Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: UI-2021-001237
HU/01013/2021

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On the 19 April 2022
On the 16 June 2022

Before

UPPER TRIBUNAL JUDGE CANAVAN

Between

MAN MAYA LIMBU
Appellant
and

ENTRY CLEARANCE OFFICER
Respondent

Representation:

For the appellant: Mr D. Balroop, instructed by Everest Law Solicitors
For the respondent: Mr E. Tufan, Senior Home Office Presenting Officer

DECISION AND REASONS

1. The appellant appealed the respondent’s decision dated 02 November 2020 to refuse a human rights claim in the context of an application for entry clearance as the dependent adult child of a retired Gurkha.

2. First-tier Tribunal Judge Stedman (‘the judge’) dismissed the appeal in a decision promulgated on 14 October 2021.

3. The appellant applied for permission to appeal the First-tier Tribunal decision on the following grounds:

(i) The judge erred in appearing to require the appellant to be ‘fully supported’ by the sponsor. The test for ‘real, effective and committed support’ did not require the appellant to be wholly financially dependent.

(ii) The judge failed to consider family life properly in light of the historic injustice relating to the settlement of Gurkhas in the UK.

(iii) The judge failed to consider proportionality properly.

4. At the hearing, Mr Balroop pointed out that there was also a mistake of fact in the judge’s findings relating to the ongoing contact with the appellant. Mr Tufan accepted that there did appear to be a mistake. Although at certain points in the decision the judge noted that the sponsor was ‘mainly living in Kathmandu since 2018’ [18], and that the sponsor had visited Nepal for a period of three years [19], when he came to make his findings, he appeared to place weight on the fact that the appellant had produced little evidence of contact in the period since he returned to the UK. At [25] the judge incorrectly stated that the sponsor returned in 2020, and at [28] referred to him returning on ’22 September’ (without reference to the year), when in fact the evidence indicated that the sponsor had only recently returned to the UK shortly before the hearing in October 2021.

Decision and reasons

5. This is a borderline decision because the judge made a number of findings that were open to him to make on the evidence. However, having analysed the decision I find that there is some force in the first two points made in the grounds of appeal.

6. The judge summarised the background to the case and directed himself to the relevant legal framework relating to the assessment of family life between adult children and their parents in the context of the historic injustice to Gurkhas [1]-[13]. The judge went on to make his findings with reference to the evidence given by the appellant and the oral evidence given by her father at the hearing. He referred to the correct legal test. He made clear that he understood that the question of whether there was ‘real, effective and committed support’ could be demonstrated by a strong family bond and financial support. However, he concluded that there was no such support in this case [17].

7. The judge went on to consider the family history. He noted that the appellant’s father applied to settle in the UK in 2006, but the appellant did not apply to join her father until this application was made in 2020. He recognised that the appellant could not qualify under the initial rules and policies put in place. Even after the change in policy in 2015 it was some time before she made an application to join her father in the UK [14]. At a couple of points in the decision the judge appears to consider whether there is family life for the purpose of Article 8(1), but only in the context of the sponsor being in the UK. At [15] he found that ‘there was little intention on the part of the appellant or her sponsor father, over the past 15 years or so of separation, of reuniting in the UK.’ [19].

8. The judge appeared to accept that, since 2018, the sponsor had spent a prolonged period of time in Nepal and noted that ‘the norm was maintained by the sponsor making very long visits to Nepal; a visit of 3 years is substantial’. He concluded that the sponsor was effectively living in the UK and Nepal [18]-[19].

9. The judge went on to analyse the evidence that might relate to financial dependency. He accepted that the appellant was living in her father’s house in Nepal and that the sponsor was ‘contributing to the financial status of his two children’. Although he noted that the appellant had worked in the past, she had lost previous jobs as a result of the pandemic. The judge found the sponsor to be evasive as to whether his son was working in Nepal. He did not consider it plausible that the sponsor would not know if his son was working or not. For this reason he concluded that it was possible that the appellant’s brother might also contribute to her upkeep and that the appellant was ‘not financially dependent on her father to any significant degree beyond the provision of accommodation.’ [23]. He accepted on balance that the appellant had always lived in the family home and had not formed an independent family unit but did not accept that she had been ‘fully supported’ by the sponsor during their years of separation [26].

