The legal arguments on family life between adult children and parents are notoriously tricky. The guise in which the issue arose in Pun & Anr (Nepal) v Secretary of State for the Home Department [2017] EWCA Civ 2106 was whether non-dependent adult children could qualify under the Gurkha policy. The court ultimately held that the absence of dependency was fatal to the family’s case.

Remedying a “historic injustice”

Mr Ril Pun was discharged from Gurkha service in 1989 and held Indefinite Leave to Remain. This was granted under the policy redressing the “historic injustice” under which Gurkhas were treated less favourably in immigration terms than non-British Commonwealth soldiers serving in the British army.

A second Gurkha policy was brought into force in 2009. It allowed wives and children of Gurkha serviceman to be granted Indefinite Leave to Remain. In the case of adult dependent children, Gurung [2013] EWCA Civ 8 and Ghising [2013] UKUT 567 (IAC) held that the historic wrong should be given substantial weight in the Article 8 balancing exercise.

In this case, the appellants were the son and daughter-in-law of Mr Ril Pun. The wife had arrived in the UK on a Tier 4 (General) Student visa. The husband had joined her shortly afterwards. Both then applied for Indefinite Leave to Remain as adult dependent relatives of Mr Ril Pun. The application was refused primarily on the basis that neither was actually dependent and that their private life in the UK was insufficient to bring them within the scope of the Gurkha policy.

Weight of past injustice is less where non-dependent children are concerned

The main proposition at the Court of Appeal stage was that the historic injustice suffered by Gurkhas should nevertheless be given “substantial weight” in the Article 8 balancing exercise.

The court disagreed. It said the fact that neither spouse was dependent was a pertinent factor, which the First-tier Tribunal had failed to appreciate. That error infected the tribunal’s reasoning:

The FTT gave no consideration to the factor that the appellants were non-dependent adults or to the question whether that factor should reduce the weight given to the historic injustice caused to Mr Ril Pun. Both Gurung and Ghising were considering the weight to be given to the historic injustice in relation to dependent children. To hold that Ghising decided the case in the appellants’ favour once they had shown they had a private life without appreciating that the appellants (as non-dependents) were in a very different position from the appellant in Ghising is, with respect, an error of law.

Evidence of dependency is critical to trigger reliance on the historic injustice and the policy in general. In the absence of dependency, the court held, it was not appropriate to give the historic injustice the same weight as in applications made for adult dependant children. This was because the policy expressly stated:

Children over the age of 18 and other dependent relatives will not normally qualify for the exercise of discretion in line with the main applicant and would be expected to qualify for leave to enter or remain in the UK under the relevant provisions of the Immigration Rules… Exceptional circumstances may be considered on a case by case basis.

The importance of demonstrating dependency

The family faced an uphill struggle from the beginning given that even adult dependent children qualified only exceptionally under the policy.

Another unhelpful issue, from their point of view, was the knock-on effect of their argument if correct. The Court of Appeal noted that on the appellants’ hypothesis

all children of Gurkhas would be strong candidates for settlement regardless of their tie with their parents. It would, indeed, be difficult to say why grandchildren should not also have the right to settle.

It is difficult to see how the Home Office could have intended that the policy should apply so widely.

Whilst the position with adult children has always been difficult, this case highlights just how important demonstrating dependency is. Even the historic injustice to Gurkhas could only be given limited weight, in the interests of maintaining immigration control. In the general run of cases, there is unlikely to be any Gurkha policy argument to make. Such cases start on the back foot.