Maya Gurung & Ors v Entry Clearance Officer

In an Article 8 appeal relying on historic injustice, establishing family life is only the first step. The tribunal must separately decide whether, but for the injustice, the appellant would already have settled in the United Kingdom. That causal connection requires evidence and a fact-specific assessment. It should not be tested unduly rigorously, but a remote or speculative possibility is insufficient; proof may become harder as time passes or the appellant is further removed from the veteran. If there is no causal connection, the injustice is likely to carry little weight and the tribunal must undertake a full proportionality assessment. If a causal connection is established and the only public interest relied on is effective immigration control, the balance will normally favour the appellant, although proportionality must still be assessed.

Maya Gurung, the wife of a former Gurkha’s son, and their two children appealed against refusals of entry clearance. Their father and grandmother had settled in the United Kingdom after successful human rights appeals based on the historic injustice suffered by Gurkha veterans. The appellants remained in Nepal. The First-tier Tribunal found that they shared family life with their father and grandmother in the United Kingdom, but dismissed their appeals after finding the refusal proportionate.

Before the Upper Tribunal, the appellants argued that the historic injustice affected all relatives who shared that family life, so the public interest in refusing entry was reduced. The Entry Clearance Officer disputed that there was a causal connection between the injustice and the appellants’ circumstances. The central issue was how historic injustice should affect the Article 8 proportionality assessment, particularly where the appellants were more remote from the veteran.

Appeals dismissed. The First-tier Tribunal made no error of law, and its decision stood.

1. The Tribunal set out a staged approach. It must first decide whether Article 8(1) family life exists, applying the additional elements of dependency test confirmed in Secretary of State for the Home Department v IA [2025] EWCA Civ 1516. The test requires more than normal emotional ties; financial assistance alone has never been enough. If family life exists, the tribunal must separately assess causation and then proportionality.

2. The causal question is whether, but for the historic injustice, the appellant would already have settled in the United Kingdom. That inquiry is distinct from whether Article 8(1) family life exists. It requires evidence and findings about the particular family’s circumstances and choices. The test should not be applied unduly rigorously, but a remote or speculative possibility does not establish the connection. Causation may be harder to establish as time passes and as the appellant is further removed from the veteran. The Tribunal left open whether the formulation that the family “would or might” have settled should be preferred to “would”. It nevertheless held that speculation was insufficient. It followed the guidance in AP (India) v Secretary of State for the Home Department [2015] EWCA Civ 89.

3. If causation is not established, the historic injustice is likely to carry little weight. The tribunal must conduct a full proportionality assessment, weighing the public interest, including effective immigration control and relevant policy, against the family’s interest in developing their family life. If causation is established, proportionality must still be assessed. The balance will normally favour the appellant where the Secretary of State relies only on the general public interest in effective immigration control. Historic injustice is not an automatic trump card.

4. On the evidence, the veteran would have settled in 1963, before he married the appellants’ mother and before their father was born. The Judge was entitled to find it extremely unlikely that the appellants would have formed their present family life had their father moved to the United Kingdom as a child. The suggested alternative arranged marriage was unsupported and too speculative. The Judge was also entitled to consider whether the injustice had been remedied before the veteran’s death. The finding that the appellants were too remote from the injustice, and that it deserved little weight in their proportionality assessment, was open to her. The public interest outweighed their family life in the circumstances.

1. Upper Tribunal (Immigration and Asylum Chamber): Dismissed the appellants’ appeals and held that the First-tier Tribunal’s decision involved no error of law and would stand.
2. First-tier Tribunal: Judge Neave dismissed the appeals against the Entry Clearance Officer’s refusals, finding that Article 8 family life existed but that refusal was proportionate. The decision was promulgated on 21 May 2025; no citation is stated.