Maya Gurung & Ors v Entry Clearance Officer [2026] UKUT 191 (IAC)

[2026] UKUT 00191 (IAC)Gurung & Others (Gurkhas; historic injustice; Article 8)
IN THE UPPER TRIBUNAL
Venue Heard at Field HouseHearing Heard on 13 January 2026
THE IMMIGRATION ACTS
Issued On 8 April 2026
Before
THE HONOURABLE MR JUSTICE LAVENDER, PRESIDENTUPPER TRIBUNAL JUDGE BULPITT
Between
MAYA GURUNGAppellantRAJESH GURUNGAppellantRAJANI GURUNGAppellantENTRY CLEARANCE OFFICERRespondentMs K McCarthy, Counsel instructed by Gurung & Co Solicitors for AppellantMr N Wain, Senior Home Office Presenting Officer for RespondentIn cases where it is argued that an historic injustice means it would be disproportionate to interfere with an appellant’s Article 8 family life rights the Tribunal should:
Between
determine whether there is a family life which engages Article 8(1), applying the “additional elements of dependency test” confirmed in IA;and, where there is such a family life:
Between
go on to consider whether there is a causal connection between the historic  injustice and the appellant’s circumstances, i.e. that “but for” the historic injustice the appellant would have settled in the United Kingdom already; anddetermine the public interest question through a proportionality assessment, balancing the public interest and the family’s interest in developing their family life. Where there is a causal connection between the historical injustice and the appellant’s circumstances and the SSHD is solely relying on the public interest in maintaining effective immigration control, that balancing exercise will normally fall in favour of the appellant.DECISION AND REASONSDate 2026-04-08
[1]This is an appeal by the appellants, brought with permission granted by Upper Tribunal Judge Rastogi, against the decision of First-tier Tribunal Judge Neave (“the Judge”), promulgated on 21 May 2025, to dismiss the appellants’ appeals against the decisions of the respondent Entry Clearance Officer made on 24 June and 25 October 2024 to refuse their applications for leave to enter the United Kingdom.[2]This appeal concerns what has been called the “historic injustice” suffered by veterans of the brigade of Gurkhas and the effect which that historic injustice has in a human rights appeal brought by appellants who have been held to share a family life with a resident of the United Kingdom. It was not suggested that there were any grounds on which this appeal should have been allowed in the absence of that historic injustice. (2) Background[3]Ram Bahadur Gurung (“the father”) was born in 1929. He served in the brigade of Gurkhas between October 1948 and November 1963. At the time of his discharge from the Gurkhas, the father was married to a woman who has been referred to as “Deri”, but the couple divorced in 1968. In 1971 the father married Bahaiku Gurung (“the mother”). Together, they had two children, Dan Bahadur Gurung (“the son”), who was born in 1974, and Chandra Kumari Gurung (“the daughter”), who was born in 1976. The family lived together in Nepal. The father died in 1984.[4]In April 2001 the son married the first appellant, Maya Gurung (“the daughter-in-law”). Following the marriage, the daughter-in-law moved into the family home, where the couple lived together with the mother and the daughter. The son and the daughter-in-law had a daughter, Rajani Gurung, the second appellant, who was born on 18 March 2002, and a son, Rajesh Gurung, the third appellant, who was born on 7 November 2004 (together, “the grandchildren”). The extended family continued to cohabit until, in 2012, the mother moved to the United Kingdom, having been granted leave to do so as the widow of the father, the former Gurkha.[5]Between 2012 and 2023 the son and the three appellants continued to live in the family home in Nepal along with the daughter. The mother was resident in the United Kingdom, but regularly visited the family in Nepal. In 2022 the son and the daughter applied for leave to settle in the United Kingdom on the grounds that they were the children of a former Gurkha. Although their applications were initially refused, they appealed against that decision to the First-tier Tribunal and in May 2023 First-tier Tribunal Judge Iqbal allowed their appeals, finding that they shared a family life with the mother which engaged Article 8(1) of the European Convention on Human Rights (“the ECHR”) and that the interference with that family life would be disproportionate in view of the historic injustice suffered by veteran Gurkhas. Accordingly, in September 2023, the son and the daughter moved to the United Kingdom.[6]Since September 2023, the son and the daughter have been living with the mother in Hampshire. The mother has dementia and is cared for by her children. The son has been working and sending some of the money which he earns to the appellants in Nepal. The appellants have continued to live in the family home in Nepal. The grandchildren are in full time education, while the daughter-in-law is unemployed. They have a small plot of land in Nepal where they grow vegetables and crops, but otherwise they use money from the family in the United Kingdom to support themselves.[7]On 4 April 2024 the appellants applied for leave to enter the United Kingdom. Their applications were refused by the respondent and they appealed to the First-tier Tribunal under sections 82(1)(b) and 84(1)(c) of the Nationality, Immigration and Asylum Act 2002 (“the 2002 Act”) on the ground that the respondent’s decision was unlawful under section 6 of the Human Rights Act 1998 because it was incompatible with the appellants’ rights under Article 8 of the ECHR. Their appeal was heard by the Judge, who decided as follows:(1) The appellants do not meet the requirements of the Immigration Rules. This was not disputed before the Judge or before us.(2) Although resident in Nepal, the appellants share a family life with the mother and the son in the United Kingdom which engages article 8(1) of the ECHR. This finding was not challenged before us and so is not at issue in this appeal.(3) However, and notwithstanding the historic injustice, the refusal of the appellants’ applications was a proportionate interference with the appellant’s rights under Article 8 ECHR. (3) The Legal Framework[8]Section 6(1) of the Human Rights Act 1998 provides as follows:
“It is unlawful for a public authority to act in a way which is incompatible with a Convention right.”
