Rai v Entry Clearance Officer, New Delhi

Article 8(1) family life between an adult child and parents is a fact-sensitive question. There is no legal or factual presumption that family life exists or is absent, and no requirement of exceptionality. Love and affection alone may be insufficient, but real, committed or effective support and the whole family context are relevant. A tribunal must consider whether family life existed before separation and endured afterwards, including the practical and financial realities of the family’s circumstances. The historic injustice suffered by Gurkha veterans is relevant to Article 8(2) proportionality, although it is not automatically determinative. The Upper Tribunal’s failure to apply these principles invalidated its decision.

The appellant, a Nepalese citizen and adult son of a former Gurkha soldier, was refused entry clearance to settle in the United Kingdom. The First-tier Tribunal allowed his appeal under the Immigration Rules and on Article 8 grounds. The Upper Tribunal set that decision aside, reheard the appeal and dismissed it.

The appeal concerned whether the Upper Tribunal had properly assessed whether the appellant enjoyed family life with his parents under Article 8(1), and, if so, whether it had conducted a lawful proportionality assessment under Article 8(2). The central issue was whether the Upper Tribunal had properly engaged with the undisputed evidence concerning the appellant’s continuing dependence, residence in the family home and the financial circumstances that had prevented the family from applying together.

Lord Justice Lindblom gave the judgment of the court. Lord Justice Henderson and Lord Justice Beatson agreed. The appeal was allowed and the case was remitted to the Upper Tribunal for redetermination.

1. Article 8(1). Whether an adult child enjoys family life with parents is a question of fact requiring careful consideration of all relevant circumstances. There is no presumption for or against family life. Love and affection alone may be insufficient, but real, committed or effective support, age, residence, contact, dependence and whether the adult has founded an independent family are relevant. The court applied the principles in Kugathas v Secretary of State for the Home Department [2003] EWCA Civ 31, Gurung and Singh v Secretary of State for the Home Department [2015] EWCA Civ 630.
2. The Upper Tribunal applied too exacting an approach by looking for dependence beyond normal family ties and by treating the parents’ voluntary move to the United Kingdom as highly significant. It failed to grapple with the practical and financial realities, including the undisputed evidence that the family would have applied and moved together had they been able to afford it. It also failed to address whether family life had existed when the parents left Nepal and had continued afterwards. An exceptionality or compelling-circumstances threshold cannot be imposed when deciding whether Article 8(1) family life exists.
3. Proportionality. The court dealt with the proportionality issue in the alternative. If Article 8(1) is engaged, the historic injustice suffered by Gurkha veterans is a factor to be weighed with the public interest in maintaining a firm and fair immigration policy. It is not necessarily determinative, and the obligation to take it into account arises under Article 8(2), rather than solely from the exceptional-circumstances policy. No lawful proportionality assessment had been carried out in the present case.
4. Statutory considerations. The matters in sections 117A and 117B of the Nationality, Immigration and Asylum Act 2002 could not affect the outcome because the Upper Tribunal’s determination was already defective in law.
5. The Upper Tribunal’s determination was therefore invalidated and the appeal was remitted for redetermination.

1. Court of Appeal (Civil Division): Appeal allowed and remitted to the Upper Tribunal for redetermination: [2017] EWCA Civ 320.
2. Upper Tribunal (Immigration and Asylum Chamber): Deputy Upper Tribunal Judge Lever set aside the First-tier Tribunal’s decision on 30 June 2014, reheard the appeal and dismissed it in a determination promulgated on 5 September 2014.
3. First-tier Tribunal: First-tier Tribunal Judge Majid allowed the appellant’s appeal under the Immigration Rules and on Article 8 grounds on 28 March 2014.
4. Entry Clearance Officer: The appellant’s application for entry clearance was refused on 3 January 2013.