Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2024-002691

First-tier Tribunal No: HU/53206/2023
LH/00440/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On 20 March 2025

Before

DEPUTY UPPER TRIBUNAL JUDGE WILDING

Between

RAYNELDA CAREON
(ANONYMITY ORDER NOT MADE)
Appellant
and

SECRETARY OF STATE FOR THE
HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr G Lee, Counsel, instructed by Clifton Law Solicitors
For the Respondent: Ms S Cunha, Senior Home Office Presenting Officer

Heard at Field House on 3 February 2025

DECISION AND REASONS
1. The appellant is a Filipino national, this is the remaking of her appeal against the respondent’s decision following my error of law decision which is appended to this decision.
Background
2. The background facts are as set out by the Judge below, which were replicated in my error of law decision. They are:
14. In 2017, the Sponsor became very ill and returned to the UK for medical treatment; the Sponsor is a British citizen. The Appellant accompanied the Sponsor, under a contract of employment as a domestic worker, and made the following visits to the UK:
(i) On 13 September 2017 with entry clearance for six months. The Appellant returned to Lebanon at an unknown date but within the six months;
(ii) Returned to the UK on 26 July 2018 with new entry clearance for another six months in the same category, valid until 18 January 2019. The Appellant returned to Lebanon at an unknown date but within the six months;
(iii) Returned to the UK on 5 August 2019 with new entry clearance for another six months in the same category, valid until 23 January 2020. The Appellant returned to Lebanon at an unknown date but within the six months;
(iv) Returned to the UK on 3 October 2020 with new entry clearance for another six months in the same category, valid until 1 March 2021. The Appellant returned to Lebanon at an unknown date but within the six months;
(v) Returned to the UK on new entry clearance granted on 7 June 2021 for another six months in the same category, valid until 7 December 2021.
15. The Appellant and the Sponsor returned to Lebanon in the summer of 2021. However, due to the difficulties and the political instability in Lebanon and the lack of adequate services, corroborated by the Sponsor’s GP’s letter in Lebanon and background evidence, see page 70 and page 75 HB, the Sponsor returned to the UK on 13 September 2021, accompanied by the Appellant. On 1 December 2021, the Appellant made an application for leave to remain on the basis of the Appellant’s private and family life with the Sponsor
16. The Appellant continues to be employed as a domestic worker and the Appellant’s duties include cleaning and cooking. The contract is for 25 hours per week with 20 days annual leave per year, accommodation, payment of the immigration fees by the Sponsor and the Appellant’s transport costs, §4.11 of ISW report
3. I heard oral evidence from the appellant and the sponsor. Both were asked questions by Mr Lee and Ms Cunha.
4. I heard submissions from both representatives. I summarise them as follows.
5. The respondent submits that the ties the appellant and her sponsor enjoy do not go beyond the normal emotional ties as required by the authorities. The relationship at its heart is one of employee and employer, and looking at the substance of the relationship nothing alters that. Whilst the evidence shows care between both, that is driven by the financial elements to their contractual relationship.
6. Notwithstanding what the sponsor say that her finances will pass to her sons upon her death and that they will look after the appellant, the reality is that the appellant is not seen as a daughter in that context, and that the appellant provides care but that is through the lens of the employee/employer relationship.
7. The appellant bears an obligation towards the sponsor, but that derives from the basis that the relationship was established through that contractual position. That she is willing to care for the sponsor outside of that arrangement does not alter the relationship being one primarily of a contractual and financial one. That is insufficient for the engagement of Article 8.
8. On terms of the proportionality of the decision, the sponsor can obtain other carers in the UK, and the sponsor could visit the appellant in the Philippines. There were no unjustifiably harsh consequences.
9. Mr Lee submitted that this case is one which can only be determined outside of the immigration rules. There is no in country route to which the appellant can rely on, and nor is there a route from overseas that she can return and utilise. This case therefore is one which whatever the eventual outcome involves consideration of this pre-existing relationship being severed.
10. Mr Lee emphasised that pivotal to this case was the finding of fact whether family life exists or not between the appellant and sponsor. He submitted that the nature of the relationship was akin to family life. Applying the relevant learning on the establishment of a family life to this case he submitted that family life without question exists.