[9]The respondent is a public authority for this purpose. Section 1(1) of the Human Rights Act 1998 provides that a Convention right includes, inter alia, a right under article 8 of the ECHR.[10]Article 8 of the ECHR provides as follows:
“(1) Everyone has the right to respect for his private and family life, his home and his correspondence. (2) There shall be no interference by a public authority with the exercise of this right except as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic wellbeing of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”
[11]In relation to Article 8(1), as we have said, there was no dispute before us that, despite their residence in Nepal, the appellants had a family life with the mother and the son.[12]We note that the Court of Appeal held in its recent decision in Secretary of State for the Home Department v IA [2025] EWCA Civ 1516 (“IA”), at [142], that the main focus of the proportionality exercise under article 8(2) is the life of the person (or persons) within the jurisdiction, but that family life has to be considered as being a unitary family life with the relatives outside the UK.[13]In relation to Article 8(2), section 117A(3) of the 2002 Act defines the question whether an interference with a person’s right to respect for private and family life under Article 8(1) of the ECHR is justified under Article 8(2) as “the public interest question.” Section 117A(2) provides that, when considering the public interest question, the court or tribunal must (in particular) have regard in all cases to the considerations listed in section 117B of the 2002 Act. So far as is relevant to the appellants’ case, s.117B provides that the maintenance of effective immigration control is in the public interest (s.117B(1)), that it is in the public interest that those seeking to enter the United Kingdom are able to speak English (s.117B(2)), and that it is in the public interest that those seeking to enter the United Kingdom are financially independent (s.117B(3)).[14]In the context of family reunification cases, answering the public interest question requires the tribunal to determine “whether, in refusing to issue residence permits for the applicants, the Government can be said to have struck a fair balance between their interest in developing a family life in the respondent State on the one hand and the State’s own interest in controlling immigration on the other” see El Ghatet v. Switzerland 56971/10, 8 November 2016, quoted at [106] of IA. (4) The Issue and the Judge’s Decision[15]The issue in this appeal concerns the Judge’s assessment of the public interest question and whether the interference with family life was proportionate. In particular, the appellants challenge the weight which the Judge attached within that assessment to the historic injustice suffered by Gurkha veterans. The Judge set out her assessment of that question in the following paragraphs of her decision:
“17. The Appellants’ case is that an historic injustice was perpetrated upon their grandfather. This is because Gurkha veterans were historically treated less favourably than foreign and Commonwealth nationals seeking settlement in the United Kingdom on discharge from the British Army. In particular, Gurkhas discharged from the Army prior to 1 July 1997 were denied any opportunity to settle in the United Kingdom until 2004. The injustice was addressed to some extent by policies adopted in 2004 and developed by further policies adopted subsequently. 18. It is settled law that the historic injustice and its consequences are to be taken into account when assessing proportionality under Article 8(2). 19. In R (Gurung and others) v Secretary of State for the Home Department [2013] EWCA Civ 8 it was held that historic injustice is not necessarily a determinative factor in a proportionality consideration. If a Gurkha can show that, but for the historic injustice, he would have settled in the UK at a time when his dependant 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. Ultimately it is for the Tribunal, considering the facts of the individual case, to strike the balance between the Article 8 right and the public interest in maintaining a firm immigration policy. 20. Ms McCarthy argues that, but for the historic injustice, the Appellants’ father-in-law and grandfather would already be in the United Kingdom, and the Appellants would likewise be in the United Kingdom with their father. This submission is not in my judgment supported by the evidence. The Sponsor’s evidence given to Judge Iqbal in 2023 was that she was “certain” that her husband would have settled in the United Kingdom at the time of his discharge from the Army (that is to say, in 1963). He was unable to do so because of the historic injustice referred to above. That injustice was not remedied before his death in 1984, when the Husband was nine years old. 21. As Judge Iqbal found, the fact that the Husband was not able to accompany his father as a dependant child was a weighty factor in the balancing act rendering the refusal of leave to the Husband disproportionate. It does not in my judgment follow that the Appellants have been touched by the same injustice. Had the Husband accompanied his father to the United Kingdom as a child, it strikes me as unlikely in the extreme that he would have married the First Appellant, who does not appear to have ever left Nepal, nor would he have fathered the Second and Third Appellant with her. 22. For these reasons, in my judgment the facts and circumstances relied on by the Appellants are too remote from the historical injustice that was perpetrated on the Husband’s father. They are at best tertiary victims of the injustice. Though I have taken account of the injustice, in the circumstances of this case it is not in my judgment a particularly weighty factor to be considered in the balancing act.”
