ms Patry relied on Arden L.J.’s observation in Kugathas (at paragraph 25) that if members of a family are not in the same country, the existence of family life between them would “probably be exceptional”. In this case, Ms Patry submitted, the issue of “emotional” dependency was plainly an important factor, and the Upper Tribunal judge was entitled to treat it as such in his conclusions on article 8(1). But it was not the only factor he dealt with. Paragraphs 19 to 26 of the determination, Ms Patry submitted, present a clear and cogent answer to the question of whether article 8 was engaged in this case. The conclusion was that article 8 was not engaged. The Upper Tribunal judge then went on to consider, in accordance with the policy, whether the appellant’s case was in any event exceptional, even though the refusal of his application would not be a breach of his article 8 rights. On this understanding of the determination, as Ms Patry submitted, the question of whether it would be proportionate to interfere with the appellant’s family life did not arise, and the Upper Tribunal judge did not address that question at all. In the circumstances he cannot be criticized for failing to adopt the conventional structure of assessment normally to be expected in a case where article 8 is engaged (see speech of Lord Bingham in R. (on the application of Razgar) v Secretary of State for the Home Department [2004] 2 A.C. 368, at paragraph 17; the judgment of Baroness Hale of Richmond in ZH (Tanzania) v Secretary of State for the Home Department [2011] 2 A.C. 166, at p.174; the judgment of Underhill L.J. in Singh v Secretary of State for the Home Department [2015] EWCA Civ 74, at paragraph 64; and the decision of the Upper Tribunal in Secretary of State for the Home Department v Gulshan [2013] UKUT 00640 (IAC), at paragraph 26).

The first difficulty I have in accepting Ms Patry’s argument here is that the Upper Tribunal judge did not actually express a distinct and definite conclusion on the question of whether or not the appellant did in fact enjoy family life with his parents, within the meaning of article 8(1). There is, it seems to me, no clearly stated resolution of that issue in the determination.

The reasoning in the determination seems to fall into two main parts. The first part, in paragraphs 10 to 18, was scene-setting. In those nine paragraphs the Upper Tribunal judge depicted a background of case law and policy. The second part, in paragraphs 19 to 30, comprised his discussion of the merits of the appellant’s appeal and his conclusions.

Ms Patry urged us to accept that the substance of the Upper Tribunal judge’s consideration with regard to article 8(1) is contained entirely in paragraphs 19 to 26, and that one can properly infer from those eight paragraphs that, in his view, article 8 was not engaged. In my view that understanding of the structure of the determination is probably correct. But if it is correct, I think one might have expected at the end of paragraph 26 a clear statement of the Upper Tribunal judge’s conclusion on the question of whether article 8 was engaged, and at the beginning of paragraph 27, some signal of what he was going to do next – whether to undertake an article 8 proportionality assessment or to embark on a broader consideration of the case for granting leave to enter outside the Immigration Rules. If his consideration with regard to article 8(1) is concluded at the end of paragraph 26, I find it hard to make sense of the opening words of paragraph 27 – “I have considered firstly …”. To say the least, and allowing the Upper Tribunal judge the latitude we should to express his conclusions as he saw fit, the structure of his analysis is not, I think, as clear as it should have been.

But the real weakness in the Upper Tribunal judge’s conclusions with regard to article 8(1), as I see it, is one of substance, not merely of form.

The absence of a clear self-direction by the Upper Tribunal judge as to the legal principles bearing on the question of whether article 8 is engaged in a case of this kind, as synthesized in the Upper Tribunal’s decision in Ghising (family life – adults – Gurkha policy) with the explicit endorsement of the Court of Appeal in Gurung (at paragraph 46 of the judgment of the court), is not of itself fatal. The question is whether those principles were properly applied to the evidence in this case.

The Upper Tribunal judge referred in paragraph 21 of his determination to the evidence of the appellant’s continuing “financial dependence” on his father and mother, which was undisputed and which he accepted. In paragraph 23 he acknowledged the difficulty in assessing “emotional dependence”. But he referred to factors which seemed to him to indicate the appellant’s parents’ view that the appellant was “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”. The single factor which seems to have weighed most heavily in that conclusion was the appellant’s parents’ willingness to leave Nepal to settle in the United Kingdom when they did.