11. The oral evidence before the Tribunal from both witnesses was that the relationship between them was one of love. This was reflected in the appellant’s evidence that if there was no money payable to her that she would continue giving the support and care that the sponsor requires. In that sense the relationship was far more akin to one of mother and adult daughter.
12. That relationship is overlayed with the deep and historic ties that have developed which commenced with the appellant commencing employment for the sponosr’s parents in 2000. She has become a central figure in their lives evolving to working for the sponsor until then caring for her when she became ill. The war in Lebanon then was a significant intervening event in all their lives leading to them moving to the UK.
13. The appellant and sponsor live together, the relationship plainly meets the substantive requirements of a finding that family life is established. This is not simply an employer/employee relationship, but is one built on love, care and trust in much the same way as an adult child and their parent have.
14. The sponsor is not going to go and live in the Philippines with the appellant, and they cannot go to Lebanon unless the sponsor goes there which she is not going to do. In essence the decision will shatter the life they have established.
15. Whilst practical care from the state would no doubt be forthcoming if the sponsor needed it, that is no answer to the appellant departing because that would be a different nature and degree of care, and would not replicate the relationship for the purposes of Article 8.
Decision and reasons
16. I am grateful to both representatives for their helpful submissions. I am satisfied that the appellant and sponsor enjoy a family life together and that the appellant’s removal would be disproportionate. My reasons for this are as follows.
17. The established authorities outline that for Article 8 to be engaged for adults is as outlined by the Court of Appeal in Kugathas v Secretary of State for the Home Department [2003] EWCA Civ 31. The well known test is that found in Arden LJ’s judgment at paragraph 25:
25. Because there is no presumption of family life, in my judgment a family life is not established between an adult child and his surviving parent or other siblings unless something more exists than normal emotional ties: see S v United Kingdom (1984) 40 DR 196 and Abdulaziz, Cabales and Balkandali v United Kingdom [1985] 7 EHRR 471. Such ties might exist if the appellant were dependent on his family or vice versa. It is not, however, essential that the members of the family should be in the same country. The Secretary of State accepts that that possibility may exist, although in my judgment it will probably be exceptional. Accordingly there is no absolute rule that there must be family life in the United Kingdom, as the Immigration Appeal Tribunal held.
18. However prior to this in his judgment, Sedley LJ set out:
‘But if dependency is read down as meaning support, in the personal sense, and if one adds, echoing the Strasbourg jurisprudence, real or committed or effective to the word support, then it represents in my view the irreducible minimum of what family life implies.’
19. The Court looked at the question again in Uddin v The Secretary of State for the Home Department [2020] EWCA Civ 338, in which in the context of a foster carer, the Court looked to the basis of the establishment of the relationship and found:
39. Absent a policy justification to the contrary that is appropriately promulgated and reasoned, I can see no basis in law for the purposes of Article 8 for a difference in principle between a relationship that is one that has arisen out of a foster care arrangement or from birth. The starting point for the analysis of a court or tribunal is accordingly not different. The tribunal's task is to assess whether the family life that existed in the run up to a child's attainment of majority continues to exist afterwards i.e. based upon the factual findings: what is the substance of the relationship. The suggestion that the formal characterisation of a foster family as a non-voluntary, commercial relationship should impact on or alter the court's inquiry and analysis of the existence of family life goes against authority to the effect that it is the substance and not the form of the relationship that grounds a family life.
40. Accordingly, the following principles can be described from the authorities:
i. The test for the establishment of Article 8 family life in the Kugathas sense is one of effective, real or committed support. There is no requirement to prove exceptional dependency.
ii. The test for family life within the foster care context is no different to that of birth families: the court or tribunal looks to the substance of the relationship and no significant determinative weight is to be given to the formal commerciality of a foster arrangement. It is simply a factual question to be considered, if relevant, alongside all others.