[16]On behalf of the appellants, it is argued that, but for the historic injustice faced by veterans of the brigade of Gurkhas, the appellants would have settled in the United Kingdom before now. As a consequence, when considering the public interest question, the public interest in refusing the appellants’ applications for entry clearance is reduced to zero and the interference with their family life is disproportionate. Ms McCarthy founded that submission on an argument that all those who share an article 8(1) family life with someone adversely affected by the historic injustice have equally been a victim of that historic injustice because their family life has been affected by the ongoing injustice. Ms McCarthy argued that the Judge applied too restrictive an approach when finding that the appellants are “too remote from the historic injustice” and were not “touched by the same injustice”.[17]The respondent accepted that, if the historic injustice “applies to the appellants”, then the Article 8(2) proportionality assessment was to be determined in their favour. However, the respondent argued that the appellants cannot establish a causal link between the historic injustice and their being refused entry to the United Kingdom and cannot establish that, but for the historic injustice, they would have settled in the United Kingdom long ago. In those circumstances, the respondent argues that the historic injustice does not apply to the appellants and that the Judge was right to find that it was not a weighty factor when answering the public interest question.[18]We are grateful to Ms McCarthy and Mr Wain for their detailed and careful written and oral submissions. (5) What was the Historic Injustice?[19]For many years Gurkha veterans were treated less favourably than other comparable Commonwealth citizens serving in the British army. The Secretary of State had a concessionary policy outside the Immigration Rules which allowed Commonwealth citizens subject to immigration control who were serving or former members of the British armed forces to obtain, on their discharge, indefinite leave to enter and remain in the UK, but Gurkhas were not included in the policy and were not therefore entitled to settle in the United Kingdom. This discriminatory treatment came to be referred to as a “historic injustice” perpetrated against veterans of the brigade of Gurkhas.[20]In 2004 the British Government agreed to change this policy. Recognising the bravery of men from the brigade of Gurkhas and their unquestioning loyalty to the monarch, plus the devotion and commitment shown by their families, the Secretary of State for the Home Department (“the SSHD”) announced “the best possible package to enable discharged Gurkhas to apply for settlement and citizenship.” Accordingly, in October 2004 changes were introduced to the Immigration Rules to enable Gurkha veterans with at least four years’ service who had been discharged within the last two years to apply for settlement. However, only Gurkhas discharged on or after 1 July 1997 were eligible to apply. At the same time the SSHD introduced a policy outside the Immigration Rules under which those discharged before July 1997 and more than two years before the application would still be permitted to settle if there were strong reasons why settlement in the United Kingdom was appropriate.[21]After that policy was found to be unlawful in Limbu and Others v Secretary of State for the Home Department [2008] EWHC 2261 (Admin), in June 2009 the SSHD announced that any Gurkha with more than 4 years’ service who had been discharged before July 1997 would also be eligible for settlement in the United Kingdom under the terms of a discretionary policy. That policy also allowed for spouses and children of the Gurkha to settle in the United Kingdom in line with the Gurkha. The policy was amended in March 2010 to enable the widow of a Gurkha with more than four years’ service who was discharged before 1997 to settle in the United Kingdom. There have been further changes to the policy in 2015, 2017, 2023 and 2024.