As Ms Patry submitted, it was clearly open to the Upper Tribunal judge to have regard to the appellant’s dependence, both financial and emotional, on his parents. This was, plainly, a relevant and necessary consideration in his assessment (see the judgment of the court in Gurung, at paragraph 50). If, however, the concept to which the decision-maker will generally need to pay attention is “support” – which means, as Sedley L.J. put it in Kugathas, “support” which is “real” or “committed” or “effective” – there was, it seems to me, ample and undisputed evidence on which the Upper Tribunal judge could have based a finding that such “support” was present in the appellant’s case. He found, however, that the appellant had a “reliance upon his parents for income that does not place him in any particular unusual category either within this country or internationally” (paragraph 23 of the determination), and no “indication on balance of a dependency beyond the normal family ties and the financial dependency” (paragraph 26). These findings, Mr Jesurum submitted, suggest that he was looking not just for a sufficient degree of financial and emotional dependence to constitute family life, but also for some extraordinary, or exceptional, feature in the appellant’s dependence upon his parents as a necessary determinant of the existence of his family life with them. Mr Jesurum submitted that this approach was too exacting, and inappropriate. It seems to reflect the earlier reference, in paragraph 18 of the determination, to the requirement for “some compelling or exceptional circumstances inherent within [an applicant’s] own case”. In any event, Mr Jesurum submitted, it elevated the threshold of “support” that is “real” or “committed” or “effective” too high. It cannot be reconciled with the jurisprudence – including the Court of Appeal’s decision in Kugathas – as reviewed by the Upper Tribunal in Ghising (family life – adults – Gurkha policy) (in paragraphs 50 to 62 of its determination), with the endorsement of this court in Gurung (in paragraph 46 of the judgment of the court). It represents, Mr Jesurum contended, a misdirection which vitiates the Upper Tribunal judge’s decision.

In my view those submissions of Mr Jesurum have force. But I think there is another, and no less serious, shortcoming in the Upper Tribunal judge’s approach.

Throughout his findings and conclusions with regard to article 8(1), the Upper Tribunal judge concentrated on the appellant’s parents’ decision to leave Nepal and settle in the United Kingdom, without, I think, focusing on the practical and financial realities entailed in that decision. This was, in my opinion, a mistaken approach.

The Upper Tribunal judge referred repeatedly to the appellant’s parents having chosen to settle in the United Kingdom, leaving the appellant in the family home in Nepal. Each time he did so, he stressed the fact that this was a decision they had freely made: “… not compulsory but … voluntarily undertaken …” (paragraph 20), “… having made the choice to come to the [United Kingdom]” (paragraph 21), “… the willingness of the parents to leave …” (paragraph 23), and “… their voluntary leaving of Nepal and leaving the Appellant …” (paragraph 26). 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.

The same may be said of the Upper Tribunal judge’s comment that “[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” (paragraph 22). Even if this was a fair reflection of the evidence explaining how it had come about that the appellant was now the only child of the family in the family home – which I do not think it was – it does not go to the question of whether, as a matter of fact, the appellant himself still enjoyed a family life with his parents – even if his siblings did not.

The burden of the evidence of the appellant’s father and mother in their witness statements, and the appellant’s in his, was this: that, in consequence of the “historic injustice”, it was only in 2010 that his father had been able to apply for leave to enter the United Kingdom; that his parents would have applied upon the father’s discharge from the army had that been possible; that they could not afford to apply at the same time as each other or with their dependent children – the appellant and their daughter Chandra; that the stark choice they had had to make was either to remain with the appellant and Chandra in Nepal or to take up their long withheld entitlement to settle in the United Kingdom; that they would all have applied together if they could have afforded to do so; that the appellant had never left the family home in Nepal, begun an independent family life of his own, or found work outside the village; and that he had remained, as his father put it, “an integral part of the family unit” even after his parents had settled in the United Kingdom.

Those circumstances of the appellant and his family, all of them uncontentious, and including – perhaps crucially – the fact that he and his parents would have applied at the same time for leave to enter the United Kingdom and would have come to the United Kingdom together as a family unit had they been able to afford to do so, do not appear to have been grappled with by the Upper Tribunal judge under article 8(1). In my view they should have been. They went to the heart of the matter: the question of whether, even though the appellant’s parents had chosen to leave Nepal to settle in the United Kingdom when they did, his family life with them subsisted then, and was still subsisting at the time of the Upper Tribunal’s decision. This was the critical question under article 8(1). Even on the most benevolent reading of his determination, I do not think one can say that the Upper Tribunal judge properly addressed it.

Whether the appellant did enjoy family life at the relevant time was, of course, a question of fact for the Upper Tribunal. And this court will always accord appropriate respect to the evaluative judgment of an expert tribunal on the facts it finds (see, for example, the judgment of Baroness Hale of Richmond in AH (Sudan) v Secretary of State for the Home Department [2008] 1 A.C. 678, at paragraph 30). In this case, however, the Upper Tribunal judge’s approach was, I believe, deficient. It fell short of the “careful consideration of all the relevant facts” on which, as Lord Dyson M.R. said in Gurung (at paragraph 45 of the judgment of the court), the answer to the question depends.

I would therefore uphold the appeal on this ground.

