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The appellants had applied for entry clearance for the purposes of settlement in 2007 and 2008, those applications being refused. The sponsor, their father Janga Bahadur Pun, had been granted settlement in 2005. Their mother�s (Bishnu Kumari Pun) application for settlement was granted in 2008.
Following Judge Rimington�s determination, the ECO made new decisions on 19 December 2011, again dismissing the applications, with reference to the policies in relation to adult dependants of former Gurkha soldiers. It is those decisions which are the subject of the appeals before me and which came first before Judge Hanratty and then before DUTJ McWilliam, following which the appeals were remitted by the Court of Appeal.
The Court of Appeal ordered that DUTJ McWilliam�s determination be set aside except that the finding of family life between the appellants and their parents is preserved, but that the proportionality assessment should be made in line with the principles in Gurung [2013] EWCA Civ 8 . The purely factual, as distinct from the legal, basis of the proportionality assessment does not appear to be in dispute.
In Gurung it was decided that the Upper Tribunal in Ghising (family life-adults-Gurkha policy) [2012] UKUT 160 (IAC) was wrong to conclude that the �historic injustice� suffered by former members of the brigade of Gurkhas was not as severe as that suffered by British Overseas Citizens and that the weight to be attached to the injustice was �substantially less� in the Gurkha cases.
� If a Gurkha can show that, but for the historic injustice, he would have settled in the UK at a time when his dependant (now) adult child would have been able to accompany him as a dependant child under the age of 18, that is a strong reason for holding that it is proportionate to permit the adult child to join his family now. To that extent, the Gurkha and BOC cases are similar. That is why we cannot agree that, as a general rule, the weight accorded to the injustice should be substantially different in the two cases. �
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