iii. The continued existence of family life after the attainment of majority is also a relevant question of fact. No negative inference should be drawn from the mere fact of the attainment of majority, while continuing cohabitation after adulthood will be suggestive of ongoing real, effective or committed support which is the hallmark of a family life
20. Turning to the evidence I have; I have carefully considered the oral evidence of both the appellant and sponsor. The establishment of the relationship is also of significance. The appellant was the carer for the sponsor’s parents in Lebanon, at that time the sponsor and appellant plainly did not enjoy a family life. The sponsor’s father died in 2009, her mother in 2013, however it was at the onset of her own health issues in 2017 when she had heart surgery that their relationship started to be forged. Since then that relationship could have remained as one purely of employer and employee, however the particular circumstances in this case, applying the authorities, demonstrate that the relationship is one far more than a commercial one, and is one where there are emotional ties going beyond the norm.
21. I also have the evidence in particular of an independent social worker report by Alison Tyrell, no criticism of this report was made by Ms Cunha, and I see no basis to consider it in the ordinary way.
22. The report outlines, having established that Mrs Mekkaoui requires ongoing care, in particular:
9.12. The interpersonal relationship that has developed over time between Raynelda and Mrs Zakie Mekkaoui also needs recognition. In my view this is a very important aspect of Mrs Zakie Mekkaoui’s arrangements as it promotes positive wellbeing.
9.13. It is difficult to see how an alternative carer would be able to replicate the relationship that exists between Raynelda and Mrs Zakie Mekkaoui, as there would not be the shared history and knowledge of each other, shared experiences of loss in relation to each other’s family members and there would be a lack of awareness of cultural nuances that are important in terms of meeting Mrs Zakie Mekkaoui’s needs.
9.14. The views of friends who know the two women as detailed in the testimonials included in this report, raise concerns about the impact of the two women being separated.
9.15. To conclude, whilst there continues to be mutual benefits to the arrangements, between Raynelda and Mrs Zakie Mekkaoui and acknowledging the relationship was initiated many years ago as an employer/employee arrangement, I have no doubt that the relationship has developed to an interpersonal level where each party has care and concern for the other, and both would be negatively impacted if their relationship was suddenly severed.
23. The above corroborates the oral and written evidence of the appellant and Mrs Makkaoui. In particular I place significant weight on the evidence I heard that the sponsor said that the appellant is a daughter to her, in particular because having had 2 boys, who both live abroad, the sponsor sees her relationship as being far more than just as her employed carer. She does far more than a carer would, she has to encourage the appellant to try and go out and socialise, she does not force her to stay back, or stay in. The sponsor was clear in her evidence that she has her own friends but that she has to tell the appellant she does not need her to stay.
24. The sponsor’s evidence is that she considered the bond is so great between them that she explored the possibility of adopting the appellant, however this was not possible due to her age. This however is supportive evidence that the bond the sponsor has with the appellant is not simply that of an employer.
25. The appellant speaks of the warmth and developing relationship she has enjoyed with the sponsor and her entire family since first working for her parents in 2000. In her statement she outlines that “in her heart” the sponsor is her mother, and that the sponsor’s late mother treated her like her own child as well. She explains how she has never been treated by the sponsor’s family as an employee and that over the last 14 years the sponsor has been a mother figure to her in every sense.
26. This is supportive evidence not just that this relationship is far greater than the employer/employee one, but also that the support and love they have for each other is reflective of an organic family one. It is significant that both the appellant and sponsor view each other as mother and daughter respectively. This is a unique situation in this case as whilst someone being cared for may view the carer as a surrogate child, the fact that the appellant sees her sponsor as like a mother is significant. Their respective evidence on this is genuine and sincerely held. I have considered whether it was contrived for the purpose of the appeal but reject any suggestion of that given the volume of evidence I have going towards their relationship. It is further noteworthy that Ms Cunha did not suggest any such feelings were contrived, instead focussing on the commercial nature of their relationship.