(a) NH (India)

[22]Entry Clearance Officer v NH (India) [2007] EWCA Civ 1330 (“NH (India)”) concerned a different historic injustice, which was perpetrated against British overseas citizens (“BOCs”), whose rights to settle in the United Kingdom were restricted by the Commonwealth Immigration Act 1968. That Act was found to be racially discriminatory and a “friendly settlement” involving a Special Quotas Voucher Scheme designed to rectify that discrimination, which operated until 2002, was itself discriminatory and resulted in waiting lists of more than five years. The scheme was abolished in 2002, when the British Nationality Act 1981 was amended to entitle certain BOCs to be registered as British citizens. The SSHD at the time explained that this action was “about righting an historical wrong”, the wrong being the “improper barring” between 1968 and 2003 of certain citizens of the United Kingdom and Colonies from settling in the United Kingdom.[23]The appellant in NH (India) was the son of a BOC who had been barred from exercising her right of residing in the United Kingdom as a result of the historic injustice until the appellant was over the age of 18. The appellant’s application for entry clearance to join his mother and father in the United Kingdom was refused, but the tribunal found that there had been a disproportionate interference with the family life shared between the appellant and his parents and allowed his appeal against that decision. In reaching that conclusion, the tribunal determined that the historic injustice was relevant to the public interest question.[24]The SSHD’s argument in the Court of Appeal was that the historic injustice was irrelevant to the public interest question. In separate judgments, Sedley LJ and Pill LJ rejected that argument.

(b) Patel

[25]In Patel, Modha, Odredra v Entry Clearance Officer [2010] EWCA Civ 17 (“Patel”)the Court of Appeal again considered the historic injustice which was perpetrated against BOCs. The appellants in Patel were the adult children of parents who were adversely affected by that historic injustice. Those parents settled in the United Kingdom following the correction of the historic injustice, but the appellants’ applications for leave to enter the United Kingdom, so as to join their parents, were refused by the Entry Clearance Officer. At [13] of his judgment, Sedley LJ noted that the issue in the appellants’ appeals against the refusal of their applications “is not reuniting a family which was divided by the 1968 Act: far too much time has gone by for that to matter save in the rarest of cases”,continuing at [14], “You can set out to compensate for a historical wrong, but you cannot reverse the passage of time.”[26]Recognising that in many cases children will have grown up and embarked on lives of their own, so that Article 8(1) will not be engaged in their cases, Sedley LJ stated that there will be other cases where there is such a family life between adult children in the home country and their parents who were now settled in the United Kingdom “not by leave or by force of circumstance but by long-delayed right.” This is what Sedley LJ said gave the historic injustice a potential relevance to article 8 claims:
“It does not make the Convention a mechanism for turning the clock back, but it does make both the history and its admitted injustices potentially relevant to the application of art. 8(2)”
[27]At [15] Sedley LJ summarised the impact of the historic injustice on the public interest question in the case of adult children found to share a family life which engaged article 8(1) with their parents in the United Kingdom, saying as follows:
“If, however, they come within the protection of art 8(1), the balance of factors determining proportionality for the purposes of art.8(2) will be influenced, perhaps decisively, by the fact (if it is a fact) that,but for the [historic injustice], the family would or might have settled here long ago.”
(emphasis added) (6)(c) Gurung[28]In R (Gurung) v Secretary of State for the Home Department [2013] 1 W.L.R. 2546: [2013] EWCA Civ 8 (“Gurung”)the Court of Appeal considered the 2012 version of the SSHD’s policy, which stated that adult dependent children and other dependent relatives of a veteran Gurkha will not normally qualify for settlement, but that exceptional circumstances may be considered on a case-by-case basis. The court found that policy to be lawful. In giving the judgment of the court, the Master of the Rolls then turned at [27]–[43] to consider the effect of the historic injustice on the public interest question.[29]By reference to the House of Lords’ decision in Huang v Home Secretary [2007] UKHL 11, at [36] the Master of the Rolls stated that the court should be wary about giving prescriptive guidance on the weight to be attached to factors in the proportionality assessment. He then quoted the following from EB (Kosovo) v Home Secretary [2008] UKHL 41, at [12]:
“… there is in general no alternative to making a careful and informed evaluation of the facts of the particular case. The search for a hard-edged or bright-line rule to be applied to the generality of cases is incompatible with the difficult evaluative exercise which article 8 requires.”