If my conclusion on the previous issue is correct, this one does not arise. But I shall deal with it nevertheless.

Mr Jesurum submitted that the significant weight which must be attached to the “historic injustice” will normally be enough to cause the proportionality balance to fall in an appellant’s favour (see the determination of the Upper Tribunal in Ghising and others (Gurkhas/BOCs – historic wrong – weight), at paragraphs 59 and 60). In such cases “exceptional circumstances” are not required, and it will normally be incumbent on the Secretary of State to justify a decision to refuse leave to enter or remain in the United Kingdom when the only countervailing consideration is the public interest in maintaining a firm immigration policy. Here, Mr Jesurum argued, the Upper Tribunal judge’s approach, in paragraphs 27 to 30 of his determination, was clearly inappropriate. This was not a case in the “usual run of cases”, where “compelling circumstances” are required to justify the decision taken outside the Immigration Rules (cf. SS (Congo) v Secretary of State for the Home Department [2016] 1 All E.R. 706, and see the judgment of the court in Gurung, at paragraphs 38 to 43). Even if “compelling circumstances” were required, the fact of the “historic injustice” and its consequences would in this case, as in others, constitute such circumstances.

Mr Jesurum relied on the judgment of Sedley L.J. in Patel. Having referred (in paragraph 14 of his judgment) to the potential relevance of “the history and its admitted injustices” to “the application of [article] 8(2)”, Sedley L.J. went on to say (in paragraph 15):

“… [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.”

“Causation” and “consequence”, submitted Mr Jesurum, were the relevant factors here. The Upper Tribunal judge ought not to have been seeking evidence of exceptional hardship caused to the appellant now, given that the appellant’s present situation, and his family’s, were the result of the “historic injustice”. Rather, he should have been considering whether there were, in fact, any countervailing considerations apart from the public interest in maintaining a firm immigration policy. He plainly failed to do so.

Ms Patry identified three stages of analysis in a case of this kind: first, the application of the Immigration Rules; second, the consideration of the appellant’s case under article 8 outside the rules; and third, the question of whether there were exceptional circumstances under the policy. In this case, she accepted, if the Upper Tribunal judge’s conclusions in paragraphs 27 to 30 of his determination had purported to be an article 8 proportionality assessment, they would not have been adequate (see paragraphs 41 and 42 of the judgment of the court in Gurung). But, she submitted, that would be a false understanding of what the Upper Tribunal judge was actually doing in that part of his decision. Having found, for the purposes of article 8(1), that family life was not demonstrated in this case, he was not concerned with undertaking a proportionality assessment under article 8(2). Instead, he was considering, under the relevant and lawful policy, whether this was an exceptional case, even though there was no breach of article 8 – the third of the three stages of analysis. This approach was, Ms Patry submitted, correct.

In Gurung the Court of Appeal referred (in paragraphs 36 and 37 of its judgment) to the classic statements of principle as to the weight to be given to particular factors when the article 8(2) balancing exercise is performed (in the House of Lords’ decision in Huang v Secretary of State for the Home Department [2007] 2 A.C. 167, at paragraph 16), and as to the need for a “a careful and informed evaluation of the facts of the particular case” in Lord Bingham of Cornhill’s speech in EB (Kosovo) v Secretary of State for the Home Department [2009] 1 A.C. 1159, at paragraph 12). It accepted the submission made on behalf of the Secretary of State that “the historic injustice is only one of the factors to be weighed against the need to maintain a firm and fair immigration policy”, and that “[it] is not necessarily determinative” (paragraph 38). It also said that “[the] flexibility of the “exceptional circumstances” [in the policy] is such that it does not require the historic injustice to be taken into account at all”. The “requirement to take the injustice into account in striking a fair balance between the article 8.1 right and the public interest in maintaining a firm immigration policy is inherent in article 8.2 itself …” and “… does not derive from the fact that the policy permits an adult dependent child to settle here in exceptional circumstances” (paragraph 43). But in this case, Ms Patry submitted, the Upper Tribunal did take the “historic injustice” into account in considering whether “exceptional circumstances” were demonstrated. The approach adopted was lawful.

I can see the sense of Ms Patry’s argument here. If the Upper Tribunal judge is to be taken as having concluded, in paragraphs 19 to 26 of his determination, that the appellant had failed to establish he had a family life with his parents, it would follow, as Ms Patry submitted, that there was no need for him to embark on a proportionality assessment. Equally, however, if his consideration with regard to article 8(1) – leading to the conclusion that the appellant had not demonstrated that he enjoyed family life with his parents – was flawed, as I believe it was, this would be enough on its own to invalidate his decision. There would then be – and, as Ms Patry conceded, there was – no proportionality assessment for the purposes of article 8(2). And the Upper Tribunal’s decision could not be saved by an intrinsically sound consideration of whether this was an exceptional case under the policy.