27. Turning to that aspect, whilst I accept that the appellant’s relationship with the sponsor’s parents was a commercial one, and that her relationship with the sponsor started as one, I reject the suggestion that that prevents the appellant and sponsor from having a family life together. To do so would fall foul of the authorities I have set out above. Further, it would be to ignore the evidence before me of a dependency going beyond the normal emotional ties. That the relationship commenced as one of a carer, it is plain that that has developed and changed over the last 7-8 years, and that such is the inter-dependency from both of them that the is plainly a family life.
28. In my judgment it is that inter and co dependence on each other than lifts this relationship which commenced as a commercial one, into one where from both parties a family life is established. It would be quite different if one party consider the other a family member, but the other did not. That could very well lead to a conclusion that such a relationship has not developed any further than the commercial one, however in this case on the evidence that is not the case.
29. I also place weight on the supporting evidence from those who know both the appellant and sponsor. I am careful not to place too much weight on the statements as I did not hear from the authors, but the supporting statements corroborate and support the consistent and credible evidence of both witnesses.
30. I have statements from the sponsors son, Khodor, who lives in Dubai. He explains that:
Raynelda's connection with our family is far beyond a mere job; it's a deep-rooted, family bond that has developed over the span of 23 years. Her role in my mother's life transcends caregiving; she embodies a daughter-like figure in my mother's eyes. The love, care, and attachment she exhibits go far beyond professional obligations.
31. The sponsor’s other son Bilal, who lives in New York, speaks in similar terms, in particular that the bond the appellant and his mother “transcends that of an employee and employer; it’s akin to a mother-daughter relationship”.
32. This evidence is supported further by the statements from Mr Paramvir Sethi, a family friend “I recognised a relationship that surpassed the bounds of traditional employment. Reynalda wasn’t just a caregiver; she was regarded as a daughter [by the sponsor] and an integral part of their family unit…the bond…is beyond essential. ”. His wife also speaks to the “familial bond that supports and nurtures both [the appellant and sponsor] on various levels…this is more than just a working relationship; it’s a familial connection that is pivotal for their mutual support and happiness”.
33. Further statements are given from Mrs Zarintaj Ellam, a long term friend of the sponsor of over 25 years, who speaks to the relationship between the appellant and sponsor as being one which “goes beyond professional duties; it is one based on genuine care, familial love, and indispensable support. I firmly believe that [the sponsor’s] health would deteriorate rapidly without [the appellant’s] constant care and companionship”. Mrs Abir Tahan, another friend of the sponsor for over 20 years, who having seen the family throughout that time both in Lebanon and the UK, speaks to the relationship between the appellant and sponsor as “akin to that of a mother and daughter, forged over 23 years, [the sponsor] often refers to [the appellant] as her adopted daughter, underscoring the familial ties they share”.
34. Mrs Madiha Habib, a friend who speaks of a deepening of a relationship with the sponsor after the sponsor’s husband died in 2010 and who speaks to their own relationship as a strong one since then. She speaks of witnessing the relationship between the appellant and sponsor as being “not just that of an employer and employee but that of a mother and daughter. Their connection, forged over 23 years, goes beyond mere caregiving; it is rooted in familial love and mutual dependence”. The statement goes on to explain how the appellant and sponsor view each other as mother and daughter.
35. It is not just friends of the sponsor who have provided statements speaking to the relationship they have observed. I have statements from Mahmoud Mniezel and Myrna Espinoza, friends of the appellant, the latter having met her on the bus in London in 2017. They speak of regularly meeting the appellant, and observing her relationship with the sponsor. They say “it is evident that [the appellant’s] commitment went beyond mere employment, she embraced [the sponsor] as part of her family” and “severing their companionship, especially considering their enduring relationship as a family for so many years, would do immeasurable harm rather than any good. They share a bond that transcends mere employment; theirs is a connection forged through love, care, and years of shared experiences.”