[30]At [38] of the judgment, the Master of the Rolls said as follows:
“We accept the submission of Ms McGahey that the historic injustice is only one of the factors to be weighed against the need to maintain a firm and fair immigration policy. It is not necessarily determinative. If it were, the application of every adult child of a United Kingdom-settled Gurkha who establishes that he has a family life with his parent would be bound to succeed. Mr Drabble does not contend for this extreme position and it is not supported by the approach adopted in the BOC cases to which we have referred.”
[31]The Court rejected a suggestion that the historic injustice suffered by Gurkhas should be afforded considerably less weight when answering the public interest question than the historic injustice suffered by BOCs, stating at [41]:
“…the crucial point is that there was an historic injustice in both cases, The consequence of which was that members of both groups were prevented from settling in the UK. That is why the historic injustice is such an important factor to be taken into account in the balancing exercise and why the applicant dependant child of a Gurkha who is settled in the UK has such a strong claim to have his Article 8(1) right vindicated, notwithstanding the potency of the countervailing public interest in the maintaining of a firm immigration policy.”
[32]The Master of the Rolls summarised his conclusion on the public interest question at [42], as follows:
“…If a Gurkha can show that, but for the historic injustice, he would have settled in the United Kingdom 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 would be 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.”
(emphasis added) (6)(d) Ghising[33]In Ghising (Ghurkhas/BOCs: historic wrong; weight) [2013] UKUT 00567 (IAC) (“Ghising”) the Upper Tribunal considered, on remittal from the Court of Appeal, two of the cases involved in Gurung, both of which involved adult children of veteran Gurkhas who had been refused permission to remain in the United Kingdom with their father or to join their father in the United Kingdom. In both cases the Tribunal noted that the unchallenged evidence was that the veteran Gurkha, had he had the opportunity to do so, would have settled in the United Kingdom at the time of his discharge and at a time when the appellants were young children. As a result, the Tribunal said at [46]:
“All the Appellants therefore meet the test articulated by Sedley LJ in Patel, that there be a causal nexus between the historic injustice and the actions of the sponsors, namely that, but for the Gurkhas’ inability to settle in the UK at the date of discharge when their children were young (and certainly well below the age of 18), they would have come here long ago.”
[34]Noting the conclusions reached by the Court of Appeal in Patel and Gurung, the Tribunal reminded itself of what had been said in Huang and EB (Kosovo) about the need for a careful and informed evaluation of the facts in each particular case and the incompatibility of a bright-line rule with the Article 8 assessment. The Tribunal then said the following at [59] about the impact of the historic injustice on the public interest question:
“That said we accept [counsel’s] submission that where Article 8 is held to be engaged and the fact that but for the historic wrong the appellant would have been settled in the UK long ago is established, this will ordinarily determine the outcome of the proportionality assessment and determine it in an Appellant’s favour.”
[35]At [60] the Tribunal noted that this did not mean that being an adult child of a United Kingdom settled veteran Gurkha is a “trump card” and said that not every application by such a person would inevitably succeed. The Tribunal gave cases in which an appellant had a bad immigration record or criminal history as examples of where the public interest may outweigh the powerful factors on the side of an appellant, notwithstanding the fact that they had suffered a historic wrong.

(e) AP (India)

[36]AP (India) v Secretary of State for the Home Department[2015] EWCA Civ 89 (“AP (India)”)was a case involving the son of a BOC. The father had belatedly settled in the United Kingdom in 2009, after the historic injustice perpetrated against BOCs had been corrected. The son was refused entry clearance to join his father. Reviewing the Court’s earlier decisions, the court noted at [19] that Sedley LJ’s judgment in Patel:
“makes clear, there must be a causal connection between the historic injustice and the appellant’s circumstances.”
