Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2023-005608

First-tier Tribunal Nos: HU/60412/2022
LH/03697/2023

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On 12 March 2025

Before

UPPER TRIBUNAL JUDGE RIMINGTON

Between

Hukam Raj Rai
(NO ANONYMITY ORDER MADE)
Appellant
and

The Secretary of State for the Home Department
Respondent

Representation:
For the Appellant: Ms Rushforth, Bond Adams Solicitors
For the Respondent: Ms Gilmour, Home Office Presenting Officer

Heard at Field House on 23 January 2025

DECISION AND REASONS
1. The appellant is a citizen of Nepal born on 30th October 1983 and at the time of his application on 13th June 2022. The appellant’s application for entry clearance to settle in the UK as a dependent adult child of a sponsor, a Ghurkha, who was given leave to remain in the UK on 11th November 2022 as a Ghurkha discharged prior to 1st July 1997, was refused on 11th November 2022.
2. His appeal was dismissed by the First-tier Tribunal and the appellant appealed that decision on three grounds.
3. Ground 1, the judge erred in evidential and legal approach to the support threshold. At [31] the judge said it was not specified why the level of emotional support went beyond that which was normally expected between adult family members. The judge acknowledged evidence of regular phone contact but failed to acknowledge the evidence that the sponsor elicited in-chief that the appellant would turn to him for advice and guidance. This was reiterated during closing submissions. Rai v the Entry Clearance Officer (New Delhi) [2017] EWCA Civ 320 [36] was relied on. The test was whether the support, as Sedley LJ put it in Kugathas, was “real or committed or effective”. There was no requirement for “some compelling or exceptional circumstances inherent within (an applicant’s) own case”. The threshold of support should not be elevated too high in order for it be reconciled with the jurisprudence as reviewed in Ghising (family life – adults – Gurkha policy) in [50] to [62] of its determination.
4. In failing to acknowledge this the judge missed out critical evidence and argument going to the issue. If it were to be accepted that there has been financial support this inevitably was evidence of emotional support as well. The judge had artificially separated the consideration of support to emotional and financial and failed to consider the two in combination. There was no consideration for instance that regular contact plus financial support was capable of meeting the threshold.
5. Ground 2, the judge failed to confront the real issue. At [32] the judge accepted the submission that the motivation for dependency was not relevant. It was submitted that there was no proposition in law for the judge to then introduce the test of causation into the assessment particularly of Article 8(1). It was submitted the judge erred in finding against the appellant that he had chosen to be a dependant. By analogy the same could be said of the sponsor’s decision to come to the UK, which the Court of Appeal in Rai found to be mistaken approach. See [38] to [40].
6. It was submitted that the judge detracted from the real assessment of whether, as a matter of fact, the appellant received support to the requisite level.
7. In ground 3, the judge erred in application of the test. At [34] the judge said:
“34. I accept that some elements of the tests set out in the authorities could be said to be present in the Appellant’s case, in particular his continued residence in the family home, but taking account of the full context of the Appellant’s situation and the fact that the Appellant is an adult who is able to work and support himself in Nepal, I have concluded that while the support provided by the Sponsor may be “real” it is not sufficiently “committed”, because the financial support provided has been short term and has arisen as a result of the Appellant having given up work to come to the UK, or ‘effective’ because the Appellant could support himself without financial assistance from the Sponsor.”
8. In effect the judge said he found the support was real, it was not committed but this was applying the test in the alternative which was incorrect. The judge had introduced an additional element to the committed test of “sufficiently”. There was no sliding scale of commitment in law but it was a matter of whether there was or was not. The judge appeared to accept there was, albeit not to the right degree.
9. Additionally, the judge’s approach to “effective strays from the finding of fact to an assessment of a hypothetical. That the appellant “could” does not confront the real question.
10. It was submitted the judge had materially erred in law.
11. Permission to appeal was granted by First-tier Tribunal who recorded in essence that it was arguable that having apparently concluded in [17] of her determination the sponsor transferred sums of money to the appellant in Nepal, that the sponsor and appellant are in regular daily contact by phone and that the appellant continued to live in the sponsor’s house in Nepal, the judge had made an error of law in reasoning and conclusions with regarding to the test of “real, committed and effective support” under Kugathas and engagement of Article 8(1).
12. On 26 November 2024 the Upper Tribunal Judge decided on the error of law hearing and recorded that at the outset of the hearing that the Secretary of State, conceded the appeal. The Upper Tribunal decision set out at [7], [8] and [9] the following:
“7. The judge accepted that the test for ‘dependency’ was set out in Kugathas [2003] ECWA Civ 311, namely, more than ‘normal emotional ties’ between family members had to be established, and that ‘the irreducible minimum of what family life implies is real, committed or effective personal support’. The judge further accepted that the hurdle for establishing dependence was not high as set out in Rai [2017] EWCA Civ 320 and, the core question was whether the sponsor was providing ‘real, committed or effective’ support.
8. At paragraph [34] of the decision, the judge accepted that some elements of the tests were present, in particular, the appellant’s continued residence in the family home. However, the judge went on to say ‘I have concluded that while the support provided by the sponsor may be ‘real’ it is not sufficiently ‘committed’, because the financial support provided has been short term and has arisen as a result of the Appellant having given up work to come to the UK, or ‘effective’ because the Appellant could support himself without financial assistance from the sponsor. For these reasons, I have concluded that Article 8(1) is not engaged and the Appellant’s claim must fail’.
9. Considering the judge’s reasoning that the sponsor’s support was ‘real’, Ms Gilmour accepts that finding was enough to meet the ‘dependency’ test under the authorities. She further agrees with Mr Kashif that it was a material error of law for the judge to have gone on to suggest there was a requirement to prove exceptional dependency by stating that the sponsor’s support was ‘real’ but not ‘sufficiently committed’. No such requirement exists, and she acknowledged the threshold for establishing dependency was low.”
13. It is accepted at [10] that:
”10. In the circumstances, Ms Gilmour accepts that the judge’s finding that the sponsor’s support is ‘real’, is sufficient to meet the test in Kugathas and in Rai, as there is no requirement to prove exceptional dependency. Ms Gilmour also accepts that the judge’s comments at paragraph [32] about ‘causation’ being relevant to establishing dependency also constitutes a material error of law.”
Upper Tribunal Judge Khan set aside the decision of First-tier Tribunal.
14. When the matter came before me for a remaking on 23rd January 2025, having been transferred, Ms Rushforth conceded the appeal noting that it was accepted that the sponsor’s support for the appellant was real and she accepted that there was family life for the purposes of Article 8(1) under ECHR. Logically she therefore conceded the appeal as there were no countervailing features which would contravene the proper application of Article 8(2) and the appeal should therefore be allowed. I therefore allow the appeal on human rights grounds in the light of the Home Office concession and in accordance with Rai.

Notice of Decision
15. The appeal is allowed on human rights grounds.

Helen Rimington

Judge of the Upper Tribunal
Immigration and Asylum Chamber

27th February 2025