36. Ms Espinoza adds “[t]heir 23-year-long relationship speaks volumes about the genuine love and care they hold for each other. Raynelda's dedication to Mrs. Mekkaoui, reminiscent of a daughter's love for her mother, is unmistakable…Having visited them, I've witnessed firsthand the preciousness of their bond in their interactions and care for each other.”.
37. Given the above I find that the relationship, ties and dependency they enjoy with each other go far beyond the normal emotional ties of adult relatives. I find that the relationship is one akin to mother and daughter, and that the sponsor is particularly dependent on the appellant for her care, but also that the dependency is interdependent, they rely on each other for the emotional support and ties. In my judgment the evidence overwhelmingly supports the submission that the relationship engages Article 8(1) and they enjoy a family life together.
38. The bulk of Ms Cunha’s submissions were based on family life not being established, there was little by way of arguments going to separation being proportionate. I take as the starting point the mandatory statutory provisions that I must apply through s117B. Whilst the financial independence of the appellant and her ability to speak English are plain, they are at best no more than neutral in the weight to be given to them.
39. I accept there is a public interest in the maintenance of effective immigration control, and that that is a weighty consideration. This is further emphasised by the fact that there is not an immigration rule that the appellant falls within. This is not analogous to the adult dependent relative situation because the appellant has no care needs herself, and is not dependent on the sponsor for her ongoing care.
40. The family life in this case is not one which attracts the little weight provisions of s117B(4), but insofar as the appellant’s private life, then I accept that the starting point is that little weight be given to it as it was established at a time when her position in the UK was precarious.
41. The above however in my judgment is outweighed by the singularly inter and co-dependency the appellant and sponsor have on each other. That cannot be replicated either by both of them returning to Lebanon, the appellant is not a Lebanese national, and it is uncertain whether she would be admitted there. Further the sponsor has no intention of returning there following the societal disruption there since 2020 and which led to them coming to the UK in the first place. She explains in her statement how since Israel last bombed Beirut in 2024 has severely damaged her residence there and that some of her doctors had fled the country. She is entirely dependent now on the care she receives in the UK.
42. The sponsor’s ongoing health needs are another barrier to her going to live in Lebanon or indeed in the Philippines with the appellant. She suffers from multiple serious and critical health conditions including, heart disease, severe cervical spine pain which she is due to have surgery on soon. She suffers from migraines which are described as “chronic worsening” and breathing difficulties as well. Her wrist is broken and she has screws in it. In her oral evidence she explained how the pressure of the pain she had reached the highest point since August 2024. I was provided with updated medical evidence which I do not set out here, but take it into account and place weight on it insofar as the current medical circumstances of the sponsor.
43. There is no basis to think that she would be admitted to live in the Philippines and indeed I find that it would be inherently disproportionate to expect her to move there, a country where she has never lived. She would be leaving the established life she has in the UK, and has developed here over her life.
44. Turning to the appellant, she not only enjoys the family life she has with the sponsor in the UK, but has her own private life here. That is tempered with the starting point that little weight should be given to it, however I do take into account that she has not lived in the Philippines for 25 years, would be returning there and starting again from scratch. She has an understanding of how life is carried on there, however it is a relevant consideration that the length of time out of the country will mean any integration on return will be more challenging. This is not all that weighty a consideration but nevertheless is one that some weight can be given to.
45. Taking everything into account I consider that the separation of the appellant from the sponsor will have a significant impact on them both. It would be severing a relationship of inter and co dependence in the same way as separating an adult daughter and mother in the same circumstances. I consider that would lead to a disproportionate interference on both their Article 8 family life and that as such the appellant’s prospective removal would breach their Article 8 rights.
Notice of Decision
The appeal is allowed.