10. The judge recognised that the assessment did not relate solely to financial dependency and that emotional ties might also form part of the picture. In this regard he concluded that there was ‘very little evidence of any real emotional connection or bond between the sponsor father and the appellant.’ [24]. Nevertheless, the judge appeared to accept that the sponsor had spent his time in Nepal ‘with the appellant’ [25] and even went so far as concluding that the sponsor ‘considers himself to have a home in Nepal with his children and a home in the UK.’ He went on to find: ‘Now that he is by himself in the UK and not in the best of health, then it is natural that he would wish to be with his children in Nepal and that is where he has enjoyed family life with his children over the past few years and where he now returns to continue it.’ [emphasis added] [28].

11. Having made a series of positive findings that the appellant continued to live in the family home, may receive some financial support, and that the sponsor enjoyed a family life with his adult children in Nepal it is difficult to see how the judge came to the conclusion that Article 8(1) was not engaged [29]. The findings are somewhat contradictory and unclear. Although the judge recognised that the sponsor was providing at least some financially support, it is not a legal requirement to show that he ‘fully supported’ the appellant. Indeed, family life could be engaged without any financial support whatsoever.

12. The judge was clearly aware of the sponsor’s circumstances, but failed to engage adequately with what was being said. In his statement, the sponsor said that he had found it increasingly difficult since his wife died in 2014. His health began to fail and he had no support in the UK. It was because of these circumstances that he returned to Nepal in 2018 to live with his daughter. The sub-text is that she has been caring for her father in his advancing years. This is a factor that is at least capable of amounting to the kind of close ties required to establish family life between adult relatives. It was only after they realised that older children might still be able to apply to join him in the UK on human rights grounds that the application for entry clearance was made for her to join him in the UK rather than supporting him in Nepal.

13. Although the judge appeared to understand the circumstances, he did consider how they might engage Article 8(1) in the context of an application for entry clearance for the appellant to join her father in the UK. The only reason why the sponsor had to spend so much time in Nepal was because he had no family members to support him in the UK. Having understood that his daughter did not qualify for settlement under the rules or the relevant policy, the sponsor appeared to think he had no choice but to return to Nepal to receive the support he needed. The judge’s failure to factor these relevant considerations into the Article 8 assessment amounts to an error of law.

14. For the reasons given above, I conclude that the First-tier Tribunal decision involved the making of an error of law. Although the judge made a series of seemingly positive findings, after a discussion at the hearing, it was agreed that it might be difficult to preserve individual findings. Any judge who remakes the decision would need to conduct a holistic assessment of the evidence as a whole. Although the normal course of action would be for the Upper Tribunal to remake the decision, in the circumstances of this particular case a fresh hearing is likely to be needed. It is therefore appropriate to remit the case to the First-tier Tribunal.

DECISION

The First-tier Tribunal decision involved the making of an error on a point of law
The case is remitted to the First-tier Tribunal for a fresh hearing

Signed M. Canavan Date 20 April 2022
Upper Tribunal Judge Canavan

________________________________________________________________________________

NOTIFICATION OF APPEAL RIGHTS

1. A person seeking permission to appeal against this decision must make a written application to the Upper Tribunal. Any such application must be received by the Upper Tribunal within the appropriate period after this decision was sent to the person making the application. The appropriate period varies, as follows, according to the location of the individual and the way in which the Upper Tribunal’s decision was sent:

2. Where the person who appealed to the First-tier Tribunal is in the United Kingdom at the time that the application for permission to appeal is made, and is not in detention under the Immigration Acts, the appropriate period is 12 working days (10 working days, if the notice of decision is sent electronically).

3. Where the person making the application is in detention under the Immigration Acts, the appropriate period is 7 working days (5 working days, if the notice of decision is sent electronically).

4. Where the person who appealed to the First-tier Tribunal is outside the United Kingdom at the time that the application for permission to appeal is made, the appropriate period is 38 days (10 working days, if the notice of decision is sent electronically).

5. A “working day” means any day except a Saturday or a Sunday, Christmas Day, Good Friday or a bank holiday.

6. The date when the decision is “sent’ is that appearing on the covering letter or covering email