The Upper Tribunal (“UT”, Justice Blake and Judge Dawson) has recently made it clear that in cases involving polygamy a child will not be able to join her biological father and (older) non-biological mother in the UK while the (younger) biological mother is still alive and well to care for her child in Nepal. The UT also stated that it did not find that the historic injustice suffered by Gurkhas applied to this case.
SG (referred to as the “claimant” by the UT ), a Nepali child, was born (to her father SB Gurung and his third wife P Gurung) on 9 January 2003. SB Gurung divorced his first wife but his second marriage, which produced a son, to S Gurung continued. At the time of the determination of this appeal, the father, his two wives, the claimant SG and her step sibling were all residing together in the father’s house in Nepal.
SB Gurung served in the Brigade of Gurkhas from 1969 to 1985. Unable to apply for settlement upon completing his military career, SB Gurung availed subsequently formulated immigration rules for Gurkha servicemen and applied for entry clearance, along with his wife S Gurung and their son, which they were all ultimately granted.
However, SG’s application was refused because her settlement in the UK was seen as a choice and not a necessity because her biological mother, who took care of her, remained in Nepal. Her father was not considered as having been solely responsible for her upbringing and her mother had not applied for settlement.
Judge Radcliffe allowed SG’s appeal in the First-tier Tribunal (FTT). He thought that on the facts SG’s father SB Gurung had sole responsibility because his two wives and two children were entirely dependent upon his income. SB Gurung was the primary decision maker and family head whose decisions on religious practice and family affairs were determinative.
The entry clearance officer (ECO) appealed the FTT’s decision to the UT because the judge had failed to apply the meaning of sole responsibility expounded in the decision of TD (Paragraph 297 (i) (e): “Sole responsibility”) Yemen  UKAIT 49.
In October 2011, a differently constituted panel of the UT found that the FTT made an error of law because it accepted that, despite the sponsor making the strategic decisions affecting the life style of his daughter, SG’s mother played “a significant and loving part in the upbringing of her daughter”. But another hearing was required to examine whether article 8 required the appeal to be allowed – having regard to the child’s best interests and the impact of section 55 of the Borders, Citizenship and Immigration Act 2009 and the decision of the Supreme Court in ZH (Tanzania)  UKSC 4 on article 8 decision making.
The case was advanced that SG thought of S Gurung as her “big mother” and P Gurung as her “little mother”; she wished to live with her big mother and her father and that her little (natural/biological) mother understood that her father SB Gurung had chosen her big mother to live abroad. In short, the child’s circumstances were such that she would – by virtue of better education and employment opportunities – have a better standard of living in the UK. Moreover, in light of the cultural norms prevalent in Nepal, the child’s biological mother (who wanted the best for her child) consented to her being raised with her father in the UK.
It was argued on SG’s behalf that the responsibility of her welfare was (in light of this case’s exceptional circumstances) her father’s duty. Moreover, in light of the cultural context, the fact that the majority of her family was settling in the UK compellingly demonstrated that her exclusion was undesirable under the Immigration Rules. It was equally submitted that the best interests of the child were reflected in both parents’ wishes and that the decision was an unjustified and disproportionate interference with the right to family life under article 8 of the ECHR.
The Upper Tribunal
In relation to the first point and the father’s responsibility towards the welfare of the child, the UT noted that the child’s well being was the “joint” responsibility of both parents. Moreover, the authorities in relation to exceptional circumstances required the natural parent to be sick, remarried or have other circumstances which SG’s real mother did not have/satisfy .
The UT made it plain that the ECO was entitled to refuse SG’s application because the purpose to bring her to the UK was economic and educational betterment. Given that she was in her real mother’s care, the majority of the family relocating to the UK was considered insufficient to allow SG to join her father who, in any event, was able to use his Gurkha’s pension to provide for her to attend a good Nepali school. See  – .
In relation to Gurkha policies, the UT thought this to be a “straightforward rules case rather than a case resting on policy” .
