Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2024-003659

First-tier Tribunal No: HU/55838/2023

THE IMMIGRATION ACTS

Decision & Reasons Issued:

12th May 2025

Before

UPPER TRIBUNAL JUDGE BULPITT

Between

MUKTI BAHADUR PUN
(NO ANONYMITY ORDER MADE)
Appellant
and

ENTRY CLEARANCE OFFICER
Respondent

Representation:
For the Appellant: Ms K McCarthy – Counsel instructed by Everest Law Solicitors
For the Respondent: Ms Tariq – Senior Home Office Presenting Officer

Heard at Field House on 7 May 2025

DECISION AND REASONS

1. The appellant, a 44-year-old citizen of Nepal sought entry clearance to settle in the United Kingdom which is where his mother and his father, who is a retired veteran of the British Army Brigade of Gurkhas, have been living since May 2013. His application involved a human rights claim on the basis of the family life engaging Article 8 of the Convention on Human Rights that the appellant says he shares with his mother and father. The respondent refused to grant the appellant entry clearance, finding that the appellant does not have a family life with his parents that engages the Convention and that even if he did, interference with that family life would be proportionate.

2. The appellant therefore appealed to the First-tier Tribunal against the refusal of his human rights claim. His appeal was dismissed by First-tier Tribunal Judge Beg in “decision 1”. In “decision 2” which is dated 13 March 2025 and is annexed to this decision, I found the decision of Judge Beg to contain an error of law such that it had to be set it aside and the appellant’s appeal be considered afresh. In this decision (“decision 3”) I remake the decision concerning the appellant’s appeal against the respondent’s refusal of his human rights claim following a hearing which was conducted on 7 May 2025. At that hearing I granted the appellant’s unopposed application to adduce further evidence that had not been before Judge Beg and I heard oral evidence from the appellant’s father, mother and sister and helpful submissions from Ms Tariq and Ms McCarthy.

The Issues

3. As had been correctly identified by Judge Beg, and as was agreed by the representatives in the hearing before me, this appeal raises two disputed issues:

i. Whether the appellant enjoys a family life with his mother and father that engages Article 8(1) of the Convention on Human Rights? and if so

ii. Whether the interference with that family life that results from the respondent’s decision to refuse the appellant entry clearance is proportionate and therefore justified applying Article 8(2) of the Convention?

The Legal Framework

Issue i: Article 8(1) of the Convention

4. In Gurung and others [2013] EWCA Civ 8 the Master of the Rolls identified at [45] that “Ultimately, the question whether an individual enjoys family life is one of fact and depends on a careful consideration of all the relevant facts of the particular case.”

5. The Master of the Rolls went on at [46] of Gurung and others to endorse the “useful review of some of the jurisprudence and the correct approach to be adopted” that was provided at [50] – [62] of the Upper Tribunal’s decision in Ghising (family life – adults – Gurkha policy) [2012] UKUT 160 (IAC) when considering the question of when an adult child ceases to enjoy family life with his parents for the purposes of Article 8?

6. In those paragraphs of Ghising (family life – adults – Gurkha policy) the Upper Tribunal referred to the judgments in Kugathas v Secretary of State for the Home Department [2003] EWCA Civ 31:

53. In Kugathas, at [14], Sedley LJ cited with approval the Commission’s observation in S v United Kingdom (1984) 40 DR 196:

“Generally the protection of family life under Article 8 involves cohabiting dependents, such as parents and their dependent, minor children. Whether it extends to other relationships depends on the circumstances of the particular case. Relationships between adults, a mother and her 33 year old son in the present case, would not necessarily acquire the protection of Article 8 of the Convention without evidence of further elements of dependency, involving more than the normal emotional ties.”

54. Sedley LJ accepted the submission that ‘dependency’ was not limited to economic dependency, at [17]. He added:

“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.”

55. Arden LJ said , at [24] – [25]:

“24. There is no presumption that a person has a family life, even with the members of a person’s immediate family. The court has to scrutinise the relevant factors. Such factors include identifying who are the near relatives of the appellant, the nature of the links between them and the appellant, the age of the appellant, where and with whom he has resided in the past, and the forms of contact he has maintained with the other members of the family with whom he claims to have a family life.

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... Such tie might exist if the appellant were dependent on his family or vice versa.”

7. The Upper Tribunal then accepted at [56] the submission that those judgments in Kugathas had been interpreted too restrictively in the past, and needed to be read in the light of subsequent decisions of the European Court of Human Rights (ECtHR).