Judge T.S. Wilding

Judge of the Upper Tribunal
Immigration and Asylum Chamber

Date: 14th March 2025
Appendix

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2024-002691

First-tier Tribunal No: HU/53206/2023

THE IMMIGRATION ACTS

Decision & Reasons Issued:

…………………………………

Before

DEPUTY UPPER TRIBUNAL JUDGE WILDING

Between

RAYNELDA CAREON
(ANONYMITY ORDER NOT MADE)
Appellant
and

SECRETARY OF STATE FOR THE
HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr G Lee, Counsel, instructed by Clifton Law Solicitors
For the Respondent: Mr T Melvin, Senior Home Office Presenting Officer

Heard at Field House on 12 September 2024

DECISION AND REASONS
1. The appellant appeals with permission against the decision of First-tier Tribunal Judge Abdar (‘the Judge’) who dismissed her appeal against the respondent’s decision to refuse her human rights claim.

Background
2. The appellant is a Filipino national, who last entered the UK on 13 September 2021 with entry clearance as a domestic worker. She has worked for the parents of her sponsor, Mrs Makkaoui, as a domestic worker since December 2000. She worked for her in Beirut to begin with. The sponsor’s father died in 2009, her own husband in 2010, and her mother in 2013. At this point the appellant started working for the sponsor.
3. The Judge then set out the following background facts, which are not contested by the respondent:
14. In 2017, the Sponsor became very ill and returned to the UK for medical treatment; the Sponsor is a British citizen. The Appellant accompanied the Sponsor, under a contract of employment as a domestic worker, and made the following visits to the UK:
(i) On 13 September 2017 with entry clearance for six months. The Appellant returned to Lebanon at an unknown date but within the six months;
(ii) Returned to the UK on 26 July 2018 with new entry clearance for another six months in the same category, valid until 18 January 2019. The Appellant returned to Lebanon at an unknown date but within the six months;
(iii) Returned to the UK on 5 August 2019 with new entry clearance for another six months in the same category, valid until 23 January 2020. The Appellant returned to Lebanon at an unknown date but within the six months;
(iv) Returned to the UK on 3 October 2020 with new entry clearance for another six months in the same category, valid until 1 March 2021. The Appellant returned to Lebanon at an unknown date but within the six months;
(v) Returned to the UK on new entry clearance granted on 7 June 2021 for another six months in the same category, valid until 7 December 2021.
15. The Appellant and the Sponsor returned to Lebanon in the summer of 2021. However, due to the difficulties and the political instability in Lebanon and the lack of adequate services, corroborated by the Sponsor’s GP’s letter in Lebanon and background evidence, see page 70 and page 75 HB, the Sponsor returned to the UK on 13 September 2021, accompanied by the Appellant. On 1 December 2021, the Appellant made an application for leave to remain on the basis of the Appellant’s private and family life with the Sponsor
16. The Appellant continues to be employed as a domestic worker and the Appellant’s duties include cleaning and cooking. The contract is for 25 hours per week with 20 days annual leave per year, accommodation, payment of the immigration fees by the Sponsor and the Appellant’s transport costs, §4.11 of ISW report
4. The Judge dismissed the appeal on the basis that:
a. There would not be very significant obstacles to integration on return to Philippines.
b. Considering the matter outside the immigration rules the Judge found that family life was not engaged between the appellant and the sponsor; in the alternative he found that her removal would be proportionate.
5. There was no challenge to the finding within the immigration rules. However the appellant appeals the decision dismissing the appeal outside the immigration rules. In relation to this element the Judge said as follows:
31. On a holistic view and on balance, I find the Appellant to be a conscientious worker and selfless in her devotion to the Sponsor’s care; treating the Sponsor as more than a mere employer. However, I am not satisfied that the services under a contract of employment reaches the modest threshold of family life akin to a mother and daughter between the Appellant and the Sponsor.
32. I also do not find the Appellant’s sentiment towards the Sponsor to be replicated by the Sponsor; the Sponsor’s priority is receiving the Appellant’s care to meet her personal needs. I agree with the ISW’s conclusion and I find that the relationship between the Appellant and the Sponsor remains an employer and employee relationship with the benefit of familiarity and care developed over time.
33. However, should I be wrong and family life is engaged, particularly on the fact of the Appellant’s devotion to the Sponsor’s well-being, I proceed to consider Lord Bingham’s fifth question, proportionality, on both private and family life grounds and I do so by keeping the ‘balance sheet’ exercise in mind.