Dealing with the article 8 claim to admission under the headings “discrimination” and the “balance of the article 8 assessment”, the UT emphasised that although the entry of overage children had been litigated in the past it was “not aware of any litigation concerned with the children of a polygamous marriage and the present case accordingly breaks new ground” . It was explained that SG’s article 8 challenge – on the basis that she was being discriminated against as a consequence of being a child in a polygamous marriage – could not succeed because she was being refused entry for failing to satisfy the sole responsibility and exclusion undesirable requirements of the Immigration Rules.
Moreover, where the exclusion of a parent such as P Gurung (SG’s mother and SB Gurung’s third wife) is justified as an expression of UK public policy, the indirect effect on a child who is being and will continue to be cared for by such a wife is also justified .
Thus, from the above perspective, the UT did not deny SG admission for being the child of a polygamous marriage. Conversely, entry was denied because she (a) was not being joined by both her parents; and (b) that she did not meet the general criteria for joining a sole parent .
In respect of the balance of the article 8 assessment, the UT accepted that refusing entry had an impact on family life but it did not consider the degree of the impact to impose a positive obligation on the state to facilitate entry because the father had been in the UK just once: he had no existing ties – a house, a job or family – here –.
In contrast to Strasbourg authority (Sen v Netherlands 31465/96  ECHR 888 and Tuquabo-Tekle v Netherlands 60665/00  ECHR 803), it was also highlighted that the father was not being required to make an invidious choice between continued residence in the UK with a spouse and family who have grown up here and leaving another child of the family behind in the country of origin.
Hence, a legitimate aim was being pursued in denying admission to a SG because her circumstances were not in conformity with the rules on admission. The UT viewed its decision as a “modest contribution” to discouraging polygamy (and thus enhancing gender equality) in Nepal where entering a polygamous marriage is actually illegal but the practice is quite widespread and breaching the criminal law does not nullify the marriage  & . In ascertaining proportionality, the UT concluded that the interference was justified, proportionate and represented “a fair balance of the competing interests” .
It was noted that the separation of the family resulted because of the father’s freewill. No invidious or intolerable choice was imposed on him. He could exercise the option of keeping his family intact by staying in Nepal . Likewise his family which remained in Nepal would not be ostracised and would, in light of the remittances send from the UK, in fact be much better placed than ordinary Nepalis .
In her evidence, SG’s real mother (P Gurung) contemplated visits to the UK. Applying LD (Article 8 – best interest of child) Zimbabwe  UKUT 278 (IAC), the UT found that to maintain contact with her daughter, this could be reversed in practice and the father (SB Gurung) could quite easily go to Nepal to visit his family.
Explaining that parents’ wishes were incapable of imposing a positive obligation on the UK to admit a child because the father wants the child to be brought up here, UT held that:
i) Educational advantages and economic betterment, which might be enjoyed by a child, if admitted to the United Kingdom, are not compelling considerations to make that child’s exclusion undesirable, where the biological mother has cared for the child, and will continue to do so, in the country of origin.
ii) There is a legitimate aim in excluding from admission to the United Kingdom a woman who is a party to an actually polygamous marriage and that aim justifies the indirect effect of that exclusion on the child of such a marriage, in that it will be more difficult for the child to satisfy the immigration rules relating to sole responsibility and circumstances making exclusion of the child undesirable
iii) The policies adopted by the Secretary of State to facilitate admission of Ghurkha former soldiers and their dependants were not intended to give more favourable treatment to children born of an actually polygamous marriage.
iv) Paragraph 296 of HC 395, as presently applied, does not prevent the admission of such children and would probably be contrary to Articles 8 and 14 ECHR if it did.
v) In these circumstances it is not unreasonable to expect a sponsor to choose between coming to the United Kingdom with part of his family or remaining in Nepal with all its members, where there has been no previous residence and establishing of family life in the United Kingdom.
vi) The wishes of the child and both parents are relevant to ascertaining what her best interests are in the context of an application for admission to the United Kingdom but are not decisive of the proportionality balance.
vii) The proportionality balance in such cases is a fact sensitive one rather than determined by the rules.