Pun & Anor (Nepal) v The Secretary of State for the Home Department

In Gurkha historic-injustice claims under Article 8, dependency at the date of application is the critical issue. The family-life or private-life label may be immaterial in ordinary proportionality analysis, but it cannot displace the policy’s distinction between dependent and non-dependent adult children. Private life may make historic injustice relevant in a general way, yet it attracts substantially less weight without dependency. A separate Article 8 connection, such as marriage to a person with limited leave, does not make settlement inevitable. Tribunals must balance the reduced weight of historic injustice against immigration control and other Article 8 factors. A tribunal errs by applying dependent-child authority without addressing the material difference created by non-dependency.

The appellants, two Nepalese spouses, entered the United Kingdom with limited leave. The wife entered as a Tier 4 student and the husband entered as her spouse. They later applied for indefinite leave to remain as adult dependent relatives of the husband’s Gurkha father. The Secretary of State refused the applications, finding no dependency and no family life with the father.

The First-tier Tribunal allowed the appeal, relying on the appellants’ private life and the historic injustice suffered by Gurkhas. The Upper Tribunal set that decision aside, found no dependency, and upheld the refusals. The central issues were whether private life could attract the same weight as family life in a Gurkha historic-injustice claim, and whether the appellants’ marriage and the historical injustice required a grant of settlement.

The court dismissed the appeal. It held as follows.

1. The First-tier Tribunal had erred in law. It found no family life or dependency between the appellants and the Gurkha father, but treated the historic injustice as decisive merely because the appellants had established private life. Gurung v Secretary of State for the Home Department [2013] 1 W.L.R. 2546 and Ghising [2013] UKUT 567 concerned dependent children. The First-tier Tribunal failed to address the material difference created by non-dependency.
2. The distinction between family life and private life may be arid in ordinary Article 8 proportionality cases. The court followed AA v United Kingdom [2011] ECHR 8000/08 and Singh v SSHD [2015] EWCA Civ 630 in that general context. The present case was different because the Gurkha policy made dependency critical. The absence of dependency meant that the historic injustice could not receive the same considerable weight as in a dependency case.
3. The Upper Tribunal’s apparent view that historic injustice could never be relevant to a private-life claim was too broad. It could be relevant in a general way under the Immigration Rules or, exceptionally, outside them. However, it attracted far less weight without dependency and did not make settlement inevitable.
4. The historical “but for” argument did not itself require settlement. Patel v Entry Clearance Officer (Mumbai) [2010] EWCA Civ 17 and Rai v Entry Clearance Officer, New Delhi [2017] EWCA Civ 320 emphasised the importance of Article 8 engagement and subsisting family life or dependency at the relevant time. Marriage to a student with limited leave provided an Article 8 connection, but not an entitlement to settlement.
5. The Upper Tribunal was entitled to find no emotional, financial or economic dependency, while accepting that private life existed. It applied section 117 B of the Nationality Immigration and Asylum Act 2002, considered the child’s interests, the appellants’ language ability and the precarious basis on which their private life had been formed, and concluded that effective immigration control outweighed the reduced weight of the historic injustice. No error of law was shown.

• Court of Appeal (Civil Division) — Dismissed the appeal and upheld the Upper Tribunal’s determination: [2017] EWCA Civ 2106.
• Upper Tribunal (Immigration & Asylum Chamber) — Set aside the First-tier Tribunal’s decision, found no dependency or family life with the Gurkha father, and upheld the Secretary of State’s refusal.
• First-tier Tribunal — Judge Youngerwood allowed the appeal, finding that the appellants’ private life enabled reliance on the Gurkha historic-injustice principle.