Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2024-002348

First-tier Tribunal No: HU/57101/2023
LH/01278/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:

On 23rd of January 2026

Before

DEPUTY UPPER TRIBUNAL JUDGE COLE

Between

ABIRAL GURUNG
(ANONYMITY ORDER NOT MADE)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr M West, Counsel instructed by Gurkha Solicitors
For the Respondent: Mr K Ojo, Senior Home Office Presenting Officer

Heard at Field House on 22 December 2025

DECISION AND REASONS

1. The appellant is a citizen of Nepal. On 21 March 2023 he applied for entry clearance to join his father in the UK. This application was refused by decision dated 11 May 203, and he appealed to the First-tier Tribunal. His appeal was dismissed in a decision promulgated on 8 March 2024. The appellant now appeals to the Upper Tribunal.

Background

2. The appellant is a citizen of Nepal. He applied to join his father, the sponsor, in the UK.

3. The respondent refused the human rights claim on the basis that the appellant failed to meet the requirements of the Immigration Rules and that there were no exceptional circumstances that would render the refusal of entry clearance a breach of Article 8.

4. The appellant appealed to the First-tier Tribunal. The appeal was heard by Judge Howard on 23 February 2024.

5. The Judge accepted that appellant and the sponsor had a protected family life. However, the Judge found that the refusal of entry clearance was proportionate and thus there was no breach of Article 8.

6. Judge Howard dismissed the appellant’s appeal.

7. The appellant submitted grounds of challenge. By decision dated 20 May 2024 First-tier Tribunal Judge Lawrence granted permission on the following terms:

2. It is arguable that the judge materially erred in law in making inconsistent findings as to whether the Appellant’s relationship with the sponsor engaged the family life element of article 8 of the ECHR and whether more than normal emotional ties existed between them.

3. It is arguable that the judge materially erred in law in their approach to the disputed claim that the Appellant’s father served in the British Army.

8. Thus, the matter came before me to determine whether Judge Howard’s decision involved the making of an error on a point of law.

The Hearing

9. Mr West relied upon the grounds as drafted. He highlighted that there had been a previous hearing on 22 July 2024 which was adjourned so that a transcript of the First-tier Tribunal could be obtained. The transcript confirmed that the sponsor’s evidence that his father served as a Gurkha had not been challenged. Mr West submitted that the Judge’s statement that there was “no evidence” that the appellant's grandfather served in the British army and so no issue of historic injustice was factually incorrect.

10. Mr West submitted that there was clear error of law in the way the Judge confirmed the engagement of Article 8(1) and then found that there were not more than the normal emotional ties between the appellant and the sponsor.

11. Mr Ojo confirmed that there was no Rule 24 notice. He submitted that historic injustice had not been raised as part of the initial application. He submitted that there was only a passing reference to this issue before the Judge and there was no documentary evidence to support the claim. Mr Ojo submitted that the Judge clearly meant no supporting evidence in paragraph 47.

12. Mr Ojo stated that the Judge found there was a family life and then correctly dismissed the appeal considering proportionality. He submitted that there were no exceptional or compelling circumstances and so the case was bound to fail on any view of the facts.

13. Mr West briefly responded. He stated that historic injustice was not a peripheral issue as it had been raised in the witness statements and appeal skeleton argument, as well in the submissions made to the Judge. He submitted that the Judge’s findings about there not being more that the normal emotional ties infected the whole of the Article 8(2) proportionality assessment.

14. After hearing the submissions, I reserved my decision.

Discussion and Analysis

15. When considering whether the Judge made a material error in law in dismissing the appellant’s appeal, I have remined myself of the following principles.

16. It is not permissible for the Upper Tribunal to simply disagree with the result or the way in which it was reached (see paragraph 36 of South Bucks County Council v Porter [2004] UKHL 33).

17. I take note of the narrow circumstances in which an appellate Tribunal may interfere with findings of fact and credibility by the fact-finding Tribunal. In Volpi v Volpi [2022] EWCA Civ 464, the Court of Appeal confirmed that unless the First-tier Judge's decision is “rationally insupportable”, the Upper Tribunal should not interfere with findings of fact by the First-tier Judge who had seen and heard the oral evidence.

18. I also remind myself that the Upper Tribunal is required to exercise judicial restraint in its oversight of the First-tier Tribunal's reasoning, as detailed by the Court of Appeal in paragraph 26 of Ullah v SSHD [2024] EWCA Civ 201.

19. Ground 1 argues that the Judge made inconsistent findings as to whether the appellant’s relationship with the sponsor engaged the family life element of article 8 of the ECHR and whether more than normal emotional ties existed between them.

