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The appellant is a national of Nepal born on 1 st July 1987. His appeal against the decision of the respondent refusing his application for entry clearance to the UK as an adult dependant relative of a person present and settled in the UK was refused by First-tier Tribunal Judge Traynor in a determination promulgated on 1 st July 2014. He dismissed the appeal under the Immigration Rules as well as pursuant to Article 8 of the Human Rights Convention.
The appellant had contended that the appeal should be allowed under Article 8. The Judge found that information placed before the respondent in the present application was no different to the earlier application, considered and refused in 2010. That had been dismissed on appeal in 2011. The appellant had not advanced any reason which would suggest that his circumstances had changed, or were in any way different to the earlier application.
In referring to Gulshan , the Judge stated at paragraph 48 that it is only where there are arguably good grounds that a person's Article 8 rights should be considered outside the rules. He went on to state that essentially the test is whether or not it is reasonable for such rights to be considered in circumstances where the respondent may not have had all the relevant information before him/her when the decision was made. The circumstances in the appellant's witness statement and the oral testimony of his father show that the circumstances were exactly the same in the present application.
With regard to proportionality, the Judge found that even if there were family life, any interference would be proportionate. He agreed with the respondent's submission that the burden of proof is upon the appellant, through his father, to prove that he would have settled in the UK following his discharge from the Brigade of Gurkhas in 1969 [58].
The Judge found that because the sponsor had never applied to come to the UK before, he must conclude on the balance of probabilities that he had never formed any intention to come to the UK prior to the recent changes in the law.
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