[37]The issue in AP (India) was whether such a “causal connection” existed. The Court found on the facts of that case that a causal connection had been established and made the following more general observations about the consideration of this question in these circumstances at [37] and [38] of Elias LJ’s judgment: “37. I accept the submission of [counsel] that the causal connection in this case has been established notwithstanding the lacuna in the evidence. In my judgment, the courts should not in this context be unduly rigorous in the application of the causation test, given that its significance is to redress this historic injustice. I think there would be manifest unfairness to conclude that the absence of express evidence on the causation point should defeat the claim. 38. No doubt there may be cases where it can be shown that a sponsor would not have come to the UK any earlier than he or she did perhaps, for example, because there were obligations to care for other persons who would have been unable or unwilling to come to this country. Moreover, the causal link is likely to be more difficult to establish as the years pass because the longer the delay from the time when the right was conferred in May 2003 before a sponsor exercises the right to enter, the more difficult it will be to show that he would have come earlier had there been no barrier to entry before 2003.” (7) The Correct Approach to Considering Cases Involving Historic Injustice[38]As all the authorities reviewed above identify, the first step when considering a human rights appeal in which a historic injustice is raised is to consider whether Article 8(1) is engaged at all. As identified in Patel, there will be many cases where children of those affected by the historic injustice have embarked on lives of their own and the bonds which constitute a family life recognised by Article 8(1) will no longer be there. It is reasonable to anticipate that the number of such cases will increase as the time between the historic injustice being perpetrated and the decision being appealed becomes greater.[39]As the Court of Appeal has recently clarified in IA, Article 8(1), family life is normally limited to the core family and there will be no family life between parents and adult children or adult siblings unless they can demonstrate additional elements of dependence involving more than the normal emotional ties. This is a higher test than asking whether there is “real, committed or effective support”, although the existence of such support will be relevant to the test. The requirement for dependency, whilst it does not require complete dependency, denotes a significant relationship The test has never been met by financial assistance on its own.[40]Where family life is found, so that Article 8(1) is engaged, then the issue becomes whether interference with that right is justified under Article 8(2), i.e. the public interest question. The authorities reviewed above establish that where it is argued that a historic injustice means that the public interest question should be answered in favour of the appellant(s), the first question for the Tribunal to consider is whether there is a “causal connection” or “causal nexus” between the historic injustice and the appellant’s circumstances. This was a feature of the first decision in time, NH (India), in which it was noted that “but for” the historic injustice, the mother would have been able to bring the appellant to the United Kingdom long ago.[41]The “but for” test has been repeated in each subsequent decision, with the requirement for a causal connection between the historic injustice and the appellant’s current circumstances becoming an increasingly dominant feature in the judgments. In Patel it was made clear that it had to be established as a fact that the “but for” test was satisfied. The court in AP (India) described the reasoning in Patel as establishing that the requirement for a “causal connection” between the historic injustice and the appellant’s circumstances had to be established on the evidence. It is very clear from these decisions that the requirement for the appellant to establish such a causal connection is distinct from the question whether there is an Article 8(1) family life in existence. It is equally clear from these decisions that there will be cases where an Article 8(1) family life exists between the appellant and a sponsor affected by an historic injustice, but there is no causal connection between the historic injustice and the appellant’s circumstances. Elias LJ gave examples of this at [38] of his judgment in AP (India), which we have already cited. It would not be difficult to think of further such examples.[42]In those circumstances, we cannot accept Ms McCarthy’s submission that the key question to be asked in a case such as this is whether Article 8(1) family life exists at all. Nor do we accept the proposition advanced in her skeleton argument that the authorities give the clear answer that where Article 8(1) family life is found to exist, the historical injustice will normally require a decision in favour of the family member. Ms McCarthy submitted that “the Article 8(1) family life test operates as the remoteness test.” As the review of the authorities above indicates, however, this is not correct, as there is a requirement for a “causal connection” between the historic injustice and the appellant’s circumstances, notwithstanding the existence of Article 8(1) family life. Ms McCarthy made this submission by reference to the decision of the Court of Appeal in Rai v Entry Clearance Officer[2017] EWCA Civ 320. In that case, however, the court was not considering the public interest question, but merely the Tribunal’s examination of the question whether Article 8(1) family life existed at all. Having found that the Tribunal’s consideration of that question was flawed, the Court of Appeal explicitly said at [54] that it did not need to resolve questions about the Tribunal’s subsequent consideration of the public interest question.[43]As identified in the preceding paragraphs, however, it is in fact clear from the authorities that, where an Article 8(1) family life is found to exist, it is necessary to go on separately to consider whether there is a causal connection between the historic injustice and the appellant’s circumstances. It is only where such a connection is established as a fact that the historic injustice will attract considerable weight in the Article 8(2) proportionality assessment.