UK
Judge urges Home Secretary to reconsider visa for daughter of Gurkha war heroSarah Limbrick
Sat, 16 September 2023
Gurkha recruits pass out as they complete their military training at Helles Barracks at the Infantry Training Centre in Catterick North Yorkshire - Ian Forsyth/Getty Images Europe
A judge has urged Suella Braverman to allow the daughter of a Gurkha soldier to visit her father in the UK.
Captain Ram Kumar Serpuja Pun served five tours in Afghanistan for the British Army and wants his daughter, Sushma, 24, to join him in the UK from Nepal.
Sushma, who has lost three legal challenges to join her father, has spent her life in Nepal with her extended family after her mother abandoned her when she was three, and her father joined the army.
Captain Pun joined the Royal Gurkha Rifles in 1999, two years before his wife abandoned the family.
Cpt Pun, who had sole custody, wanted to bring Sushma to join him in the UK, but this was not practical, as he was a serving soldier living in barracks and serving abroad for much of the time, so he arranged for her to live with his extended family in Nepal.
He married again in 2020 and has a fifteen-month-old daughter with his wife. Now he wants his other daughter, who has a degree in business and wants to study for a Master’s degree, to join him.
Sushma’s initial claim was refused in January 2022 because she was 22 when she made the application, rather than under 18, and because the Home Office said she was not related to her father.
Her appeal against this decision was refused, and although the judge accepted she was related to her father, found that her right to family life was not protected by the Human Rights Act in this case, and there were no exceptional circumstances that would allow her to join her father in the UK.
Britain's Home Secretary Suella Braverman has been urged to accept the High Court's recommendation on behalf of a serving officer in the Gurkha Rifles - Kin Cheung/AP
‘Judge erred in law’
Upper Tribunal Judge Hugo Norton-Taylor found the judge had materially erred in law by failing to resolve the tension between the Home Office position on family life, her findings, and the conclusion there was no family life.
But he refused Sushma’s application to join her father in the UK, saying she had failed to show that the refusal of her human rights claim would lead to unjustifiably harsh consequences.
However, he did urge the Home Secretary to use her discretion to allow Sushma into the country, saying her father was a single parent who did all he could, with undoubted success, to ensure that she had a secure upbringing in Nepal.
The court heard that to study for a Master’s degree, Sushma would have to move from her home in Pokhara to Kathmandu, a nine-hour drive away, and faced uncertain job prospects in the future, even with a degree. Furthermore, her father worried about her safety in Kathmandu.
Significant emotional burden
The judge said that Cpt Pun had borne a significant emotional burden for almost twenty years, since assuming sole parental responsibility for his then three-year-old daughter, who effectively grew up without a parent being physically present in her life.
In a postscript to his judgment, Judge Norton-Taylor said that judges would occasionally make recommendations where, although appeals were dismissed, there were circumstances that might lead the respondent - in this case, the Home Secretary - to consider exercising her residual discretion and grant a form of leave to enter or remain.
“I would urge the respondent to at least consider exercising her residual discretion in this case,” he said. “At the very least, I would urge any future decision-maker to consider any application for entry clearance as a visitor, which may be made by the appellant very carefully indeed.
“Ordinarily, an unsuccessful application for settlement would be likely to count against the success of a visit visa application. However, it rather seems to be as though the appellant does have strong ties in Nepal, and her sponsor (father) has impeccable credentials. It would seem to be extremely unlikely that the sponsor would permit his daughter to overstay any leave to enter.”
Judge Norton-Taylor said that Captain Pun, who intends to remain in the Army until 2026, has “provided a very significant public service to the United Kingdom over the years. This has included no fewer than five tours of duty in Afghanistan.”
Upper Tribunal Judge Hugo Norton-Taylor found the judge had materially erred in law by failing to resolve the tension between the Home Office position on family life, her findings, and the conclusion there was no family life.
But he refused Sushma’s application to join her father in the UK, saying she had failed to show that the refusal of her human rights claim would lead to unjustifiably harsh consequences.
However, he did urge the Home Secretary to use her discretion to allow Sushma into the country, saying her father was a single parent who did all he could, with undoubted success, to ensure that she had a secure upbringing in Nepal.
The court heard that to study for a Master’s degree, Sushma would have to move from her home in Pokhara to Kathmandu, a nine-hour drive away, and faced uncertain job prospects in the future, even with a degree. Furthermore, her father worried about her safety in Kathmandu.
Significant emotional burden
The judge said that Cpt Pun had borne a significant emotional burden for almost twenty years, since assuming sole parental responsibility for his then three-year-old daughter, who effectively grew up without a parent being physically present in her life.
In a postscript to his judgment, Judge Norton-Taylor said that judges would occasionally make recommendations where, although appeals were dismissed, there were circumstances that might lead the respondent - in this case, the Home Secretary - to consider exercising her residual discretion and grant a form of leave to enter or remain.
“I would urge the respondent to at least consider exercising her residual discretion in this case,” he said. “At the very least, I would urge any future decision-maker to consider any application for entry clearance as a visitor, which may be made by the appellant very carefully indeed.
“Ordinarily, an unsuccessful application for settlement would be likely to count against the success of a visit visa application. However, it rather seems to be as though the appellant does have strong ties in Nepal, and her sponsor (father) has impeccable credentials. It would seem to be extremely unlikely that the sponsor would permit his daughter to overstay any leave to enter.”
Judge Norton-Taylor said that Captain Pun, who intends to remain in the Army until 2026, has “provided a very significant public service to the United Kingdom over the years. This has included no fewer than five tours of duty in Afghanistan.”
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