34. There are a number of factors against the Appellant that I must and do give significant weight to; starting with effective immigration control, which is carried out via the Rules. The Appellant does not meet the requirements of the Rules and it is trite law that I must give that fact significant weight in assessing proportionality. The Appellant’s private life has also been established whilst her status in the UK has been precarious; the Appellant entered the UK with entry clearance as a domestic worker, which ended on 7 December 2021.
35. I find that the Appellant does have the necessary English language skills to integrate in the UK and the Appellant is financially independent of the state. However, I do not find these considerations to be of any significant weight. I do also take into consideration the Appellant’s age and the difficulties the Appellant may face on return to the Philippines, albeit not very significant obstacles.
36. I also take into consideration the Sponsor’s rights and the significant benefits the Sponsor would derive from the Appellant’s continued services and care. However, that care can be found elsewhere including being provided by the state, see §9.4 to §9.6 ISW report, albeit not to the same level.
37. The Appellant and the Sponsor can also maintain their family life via modern means of communication, as the Sponsor does with her sons in Dubai and America. Additionally, the Appellant and the Sponsor can also visit other.
38. In consideration of all the factors, in my judgment, the removal of the Appellant will not result in unjustifiably harsh consequences for the Appellant or the Sponsor and, on a holistic view and having taken all of the factors and the respective weight to be attached to each into consideration, on balance, I find that the decision under appeal is reasonable and proportionate in all the circumstances. Accordingly, the appeal falls to be dismissed on Article 8 ECHR grounds.
6. The appellant appeals, permission was initially refused by the First-tier Tribunal, however the appellant renewed her application, and Deputy Upper Tribunal Judge Haria granted permission to appeal on ground 1 of the grounds of appeal only.
7. Ground 1, settled by Mr Lee, is that the Judge erred in finding that the relationship between the appellant and sponsor does not amount to family life. The Judge erred by focusing on the form of the relationship, i.e. an employer/employee one, rather than the substance of the relationship.
8. Mr Lee relied on Kugathas [2003] EWCA Civ 31, Ghising v SSHD [2012] UKUT 160 (IAC) and Uddin v SSHD [2020] EWCA Civ 338,[2020] 1 WLR to advance the proposition that the Judge failed to focus on the real life relationship between the two, and had become sidetracked by the form of the relationship.
9. Secondly, Mr Lee submitted that the Judge failed to ask himself whether the support given by the appellant to the sponsor was “real, or committed, or effective”.
The hearing
10. I heard submissions from Mr Lee, who relied on his grounds, and rule 25 response to advance his case. He addressed the materiality of the decision by submitting that it could not be said that had the Judge not erred as advanced that it would have necessarily lead to the appeal being dismissed.
11. He submitted that the Judge’s purported ‘alternative’ findings were not a full assessment in the alternative, the Judge does not factor in the strength and dependent nature of the relationship in undertaking the proportionality assessment. It therefore was an inadequate alternative finding, and the Judge failed to make any findings of removing the appellant from the family relationship, and life, she has developed with the sponsor.
12. Mr Melvin relied on the rule 24 response filed from the respondent and submitted that the Judge’s decision could not be said to be irrational, the ISW report relied on by the appellant even confirmed the relationship was one of employee and employer. The Judge was entitled to reach the conclusion that he did and he did not err in law.
13. In response Mr Lee submitted that at the heart of this case is the relationship between the appellant and her sponsor, in order to lawfully dispose of the case the Judge had to consider he case through the lens of the appellant. It is her case that she is attached to the sponsor, Mr Lee submitted that whilst it is “an unusual paradigm” that she will feel the severing of the relationship irrespective that she is also a care giver. The error the Judge fell into is by singularly considering the matter from the context of providing a service, which fails to factor the appellant’s relationship with the sponsor into the analysis.
Decision and reasons
14. I have carefully considered both written documents submitted by the two parties, as well as the oral submissions received, I have further reminded myself of what was said at the hearing in my record of proceedings.