It is not clear what the Upper Tribunal judge was intending to do in paragraphs 27 to 30 of his determination. But as Ms Patry urged us to accept, I think he was in fact seeking to apply the policy, and to ascertain whether or not this was a case that could properly be regarded as exceptional, notwithstanding that to dismiss the appeal would involve no breach of the appellant’s rights under article 8.

This understanding of the conclusions in these four paragraphs of the determination makes sense of the several references in them to “compelling” or “exceptional” circumstances outside the Immigration Rules: “… sufficiently compelling or exceptional circumstances for consideration outside of the Rules”, and “the question of compelling or exceptional circumstances” (paragraph 27), “specific facts … sufficiently compelling or exceptional as to allow departure from normal Immigration Rules” (paragraph 28), and “exceptional circumstances” (paragraphs 29 and 30). The Upper Tribunal judge also referred, however, to article 8 in the course of this analysis: “… when considering Article 8 outside of the Immigration Rules” (paragraph 29), and “… exceptional circumstances … such that [the appellant] should be allowed entry clearance outside of the Immigration Rules under the terms of Article 8 of the ECHR” (paragraph 30). But I do not think this should be taken as indicating that he thought he was undertaking an article 8 proportionality assessment.

If, however, I am right in my view that the Upper Tribunal judge erred in his approach to article 8(1), I do not think we need to resolve any doubt as to the real import of paragraphs 27 to 30 of his determination. Whatever those paragraphs mean, his decision is, in any event, flawed by that prior error.

With effect from 28 July 2014, section 117A of the Nationality, Immigration and Asylum Act 2002, requires that where a court or tribunal is considering the public interest, and whether an interference with article 8 rights is justified, it must have regard, in cases not involving deportation, to the matters set out in section 117B, including that the maintenance of effective immigration control is in the public interest (section 117B(1)), that it is in the public interest that those seeking entry into the United Kingdom speak English (section 117B(2)), and that it is in the public interest that those seeking entry be financially independent (section 117B(3)).

Mr Jesurum pointed out that the Upper Tribunal judge did not consider the matters arising under those provisions of the 2002 Act. He submitted, however, that in view of the “historic injustice” underlying the appellant’s case, such considerations would have made no difference to the outcome, and certainly no difference adverse to him. Ms Patry submitted that if the Upper Tribunal’s decision was otherwise lawfully made, the considerations arising under section 117A and B could not have made a difference in his favour.

The submissions made on either side seem right. Certainly, if the Upper Tribunal judge’s determination is in any event defective as a matter of law, which in my view it is, I cannot see how the provisions in section 117A and B of the 2002 Act can affect the outcome of this appeal.

The errors I see in the Upper Tribunal judge’s determination are, I think, enough to invalidate it. I accept that, if the article 8(1) question had been dealt with as it should have been, the outcome might have been the same, but I find it impossible to say that it would inevitably have been so. It follows, in my view, that this appeal should be allowed and the case remitted to the Upper Tribunal for redetermination.

I agree.

I also agree. I bear in mind the statements about the role of this court when considering the decisions of specialist appellate tribunals dealing with a complex area of law in challenging circumstances made by Baroness Hale in AH (Sudan) v Secretary of State for the Home Department [2007] UKHL 49, [2008] 1 AC 678 at [30] and Lord Dyson in MA (Somalia) v Secretary of State for the Home Department [2010] UKSC 49, [2011] 2 All ER 65 at [45]. Lady Hale stated that the tribunal alone is the judge of the facts, and their decisions “should be respected unless it is quite clear they have misdirected themselves in law” and that “[a]ppellate courts should not rush to find such misdirections simply because they might have reached a different conclusion on the facts or expressed themselves differently”. Lord Dyson endorsed that approach and also stated that “where a relevant point is not expressly mentioned by the tribunal, the court should be slow to infer that it has not been taken into account”.

In this case, I consider that it is clear that the Deputy Upper Tribunal judge misdirected himself in law. Notwithstanding the approach in the cases referred to by my Lord, in paragraphs 18 and 26-28 of his determination the judge below appeared to apply a test of “exceptionality” in order to determine whether family life exists between the appellant and his parents. This is contrary to the approach in the Ghising cases approved in this court in Gurung’s case and what was expressly stated by this court in Singh v Secretary of State for the Home Department [2015] EWCA Civ 630. In Singh’s case, Sir Stanley Burnton (with whom Richards and Christopher Clarke LJJ agreed) stated at [24] that there is no requirement of “exceptionality”, that all depends on the facts, and that there must be something more than the love and affection between an adult and his parents or siblings which will not in itself justify a finding of family life.