8. At [57] it was recognised that those decisions identified that family life may continue between parent and child even after the child has attained his majority. At [60] it was acknowledged that decisions of the ECtHR indicate that family life between adult children and parents will readily be found, without evidence of exceptional dependence. At [61] referring to the decision of the ECtHR in AA v United Kingdom (Application no 8000/08 it is said that “a significant factor will be whether or not the adult child has founded a family of his own. If he is still single and living with his parents, he is likely to enjoy family life with them.”

9. Concluding its review of the jurisprudence the Upper Tribunal said at [62] “the different outcomes in cases with superficially similar features emphasises to us that the issue under Article 8(1) is highly fact-sensitive” a statement that was specifically endorsed by the Court of Appeal in Gurung and others.

10. The same question of when does an adult child cease to enjoy family life with his parents for the purposes of Article 8? Was considered in a different context by Sir Stanley Burnton in Singh & Anor v Secretary of State for the Home Department [2015] EWCA Civ 630. He also referred to Kugathas noting that the facts in that case were “extreme” before reviewing a number of decisions from the ECtHR and Court of Appeal and concluding at [24]:

”24. I do not think that the judgments to which I have referred lead to any difficulty in determining the correct approach to Article 8 in cases involving adult children. In the case of adults, in the context of immigration control, there is no legal or factual presumption as to the existence or absence of family life for the purposes of Article 8. I point out that the approach of the European Commission for Human Rights cited approvingly in Kugathas did not include any requirement of exceptionality. It all depends on the facts. The love and affection between an adult and his parents or siblings will not of itself justify a finding of a family life. There has to be something more. A young adult living with his parents or siblings will normally have a family life to be respected under Article 8 . A child enjoying a family life with his parents does not suddenly cease to have a family life at midnight as he turns 18 years of age. On the other hand, a young adult living independently of his parents may well not have a family life for the purposes of Article 8 .”

11. This passage of Sir Stanley Burnton’s judgment in Singh & Anor was quoted by Lindblom LJ in Jitendra Rai v Entry Clearance Officer [2017] EWCA Civ 320 a case, which like this one, involved an application by an adult child of a retired Gurkha soldier to join his parent in the United Kingdom.

12. Bringing this together it is clear that the question of whether an adult continues to enjoy a family life with his parents is fact specific and is answered by a careful consideration of all the relevant facts in each specific case. There is no presumption that family life ends when the child reaches majority, neither is there any requirement of exceptionality, though something more than love and affection between an adult and his parents is required. A significant factor will be whether the adult child has founded a family of his own though each case will depend on its facts. The effect of this is that there will be different outcomes in cases with superficially similar features, including cases involving the children of retired Gurkha soldiers.

Issue ii – Article 8(2) proportionality

13. In Ghising and others (Ghurkhas/BOCs: historic wrong; weight) [2013] UKUT 00567 (IAC) the Upper Tribunal gave guidance on the weight to be given in the proportionality evaluation required by Article 8(2) of the Convention to the historic injustice that was suffered by retired Gurkha soldiers who, unlike soldiers from other Commonwealth countries who served in the British army, were denied the right to settle in the United Kingdom following their service. Reflecting on the decision of the Court of Appeal in Gurung and others the Tribunal gave the following guidance which is recorded in the headnote to the decision:

(4) Accordingly, where it is found that Article 8 is engaged and, but for the historic wrong, the Appellant would have been settled in the UK long ago, this will ordinarily determine the outcome of the Article 8 proportionality assessment in an Appellant’s favour, where the matters relied on by the Secretary of State/ entry clearance officer consist solely of the public interest in maintaining a firm immigration policy.

(5) It can therefore be seen that Appellants in Gurkha (and BOC) cases will not necessarily succeed, even though (i) their family life engages Article 8(1); and (ii) the evidence shows they would have come to the United Kingdom with their father, but for the injustice that prevented the latter from settling here earlier. If the Respondent can point to matters over and above the public interest in maintaining a firm immigration policy, which argue in favour of removal or the refusal of leave to enter, these matters must be given appropriate weight in the balance in the Respondent’s favour. Thus, a bad immigration history and/or criminal behaviour may still be sufficient to outweigh the powerful factors bearing on the Appellant’s side of the balance.