20. In paragraph 32 the Judge stated “I accept that Article 8(1) of the ECHR is engaged in this case. I accepted that the appellant has a relationship with his parents.” The Judge then in paragraph 38 stated “I am not satisfied on the evidence provided that these ties are anything more than normal emotional ties between parents and their adult child.” The Judge then in paragraph 46 stated “I do not find that anything has been provided to demonstrate that such communication is anything other than normal emotional ties between parents and an adult son.”

21. The test for engagement of Article 8(1) has recently been clarified by the Court of Appeal in IA & Ors v SSHD [2025] EWCA Civ 1516 as whether parents and adult children “can demonstrate “additional elements of dependence, involving more than the normal emotional ties.””

22. Therefore, the Judge has conflated the issue of whether Article 8(1) is engaged with the issue of proportionality under Article 8(2). The findings the Judge made in paragraphs 38 and 46 are incompatible with the Judge’s finding at paragraph 32 that Article 8(1) is engaged.

23. It is of note that merely by stating that “the appellant has a relationship with his parents” the Judge fails to apply the correct legal test for assessing whether Article 8(1) is engaged.

24. Thus, I find that Ground 1 is made out. The Judge erred in law in his application of the relevant tests in relation to Article 8 and these failings undermine the whole of the assessment under Article 8.

25. In relation to Ground 2, I accept that the historic injustice issue was raised before the Judge and that there was the evidence of the appellant and the sponsor to support the claim that the appellant’s grandfather served in the British army as a Gurkha.

26. However, in my judgment, the Judge in paragraph 47 clearly meant that there was no supporting evidence before the Tribunal. The Judge in the same sentence where he states that there is “no evidence” details the type of documentary evidence that could have been served, The Judge then concludes that he is not satisfied that the evidence provided proves the historic injustice issue.

27. I acknowledge that the Judge deals with this matter briefly. However, I find that his reasoning is tolerably clear and is sufficient in the context of the case. The only relevant evidence is the sponsor’s bare assertion that his father would have settled in the UK after his discharge from the British army if he had been permitted. The Judge was not obliged to accept that this evidence alone, even if unchallenged, was sufficient to prove the historic injustice issue.

28. In this regard, I note that the sponsor was granted British citizenship in 2010 but did not come to the UK until 2022. Thus, in this specific case, it was permissible for the Judge to conclude that the evidence was not sufficient to demonstrate that the sponsor would have settled in the UK with the appellant a long time ago but for any alleged historic injustice.

29. Thus, I find that Ground 2 is not made out. The Judge dealt adequately with the historic injustice issue.

30. However, for the reasons detailed above, I find that Ground 1 succeeds as the Judge has made material errors of law in his decision and reasons relating to Article 8. Thus, it is necessary to assess the consequences of those errors.

31. Mr Ojo for the respondent submitted that any errors were not material as the claim was bound to fail on any view of the facts. This submission has caused me to carefully consider the claim to assess whether this is a case where there is only one possible outcome.

32. The appellant is a single man aged 24. He is a student who lives in the former family home. He lived with his parents until his parents came to the UK. The appellant is financially dependent on the sponsor. It is possible that the relevant facts of this case could demonstrate additional elements of dependence, involving more than the normal emotional ties. Thus, it cannot be ruled out that Article 8(1) will be found to be engaged in this case.

33. In relation to the proportionality assessment under Article 8 (2), it may be difficult for the appellant to demonstrate that the respondent’s refusal of entry clearance is an unjustifiable breach of Article 8, but I cannot say that this case is bound to fail.

34. Therefore, considering all relevant factors, I find that the error of law in this case is material to the outcome of the appeal and thus the decision of the Judge must be set aside.

35. Potential disposal was discussed with the parties. The parties had differing views as to the venue for the rehearing of this case. Although the core facts are accepted, these are relatively historic now as the case was heard in the First-tier Tribunal in February 2024. There will need to be updating evidence on the current circumstances of the appellant. Further, the Article 8 issue has been significantly clarified by the decision in IA & Ors v SSHD [2025] EWCA Civ 1516.

36. Thus, applying the guidance in paragraph 7 of the Senior President's Practice Statement and AEB v SSHD [2022] EWCA Civ 1512 and Begum (Remaking or remittal) [2023] UKUT 46 (IAC), given the issues and the amount of fact-finding that will be required to do, I am satisfied that the appeal should be remitted to the First-tier Tribunal.

37. Although Ground 2 was not made out before me, as the appeal has been remitted for a full re-hearing of the Article 8 issue, there is no restriction on the historic injustice issue being further evidenced and relied upon in the remitted hearing. The whole of the Judge’s decision is set aside with no findings preserved. The remitted hearing will be a complete de novo determination.

Notice of Decision

The First-tier Tribunal has been shown to have made an error of law material to the decision to dismiss the appeal. The determination is set aside. The appeal is remitted to the First-tier Tribunal for a de novo hearing before any judge other than Judge Howard.

C R Cole
Deputy Judge of the Upper Tribunal
Immigration and Asylum Chamber

19 January 2026