OA168072013

This is an appeal by Miss Bindiya Rana, a citizen of Nepal born 9 th December 1989. She appeals against the decision of the Entry Clearance Officer (ECO) made on 30 th July 2013 to refuse entry clearance to settle in the UK as the dependent of her father, an ex-Gurkha soldier. The application was made on 20 th May 2013. The Appellant appealed against that decision and her appeal was allowed by First-tier Tribunal Judge David Clapham on human rights grounds following a hearing on 28 th May 2014.

The Secretary of State appealed against that decision and on 4 th September 2014 having heard submissions, I found that Judge Clapham had made a material error of law in his determination and I set it aside with no preserved findings of fact.

He said that it would have been clearly understood by her father that he would not have the right to settle in the UK on completion of his service. He is now entitled to reside in the UK but is not obliged to. Ex-Gurkhas cannot bring their adult children to the UK with them unless they can either satisfy the requirements of the Immigration Rules or bring themselves within the ambit of the applicable published policy of the Secretary of State.

The decision was reviewed on 20 th January 2014 by the Entry Clearance Manager (ECM) who upheld it.

The position of the Appellant as set out in the Grounds of Appeal and in the skeleton argument provided at the hearing before me is as follows. Reliance is placed on the IDI referred to above at Chapter 15 Section 2A 13.2. This policy is the same as that considered in R (Gurung) v SSHD [2013] EWCA Civ 8 . In that case it was said: