OA132082012

The appellant is a citizen of Nepal born on 25 May 1991. He applied for entry clearance to the United Kingdom as the over-age dependent relative of his father Bahadur Gurung, who had been granted indefinite leave to enter on the basis of his former services in the Gurkhas. He has been given permission to appeal against the determination of First-tier Tribunal Judge Cohen dismissing his appeal against the respondent�s decision to refuse his application.

Permission to appeal to the Upper Tribunal was sought on the grounds that the judge had made inconsistent findings in regard to family life and as to whether Article 8 was engaged on that basis; that the judge had erred by using an exceptionality test in his proportionality assessment under Article 8; that the judge�s treatment of the �historic injustice� to Gurkha veterans was inadequate; and that he had failed to apply anxious scrutiny in making his decision.

Mr Ball expanded upon the grounds of appeal, submitting that the judge had failed to make clear findings on the existence of family life for the purposes of Article 8, a crucial matter in this category of case, and had failed to engage with the principles in Gurung and others [2013] EWCA Civ 8 . The respondent had failed to point to any matters over and above the public interest in maintaining a firm immigration policy to justify the interference with the appellant�s family life.

Mr Avery submitted that the judge had found that family life had not been established, but had then gone on to consider the case in the alternative on the basis that there was limited family life since the appellant was leading an independent life. He had looked at the �historic injustice� and had decided that any interference was proportionate. He was entitled to reach such a conclusion.

I advised the parties that, in my view the judge had erred in law. His findings on family life were inconsistent. In this category of cases it was essential for there to be a clear finding in that respect, since that was the starting point upon which the principles in Gurung were founded. The judge had not properly engaged with the principles in that case and in the circumstances his conclusions were not sustainable. Accordingly I set aside the judge�s decision and enquired of the parties as to the process of re-making the decision.