15. I find that Mr Lee’s ground is well founded and that the Judge erred as advanced. The simple reason for this is that the Judge focussed entirely on the basis upon which the relationship was initiated, i.e. the ‘form’ of the relationship. There is no consideration of the substance to that relationship. In the same way as the Court of Appeal looked at in Uddin in the context of foster carers:
39. Absent a policy justification to the contrary that is appropriately promulgated and reasoned, I can see no basis in law for the purposes of Article 8 for a difference in principle between a relationship that is one that has arisen out of a foster care arrangement or from birth. The starting point for the analysis of a court or tribunal is accordingly not different. The tribunal's task is to assess whether the family life that existed in the run up to a child's attainment of majority continues to exist afterwards i.e. based upon the factual findings: what is the substance of the relationship. The suggestion that the formal characterisation of a foster family as a non-voluntary, commercial relationship should impact on or alter the court's inquiry and analysis of the existence of family life goes against authority to the effect that it is the substance and not the form of the relationship that grounds a family life.
40. Accordingly, the following principles can be described from the authorities:
i. The test for the establishment of Article 8 family life in the Kugathas sense is one of effective, real or committed support. There is no requirement to prove exceptional dependency.
ii. The test for family life within the foster care context is no different to that of birth families: the court or tribunal looks to the substance of the relationship and no significant determinative weight is to be given to the formal commerciality of a foster arrangement. It is simply a factual question to be considered, if relevant, alongside all others.
iii. The continued existence of family life after the attainment of majority is also a relevant question of fact. No negative inference should be drawn from the mere fact of the attainment of majority, while continuing cohabitation after adulthood will be suggestive of ongoing real, effective or committed support which is the hallmark of a family life.
16. In the present case the issue is not one of foster carers but is one where the relationship between the appellant and sponsor developed, to being with, on the basis of the appellant’s employment as the carer of the sponsor’s parents. That relationship has changed, and developed, over time, however the evidence relied on by the appellant before the Judge was that this relationship was of a special nature that it amounted to family life in the Kugathas sense. There is no rational basis to consider that, in principle, the relationship as here is one which is capable of showing a family life applying the Kugathas test.
17. The Judge had to determine this point, and in finding that the relationship amounted to nothing more than a contractual one of service failed to reconcile the appellant’s evidence. It did not have to follow that it did, on the evidence, show that family life was engaged, however the Judge could not ignore the evidence of the appellant as to the relationship she has developed with the sponsor just because of the form in which it had developed. I further note that the sponsor’s evidence before the FTT in her statement was that she “always treat [the appellant] as my daughter”, the Judge did not consider this in his finding that Article 8 was not engaged.
18. The error is plainly material because it could have made a difference to the outcome. I agree with Mr Lee’s submission that the alternative conclusions are in reality not findings in the alternative because the Judge again does not take into consideration the family life element to the case, and does not consider the separation of the appellant from the sponsor in a family life sense.
19. The Judge’s decision is set aside as a result. The decision will need to be remade, there is no basis to remit the matter to the First-tier Tribunal and so the matter will remain in the UT.
20. Case management directions:
a. The case is to be remade in the Upper Tribunal.
b. If the appellant wishes to give oral evidence, an updated witness statement will need to be filed and served no later than 14 days before the next hearing.
c. Similarly if there is to be any updated evidence it must also be filed no later than 14 days before the next hearing.
d. If an interpreter is required, the appellant’s representatives are to confirm no later than 14 days before the next hearing.
e. The Tribunal would be assisted with skeleton arguments, if either party wishes to provide one they must be filed no later than 5 days before the next hearing.

Notice of Decision
The decision of the First-tier Tribunal fell into legal error. The decision of the First-tier Tribunal is set aside.
The appeal is to be reheard in the Upper Tribunal

Judge T.S. Wilding

Deputy Judge of the Upper Tribunal
Immigration and Asylum Chamber

Date: 6th December 2024