Analysis of the evidence

14. I have considered all of the appellant’s 132 page bundle of documentary evidence and all of the respondent’s 92 page bundle of documentary evidence. I have also considered the oral evidence given by the appellant’s father, mother and sister. I have assessed all of this evidence in the round and in the light of the written and oral submissions that have been made.

15. There is no dispute that the appellant is the youngest son of Mr Amar Bahadur Pun and of Mrs Dilsara Pun. Mr and Mrs Pun had five children in total, three of whom survive today: the appellant, his older brother Chhabilal and his older sister Puspa. Tragically Mr and Mrs Pun’s other two daughters Ghanmay and Chandralakshi died in 2010 and 1987 respectively.

16. The appellant’s father served in the British Army Brigade of Gurkhas from 1 December 1961 until he left with an exemplary record on 9 November 1976. His unchallenged evidence is that had he been permitted to do so he would have settled in the United Kingdom when he left the Brigade of Gurkhas and that Chhabilal and the appellant, who were born in 1977 and 1980 respectively, would have been born in the United Kingdom. As it was, the undisputed evidence is that the appellant was born and brought up with the rest of the family in the Myagdi district of Nepal where he was educated up to grade ten.

17. In 2001, when he was 21 years old, the appellant married Lali Pun in a marriage arranged by the two families. He has two children with his wife: Kamal who was born on 27 January 2002 and Hajindra who was born on 13 May 2005. The appellant’s evidence is that while his sisters and brother left the family home when they got married, he, his wife and his children continued to live in the family home alongside his parents.

18. In 2013 the appellant’s parents moved to the United Kingdom having applied for and been granted settlement, leaving the appellant living in the family home along with his wife and two children. In 2015 the appellant’s parents were joined in the United Kingdom by their daughter Puspa who was granted settlement along with her husband when he retired from the British Gurkha army. Puspa is currently living with her parents in Reading.

19. These facts were not challenged in any significant way by the respondent and I accept that they are likely to be true. There is however a conflict in the evidence about the appellant’s marriage to Lali Pun and the appellant’s living circumstances after his parents moved to the United Kingdom.

20. The appellant says in his witness statements that his marriage became combative and challenging after Hajindra’s birth in 2005, that his wife would drink homemade alcohol daily and that she was abusive towards him and his parents while they were still in Nepal. He says that after an earthquake in 2015 damaged the family home, his wife moved to live permanently with her parents, and that he was informed six months later she had formed a relationship with another man. The appellant says that he and his sons continued to live in the family home where his parents would visit from the United Kingdom every two years. He explains that despite their separation he did not file for divorce until 2023 when he was advised to do so by friends. In his statement dated 29 October 2023 the appellant says that his sons are studying in Kathmandu. In his more recent statement dated 22 April 2025 the appellant says that his older son continues to study and that his younger son has passed his grade XII but gives no indication about where they live.

21. The appellant’s father says in his witness statement that he started to observe very demanding behaviours from the appellant’s wife after their marriage but that the behaviour became much worse after the birth of her children. He says that she would leave the house to stay with her parents for long periods of time, would mock their lifestyle and be abusive and unreasonable. The appellant’s father continues in his statement to say that after he moved to the United Kingdom, the appellant informed him in 2015 that the appellant’s wife had said she will not return to the family home and that everyone knew then, that the relationship was over. He states that following separation in 2015 the appellant’s children lived with his wife in her parents’ home and not with the appellant, as the appellant says in his statement. The appellant’s father says that the appellant became withdrawn and they worried about his mental state at this time. He states that he advised the appellant to obtain a divorce. In his more recent statement signed two weeks before the hearing, the sponsor summarises that the appellant was undergoing domestic problems with his wife between 2015 and 2018 and further says that the appellant’s sons are in full time education in Pokhara not in Kathmandu as the appellant had described.

22. As well as being internally inconsistent, these accounts in the witness statements are markedly different from, and impossible to reconcile with, the oral evidence given in the hearing before me. When the appellant’s father was asked in cross examination who the appellant lived with, he said that until 2023 the appellant was living with his wife and sons but that since 2023 he has been living alone. He added that the appellant’s sons are studying in Pokhara, that his wife is living in her parental home and that he does not think the appellant is still in contact with his wife and sons. When I later sought clarification from him about this, the appellant’s father confirmed that the appellant had continued to live with his wife until 2023 and he stated that he had stayed with the appellant and his wife during a visit to Nepal in 2022, answering that he believed that the relationship was OK then, though he was not quite sure about it. The appellant’s father then explained that he did not know why the appellant and his wife got divorced, that he had not talked about that with the appellant, that the appellant has not disclosed detail about his wife or the relationship he has with her, and that these are not questions he asks his son.