[44]Equally, we do not accept Ms McCarthy’s submission that, when considering whether there is a causal connection between the historic injustice and the appellant’s circumstances, the historic injustice should be treated as an on-going injustice that continues to affect the lives of Gurkha families even after the Gurkha veteran (or his family) has settled in the United Kingdom. That argument was made by reference to a passage in Rai which recounted counsel’s submissions rather than the ratio of the court which, as already identified, related to the Article 8(1) issue and not the public interest question. Ms McCarthy’s submission does not reflect the way in which the causal connection requirement was considered in the authorities to which we have referred above. In our view, this submission seeks to treat the Convention as a mechanism for turning back the clock, rather than considering the factual situation in the particular case.[45]On our assessment of the authorities, it is apparent that consideration of whether there is a causal connection between the historic injustice and the appellant’s circumstances will involve an examination of the facts and circumstances of the specific case before the Tribunal. It will involve particular consideration of events occurring within the family and the decisions made by the family members. It should not be approached in an unduly rigorous way, but it will require evidence to be examined and findings of fact made about whether, but for the historic injustice, the appellant would have settled in the United Kingdom earlier.[46]In NH (India), Gurung and Ghising the “but for” test was expressed by reference to what would have happened but for the historic injustice, whereas in Patel it was expressed by reference to what would or might have happened but for the historic injustice. Ms McCarthy submitted that the formulation in Patel was to be preferred. It is unnecessary for the purposes of this appeal to resolve that issue, although it may be that the cases can be reconciled by viewing the “would or might” formulation as performing the same function as Elias LJ’s statement in AP (India) that the causation test should not be applied in an unduly rigorous manner. In our judgment, however, a remote or speculative possibility would not be sufficient to establish a causal connection.[47]We respectfully agree with the comments of Elias LJ in AP (India) that such a causal connection is likely to be more difficult to establish as time passes since the historic injustice was corrected and the right to enter the United Kingdom was provided. This is because lives move on as time passes and, as they do, it becomes increasingly difficult to unpick decisions and choices made within a family and to conclude that it was the historic injustice, rather than another reason, which prevented the appellant from coming to the United Kingdom sooner, i.e. “but for the historical injustice” the family would be in the United Kingdom. Equally, we consider that the causal connection is likely to be more difficult to establish the further away the appellants are from the veteran Gurkha who was deprived the right to settle in the United Kingdom upon discharge from the army. It is significant that all of the authorities reviewed above concerned appeals brought by children of the veteran Gurkha or BOC and, moreover, children who made their applications soon after reaching adulthood. Further, in all of the cases considered above, applications for entry to the United Kingdom were made shortly after the injustice was corrected and the veteran Gurkha/BOC claimed their long denied right to settle in the United Kingdom.[48]In cases where a causal connection between the historic injustice and the appellant’s circumstances is not found, the fact of the historic injustice is likely to have little weight in answering the public interest question. In such circumstances, a full proportionality assessment will be necessary, giving due weight to the public interest in maintaining effective immigration control and the SSHD’s policies on the one side of the scales and the appellant’s shared family life on the other side of the scales.[49]Where, by contrast, a causal connection is established between the historic injustice and the appellant’s circumstances, whilst it will still be necessary to undertake a proportionality assessment in order to answer the public interest question, the authorities reviewed above clearly identify that the effect of the historic injustice will normally outweigh the public interest, where that public interest is limited to no more than the general public interest in effective immigration control.[50]In summary, therefore, we find that in cases where an historic injustice is being argued the Tribunal should:(1) determine whether there is a family life which engages Article 8(1), applying the “additional elements of dependency test” confirmed in IA; and, where there is such a family life:(2) go on to consider whether there is a causal connection between the historic injustice and the appellant’s circumstances, i.e. that “but for” the historic injustice the appellant would have settled in the United Kingdom already; and(3) determine the public interest question through a proportionality assessment, balancing the public interest and the family’s interest in developing their family life. Where there is a causal connection between the historical injustice and the appellant’s circumstances and the SSHD is solely relying on the public interest in maintaining effective immigration control, that balancing exercise will normally fall in favour of the appellant. (8) Did the Judge Err in Law?[51]Applying this to the Judge’s decision, we are satisfied that, having reached the unchallenged finding that there existed family life engaging Article 8(1), the approach taken by the Judge to the Article 8(2) proportionality assessment in order to answer the public interest question was unimpeachable.[52]At [20]-[22] the Judge considered whether there was a causal connection between the historic injustice and the appellants’ circumstances and found that there was not. The Judge explicitly rejected the submission that, but for the historic injustice, the appellants would already be in the United Kingdom. She did this by reference to the specific evidence in the case, which, as the Judge identified, included evidence that, but for the historic injustice, the father would have settled in the United Kingdom on his discharge in 1963. We note that in 1963 the father was not married to the mother, but to Devi. He did not marry the mother until 1971 and the son and the daughter were not born until 1974 and 1976 respectively.[53]However, the Judge recognised that the historic injustice remained unremedied by the time of the father’s death in 1984, when the son was 9 years old. The Judge then said as follows at [21]:
“As Judge Iqbal found, the fact that the [son] was not able to accompany his father as a dependant child was a weighty factor in the balancing act rendering the refusal of leave to the [son] disproportionate. It does not in my judgment follow that the Appellants have been touched by the same injustice. Had the [son] accompanied his father to the United Kingdom as a child, it strikes me as unlikely in the extreme that he would have married the [daughter-in-law], who does not appear to have ever left Nepal, nor would he have fathered the [grandchildren] with her.”
