OA156132013

The respondent to this appeal is a citizen of Nepal who was born on the 2 nd January 1981. The Entry Clearance Officer (ECO) appeals against the decision of the First-tier Tribunal (Judge Parker, sitting at Taylor House) who allowed her appeal against the decision to refuse her application for entry clearance as the adult dependent daughter of a retired Gukha soldier who is settled in the United Kingdom.

Although he did not expressly say so, the judge appears to have accepted that the respondent could not meet the requirements of the Immigration Rules, for the reasons given by the ECO. He did however consider whether the decision to refuse her application for entry clearance was compatible with her right to respect of for private and family life under Article 8 of the 1950 European Convention for the Protection of Human Rights and Fundamental Freedoms. He concluded that it was not. The ECO now challenges that conclusion on a number of grounds, to which I now turn.

On the face of the determination, the ECO�s second argument might appear to be stronger than the terms in which it is asserted in the grounds of appeal may suggest. Thus, the grounds merely assert that there was �no evidence that [the respondent�s father] intended to settle in the UK prior to her turning 18 years of age�. At first blush, however, the judge may be thought to have found that her father�s desire to settle in the United Kingdom had only arisen after the respondent had turned 18 years of age. Thus, at paragraph 27, the judge said this:

The evidence of sponsor (a man of positive good character) is that he would have applied in 2004 if he could have.

It would be correct to say that an historic injustice is not necessarily determinative of an appeal that is brought on Article 8 grounds. However, the ECO�s grounds are wrong to assert that it was not determinative of on the facts of this particular appeal. Thus, in Ghising and other (Ghurkas/BOCs: historic wrong; weight) [2013] UKUT (IAC) 00567, the Upper Tribunal held that -