United Kingdom Immigration and Asylum (AIT/IAC) Unreported Judgments

 

Upper Tribunal

(Immigration and Asylum Chamber) Appeal Number: HU/03724/2015

 

 

THE IMMIGRATION ACTS

 

 

Heard at Field House	Decision & Reasons Promulgated
On 26 th February 2018 Typed, corrected, signed and sent to Promulgation on 13 th February 2018.	On 15 th March 2018

 

Before

 

Upper Tribunal Judge Chalkley

 

 

Between

 

THE Secretary of State for the home department

Appellant

and

 

MR PUKAR SAHI

(ANONYMITY DIRECTION NOT MADE)

Respondent

 

 

Representation :

For the Appellant: Ms Fijiwalla, Home Office Presenting Officer

For the Respondent: Mr D Balrood, Counsel instructed by Everest Law Solicitors

 

 

DECISION AND REASONS

 

1. The appellant is the Secretary of State for the Home Department and to avoid confusion I am going to refer to her throughout this determination as being, "the claimant".

 

2. The respondent is a citizen of and resident in Nepal, whose date of birth is 10 ^th December 1987. He made application to the Secretary of State for entry clearance to settle in the United Kingdom as an adult dependant of his father, Mr Kessar Bahdur Sahi, a former British soldier in the Gurkha regiment. That application was refused.

 

3. The respondent appealed that decision and his appeal was heard by a panel of the First-tier Tribunal, comprising Judges Scott-Baker and Algazy, sitting at Taylor House on 27 ^th March 2017. They allowed the appeal under Article 8. The claimant, dissatisfied with the appeal, asserted that the judges had erred in law by finding that Article 8 was engaged, because the respondent was financially and emotionally dependent upon the sponsor. The grounds then suggest that Article 8 was not engaged and that the evidence did not demonstrate emotional dependency to the Kugathas standard. It was suggested that in assessing the respondent's emotional and financial dependency, the First-tier Tribunal erred.

 

4. Mr Balrood made reference to paragraph 37 of the determination, where Counsel appearing on behalf of the respondent before the First-tier Tribunal, relied on an acknowledgement by the Entry Clearance Manager in his review that he was satisfied that Article 8(1) was engaged.

 

5. Mr Balrood drew my attention to the fact that there was no Presenting Officer before the panel of the First-tier Tribunal and that they were, therefore, in a position where the question of whether or not Article 8 was engaged was not a matter for them to decide, since it had already been accepted on behalf of the claimant that it was. The panel of the First-tier Tribunal deal with the question of proportionality at paragraphs 50, 51 and 52 of their determination and, given that the sponsor had explained in his witness statement to the Tribunal that he would have settled in the United Kingdom on his discharge if he had the opportunity to do so, the Tribunal had not erred, Mr Balrod submitted. He invited me to uphold the decision of the Tribunal.

 

6. Ms Fijiwalla, who appeared on behalf of the claimant, accepted that she was in some difficulties given the concession by the Entry Clearance Manager in his review at page 2.

 

7. Neither representative having further comments to make, I have concluded that I must uphold this determination. The Entry Clearance Manager's review quite clearly indicates that he was satisfied that Article 8 was engaged. There was no Presenting Officer before the Tribunal and so the question of whether or not Article 8 was engaged was not something that need trouble them, since it had already been accepted that it was.

 

8. In the circumstances I find that the First-tier Tribunal have not materially erred in law and her determination is upheld. The appeal is allowed.

 

Richard Chalkley

Upper Tribunal Judge Chalkley

 

 

TO THE RESPONDENT

FEE AWARD

 

As the appeal was allowed, the First-tier Tribunal made a fee award in favour of the appellant of the full amount of any fee paid.

 

Richard Chalkley

Upper Tribunal Judge Chalkley