Roshan Ghising & Ors v The Secretary of State for the Home Department & Anor

In Article 8 claims by adult children of settled Gurkha veterans, the historic injustice which prevented the veteran from settling in the United Kingdom must be given substantial weight. There is no reversal of the ordinary burden in the proportionality assessment.

Where protected family life exists and the child would have settled in the United Kingdom with the parent but for that injustice, the resulting factor will ordinarily make refusal or removal disproportionate if the only countervailing consideration is the public interest in firm immigration control. The outcome may differ where further adverse matters, such as a poor immigration history or criminal conduct, properly carry weight for the respondent.

These conjoined appeals concerned adult children of former Gurkha soldiers who had settled in the United Kingdom. Mr Ghising sought indefinite leave to remain as his settled father’s dependent relative. The Rai siblings sought entry clearance as dependent relatives.

The Court of Appeal, in Gurung and others [2013] EWCA Civ 8, set aside the earlier Upper Tribunal decisions on proportionality under Article 8(2) and remitted the appeals. The preserved findings established family life, interference of sufficient gravity, and a causal link between the historic injustice to the Gurkha sponsors and the appellants’ inability to settle in the United Kingdom as children.

The central issue was the weight of that historic injustice in the Article 8 proportionality balance.

1. The appeals were allowed on Article 8 human rights grounds. The only issue remitted was proportionality. The preserved findings established protected family life and serious interference, and showed that each appellant would have settled in the United Kingdom as a child if the Gurkha sponsor had been permitted to settle on discharge.

2. The Tribunal rejected the contention that the historic injustice reverses, or otherwise alters, the burden in an Article 8 assessment. Once family or private life and interference are established, the respondent must justify removal or refusal as proportionate, although an appellant must adduce evidence within his or her knowledge. The relevant effect of the historic injustice is one of weight, not burden.

3. Following Gurung and others [2013] EWCA Civ 8, the historic injustice to Gurkhas was not to receive less weight than that suffered by British Overseas Citizens. The significant consequence was that the sponsors had been prevented from settling in the United Kingdom when their dependent children could have accompanied them.

4. Article 8 family life between a parent and an adult child remains fact-sensitive. It is not established merely because an adult child wishes to enjoy family life. In these appeals, however, family life and the appellants’ emotional and material dependency had already been found or accepted.

5. Where Article 8 is engaged and the requisite causal nexus is established, the historic injustice will ordinarily determine proportionality in the appellant’s favour if the respondent relies only on the general public interest in firm immigration control. It is not a trump card: independent adverse matters, including bad immigration history or criminal behaviour, may outweigh it. Here there were no such matters, so the historic injustice outweighed the public interest in immigration control.

• Upper Tribunal (Immigration and Asylum Chamber): The remitted appeals were allowed on Article 8 grounds.
• Court of Appeal: In Gurung and others [2013] EWCA Civ 8, the court set aside the earlier Upper Tribunal determinations insofar as they decided proportionality under Article 8(2), and remitted that issue.
• Earlier tribunal decisions: Mr Ghising’s appeal had been dismissed by a panel of the Upper Tribunal in Ghising (family life – adults – Gurkha policy) [2012] UKUT 00160 (IAC). The Rai family’s appeals had also been dismissed after re-making by Senior Immigration Judge Waumsley.