[54]We consider that it was appropriate for the Judge to consider not merely what would have happened if there had never been a historic injustice, but also what would have happened if the historic injustice had been remedied sooner than it was.[55]The Judge found at [22] that in all the circumstances the appellants were “too remote from the historic injustice that was perpetrated on the [father]”. This was unquestionably a finding which the Judge was entitled to make on the evidence.[56]Having made that finding, the Judge undertook the necessary proportionality assessment at [23]–[25] in order to answer the public interest question. In that assessment she had regard to the considerations set out in section 117B of the 2002, as she was required to do. The Judge also had regard to the other side of the scales and, in particular, the strength of the family life shared by the appellants in Nepal and the mother and the son in the United Kingdom.[57]Ms McCarthy submitted that the Judge erred by failing to identify the weight which she gave to the historic injustice in her proportionality assessment and argued that it is apparent that no weight was given to the injustice. Contrary to that submission, however, the Judge explicitly stated at [22] that, in the specific circumstances of the appellants’ case, and where they were “at best tertiary victims of the injustice”, she had given “little weight to the historical injustice”. Further, when balancing the two sides of the scales in the balancing exercise at [25] the Judge concluded that the public interest outweighed the appellants’ family life, “notwithstanding….the effects of the historical (sic) injustice referred to above”. In these circumstances, we consider that it is tolerably clear from the Judge’s reasons that:(a) she gave weight to the historic injustice suffered; but(b) the amount of weight she gave was “little”; and(c) collectively, the amount of weight given to the factors on the family life side of the scales was not sufficient to outweigh the public interest.[58]In all the circumstances, the Judge’s conclusion that there was no causal connection between the historic injustice and the appellants’ circumstances and that, in those circumstances, the public interest outweighed the Article 8(1) family life shared between the appellants and their family in the United Kingdom did not involve an error of law and will stand.[59]At the heart of this case is what the Judge found in [21]. Ms McCarthy submitted that the Judge was wrong to base her decision on that finding.[60]In the first place, we make clear that we have no doubt that the Judge was entitled to make that finding as a finding of fact. We were shown no evidence which casts any doubt on the proposition that it is extremely unlikely that the appellants would now have a family life with the mother or the son (or the daughter) if the father had brought the son to the United Kingdom before the father’s death in 1984. Indeed, the likelihood is that, in those circumstances, the grandchildren would never even have been born.[61]Ms McCarthy submitted that it was unlikely, but not impossible, that the son, if he had accompanied the father to the UK, would subsequently have had an arranged marriage with the daughter-in-law. There was no evidence to support this submission. We consider that this scenario is too unlikely and speculative to satisfy the causation test.[62]We turn next to the question whether the Judge, having made that finding, was entitled to place on it the reliance which she did in deciding this case. We consider that she was. We take the question posed by Sedley LJ in Patel, namely whether, but for the historic injustice, the family would or might have settled here long ago. We consider that the Judge was entitled, in effect, to answer that question by saying that the father and the son (and, presumably, the mother and the daughter) would or might have done so, but not the appellants, since they would not have had any family life with the others if the historic injustice had either;(a) never existed; or(b) been remedied while the father was still alive.[63]Ms McCarthy also submitted that the policy which enabled the son to enter the UK was not introduced until 2015 and that, if he had been able to enter the UK before 2015, he might have found employment and been able to sponsor the entry of the appellants as his family members at a time when the grandchildren were still minors. However, we note that: the son’s appeal was allowed on Article 8 grounds, rather than under a policy; in any event, the children were still minors in 2015; and the son did not apply for leave to enter the United Kingdom until 2022. (9) Notice of Decision[64]The appellants’ appeals are dismissed.[65]The decision of First-tier Tribunal Judge Neave did not involve an error of law and will stand. Luke Bulpitt Judge of the Upper Tribunal Immigration and Asylum Chamber 08 April 2026