Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2024-001960/ UI-2024-001961/ UI-2024-001959

First-tier Tribunal No: HU/61724/2023 & 61729 & 61722 /2023
LH/06423/2023
LH/06425/2023
LH/06422/2023

THE IMMIGRATION ACTS

Decision & Reasons Issued:

On 22nd of May 2025

Before

UPPER TRIBUNAL JUDGE BEN KEITH

Between

RAJENDRA GURUNG
DIPAK GURUNG
RAM BAHADUR GURUNG
Appellants
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr Mandahi, instructed by CB solicitors.
For the Respondent: Ms S Nwchuku, Senior Home Office Presenting Officer.

Heard at Field House on 19 February 2025

DECISION AND REASONS

1. This is an appeal against the decision of Ft-T Judge Lester (“the Judge”), promulgated on 13 February 2024. That appeal was against a refusal of entry clearance the Secretary of State for the Home Department (“SSHD”) made on 31 August 2023.

2. The Appellants are all siblings and the issue before the Judge was Article 8 ECHR and specifically the question of whether dependency upon the sponsor (their mother) was established.

3. Permission to appeal was granted by UTJ Blundell on 6 August 2024 where he states:

“Judge Lester found that these appellants, who are in their forties and fifties, did not enjoy a family life with their elderly mother, who came to the UK in October 2023. It is said in the first ground of appeal that the judge applied the wrong test, in that he failed to consider whether the appellants enjoyed a family life with the sponsor before she came to the UK before considering whether it had endured to the date of hearing. For my part, I doubt whether what was said by Lindblom LJ at [39] of Rai v ECO [2017] EWCA Civ 320 mandates the adoption of such a two-stage test, but that point is better considered with the benefit of full argument. It is certainly arguable that the judge failed to confront the first question in his decision.

It is also arguable that the judge erred in the manner contended in the second ground. Leaving to one side the fact that the decision is seemingly written in shorthand rather than continuous prose in various places, it is arguable that the judge left material matters out of account in concluding that there was no family life in this case.”

4. I have heard argument from both advocates about whether the judge has addressed the issue of whether there was a family life prior to the Sponsor coming to the UK and in relation to purported errors in the judgment.

5. In my judgment there has been no assessment of whether family life was subsisting prior to the sponsor coming to the UK. This is particularly problematic given that the unchallenged evidence is that the mother and her adult children lived under the same roof prior to her coming to the UK and that the children continue to live in the same property. The best that can be found is at [28]:

“28. In her statement the sponsor (para 17) says she has been in contact with her children (the appellants) since her first day in the UK and they are in contact almost daily on Facebook Messenger (FB). She also says (para 5) that she has never attended school and is not educated. While I do not make an adverse credibility finding in relation to the sponsor it is the case that in her evidence she presented as an older lady in poor health who was at times somewhat overwhelmed by trying to understand questions or respond to them.”

6. At best this paragraph is incomplete. It suggests that the Judge finds the Sponsor credible. If that is the case and the judge then chose to reject the evidence for some other reason or find the tests not made out then it is not explained. Given that there is therefore no analysis of the family life issue there is an error of law as without that basic assessment no proper findings can be made either way.

7. In relation to Ground 2 and the factual errors, the judgment does not properly reasons the conclusions so it is not possible for me to determine without considering the evidence myself why a particular piece of evidence was accepted or rejected. What is clear is that the judge did make a significant error at [25]:

“25. In their statements the appellants say that they use the withdrawn sums to buy food. There was no evidence of them having to pay rent or a mortgage on their dwelling and small holding. I find there was no evidence provided of receipts or any other such documentation to show what the money is spent on, or of how the pension money is their only source of income.”

8. The evidence is that the property was owned outright – there was therefore no rent or mortgage payable. If that fact was held against the Appellant’s, as it seems to have been then that is a fundamental error. As a result this is also an error of law – both the specific error but also the general lack of reasons do not allow me to identify what parts of the evidence were given weight or why the decision was reached.

9. As a result, I find both Ground 1 and Ground 2 made out.

Notice of Decision

1. There is an error of law found in Ground 1 and Ground 2.
2. The case is remitted to the First Tier Tribunal for a rehearing as the case requires an assessment of all the evidence afresh.

Ben Keith

Judge of the Upper Tribunal
Immigration and Asylum Chamber

12 May 2025