Tribunal decisions

The decision

In the Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: UI -2024-000794
First tier number: HU/53718/2023

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 12 April 2024
On 1st May 2024

Before

HIS HONOUR JUDGE HANBURY
(SITTING AS A DEPUTY JUDGE OF THE UPPER TRIBUNAL)

Between

Pabitra Rana
(anonymity direction NOT MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:

For the Appellant: Mr S Jasri of Council
For the Respondent: Mr Ojo, a Home Office presenting officer

DECISION AND REASONS

Introduction and background

1. This is an appeal against the decision of FTT Judge G Black (the judge) who dismissed the appellant’s appeal against the respondent’s decision to refuse her human rights claim on 27th of February 2023.

2. The background is:

1) The appellant applied for leave to enter the UK as the dependent relative and daughter of a former Gurkha soldier;

2) The respondent refused that application because he was not satisfied that the appellant qualified as an adult child of a former Gurkha soldier discharged prior to 1 July 1997, nor did she qualify for consideration outside the Immigration Rules under article 8 of the European Convention on Human Rights (ECHR when considered against the authorities such as Gurung [2013] EWCA Civ 8, Kugathas [2003] EWCA Civ 31 and Ghising [2013] UKUT 00567 (IAC);

3) The judge considered that the appellant failed to meet the dependent relative rules but found she was in a good state of health and had no care needs. She lived with her family in Nepal from 1995 until 2014/15 when the sponsors left. However, since that time she appeared to live with her brother in the UK. There was a degree of mutual dependency with her brother, but the evidence of the address and home rental liabilities was unclear, due to the poor quality of documentation and other evidence produced on the appellant’s behalf. Both herself and the appellant and her brother were well into adulthood and existed as an independent family unit;

4) There were also discrepancies in the appellant’s marital status, pointing out that the sponsors 2013 application had identified the fact that both the appellant and her brother were married, but the application form stated that she was single;

5) No dependency had been established - hence the appellant could not fall with in either the Immigration Rules or within article 8 outside the rules.

3. Judge ID Boyes gave permission to appeal, finding that the applications inside at the grounds of appeal disclosed arguable grounds as to the way the judge dealt with the issue of the level of real, committed and effective support the appellant derived from her Nepalese sponsor? The judge’s reasoning appeared to be brief and arguably did not “delve deeply enough” into that which was claimed to be sufficient.
The hearing
4. At the hearing Mr Jasri criticised the judge’s decision for its brevity, referring to page CB8 of the bundle, where the judge’s conclusions are set out in three paragraphs. He said the date of departure of the sponsor from the UK to Nepal in 2014/2015 the appellant was dependent on them. An assessment was required then as to whether an article 8 right to private/family life had been established. The decision did not adopt such a “one stage” approach. Instead, only recent dependency was looked at. The whole history of the relationship needed to be considered.
5. Secondly, the judge was criticised for not engaging with the correct approach in Rai [2017] EWCA Civ 320 which departed from the earlier Kugathas approach by requiring “more than normal emotional ties”. Real and effective support from the adult sponsor to the adult child of the sponsor is sufficient for these purposes.
6. There was considerable discussion at the hearing over an over the judge’s reference to the discrepancies as to the appellant’s address. In short, the discrepancy did not exist when this was properly considered.
7. The document at page CB 75 was relied on as in support of the claimant’s claim that she was the person she said she was and to confirm her date of birth.
8. Furthermore, that there was inadequate reference to the sponsor’s evidence, which did form part of the evidence in the case. It was submitted that the judge had not been justified in saying that there was no evidence of support between 2014 and 2021 when what the judge meant to say was that there was no corroborative documentary evidence to support that claim.
9. The reasons given for dismissing the appeal were inadequate. It was submitted on the evidence and findings that had not been entitled to conclude that the appellant was leading an independent life.
10. I was also referred to the appellant’s skeleton argument at CB 26.
11. It was submitted that the judge had been wrong to say there was a lack of evidence of the period between 2014 and 2021, although it may that it could be said that there was “no (or limited) documentary evidence” (at CP 7-8).
12. The respondent on the other hand said that the judge was an experienced Judge who clearly followed Rai [2017] EWCA Civ 320 at paragraph 17. In the latter paragraph the Court of Appeal had explained that family life in a case between an adult child and surviving parent or parents must require “more… than the usual emotional ties” between such relatives but may include such economic ties as are established. As Sedley LJ had explained Kugathas, what constitutes extant family life may fall well short of what constitutes dependency.
13. The appellant was only 39 at the date of the hearing, her health was in a good state, and she was not dependent on the sponsor. She did not fall within the Immigration Rules, as she had not established any form of financial dependency, the judge was perfectly entitled to criticise the lack of evidence of the period 2014 to 2021 – a seven-year period. There was no documentary evidence of financial support during that period. That was remarkable and took the case outside the reasoning used in the leading case of Rai. Therefore, whilst the decision was brief, I was invited to uphold the decision of the FTT. This appeal is really a disagreement with the judge’s conclusions. Mr Ojo submitted that the reasoning was sound and that the respondent, having carried out a review of the decision on 2 November 2023 and considered the birth certificate, nevertheless found it is not sufficient to assuage all his concerns.
14. The appellant replied briefly to the effect that the decision was flawed, there was evidence of remittances. I was also addressed further on the name and address issue. I was invited by Mr Jasri to remit the matter back to the FTT for a re-hearing.
Discussion
15. I have considered whether there is evidence to support the contention that the adult appellant had established a form of dependency during the period 2014 to 2021 but concluded that the judge fully considered this issue. She nevertheless decided on the evidence that the appellant had not established this. She had regard to the leading authorities in the case including Rai but noted discrepancies and found that the evidence of financial support was of recent origin covering the period post-2021. The evidence she rightly concluded was not for a significant period following the sponsor’s departure from Nepal to the UK in 2014. She also rightly observed that the evidence happened to coincide with the period during which the application was made in.
Conclusion
16. I have concluded that the decision one open to the judge on the evidence she heard and there is no material error of law. In particular, the burden of proving family life outside the immigration rules rested on the appellant, who was unable to show real, effective and committed family support for the relevant period. I am satisfied the judge fully considered the evidence to explain the discrepancy in the address between given by the appellant in that which formerly used by the sponsor, including the explanation of the local ward change, but the judge found the evidence unconvincing given the lack of reference to the actual correct address. The brevity of the decision is not a criticism of substance, where the judge had applied her considerable experience in focusing on the key issues.

Notice of Decision

The appeal is dismissed.

No anonymity direction is made.

Signed Date 24th April 2024

HHJ Hanbury sitting as a Deputy Judge of the Upper Tribunal