23. In her oral evidence the appellant’s mother similarly suggested that the appellant started to live alone two years ago (i.e. 2023) and said she thought it has been two years since she last met the appellants wife. The appellant’s mother went on to say that the appellant’s son has been living with the appellant following the completion of his studies, a fact which is not mentioned in any of the written statements, and that he helps the appellant while they are living together. This was confirmed by the appellant’s sister who said that the appellant’s son has been living with the appellant for the last six months.

24. Assessing this evidence holistically, I conclude that I can have little confidence that the written witness statements accurately reflect the truth about the appellant’s situation. The evidence in those witness statements about the appellant’s relationship with his wife and the divorce in 2023 is irreconcilable with the oral evidence of the appellant’s parents. For example, contrary to the account in his statement about being told by the appellant that the relationship was over in 2015, the appellant’s father’s oral evidence was that the appellant has never disclosed information to him about the relationship he has with his wife and that he has never asked the appellant why or when they divorced, saying “I don’t ask him these questions”. Further and in contrast to the accounts in the written statements that the relationship between the appellant and his wife was over in 2015, that the appellant’s wife left the house at that time and even that the appellant’s wife was in a relationship with another man, the evidence of the appellant’s father was that he stayed with the appellant and his wife in 2022 and that the relationship with the appellant’s wife was at that time OK, while the evidence of the appellant’s mother was that she last saw the appellant’s wife two years ago.

25. In her submissions Ms McCarthy very ably sought to explain these contradictions with the suggestion that it is not unusual for an adult not to share awkward or embarrassing details about the breakdown of their marriage with their parent. I acknowledge that this is true, indeed it is a clear indication of why an adult child tends to be independent from his parents. However I do not think this contradiction in the evidence can be explained by an awkwardness in the appellant discussing the breakdown of his marriage with his parents. The evidence of the appellant’s father that he does not ask the appellant about his relationship with his wife or his relationship with his sons was completely at odds with the florid detail in the witness statements about an abusive relationship while the family lived together in Nepal, daily phone calls after the appellant’s parents came to the United Kingdom and particularly the assertions in the appellant’s father’s witness statement that he would often speak to the appellant and his wife and advise them to work on their relationship and that he and the appellant “do not make any decisions without consulting each other”.

26. Assessing these contradictions, I am driven to the conclusion that whilst the appellant’s father and his wife generally sought to give honest and accurate evidence when appearing before me, I cannot place same reliance on the witness statements that have been submitted. It is clear from the oral evidence that the statements do not accurately reflect the appellant’s situation and his relationship with his wife or his relationship with his parents. Instead in my judgment the statements seek to advance a set of facts that are considered most likely to lead to a successful application but which are not accurate. In support of this conclusion, I note that the telephone evidence that has been adduced, whilst it demonstrates mostly short audio and video calls or missed calls between the appellant and his parents (assuming that the screenshots are of calls between the appellant and his parents which is something that is not evidenced) is entirely inconsistent with the claim in the witness statements about the relationship they share including near daily phone calls.

27. The one area where the appellant’s father did not appear to be giving accurate and transparent oral evidence was in his failure to acknowledge that the appellant is living with his son and insistence instead that the appellant is living alone. This wilful failure, that was contradicted by his family members was in my judgment a further demonstration of the ultimate desire to advance a version of facts that will best support the appellant’s application to come to the United Kingdom rather than to accurately reflect the appellant’s true circumstances.

28. In this context I also find that the claim in the witness statements that the appellant has not worked since his parents left Nepal other than to farm his land to grow crops that are barely enough for him to eat, is likely to be an exaggeration of the truth. The appellant’s family have conspicuously demonstrated an ambition, interest in education and commitment to work and advancement that is inconsistent with this assertion. When I asked the appellant’s father about this and the apparent contradiction between the appellant’s circumstances and those of the rest of the family he said it was something he could not explain. I acknowledge that the material submitted to the respondent included a certificate from the Malika Municipality certifying that the appellant is unemployed, however without any further clarification of how that information is confirmed I consider this to be a document to which I can attach little weight, particularly when the witness statements suggest that things like marriages are not necessarily registered in the village. I also note the distinct absence of documentary evidence in support of assertions made about the appellant’s ability to work such as the suggestion that he has a back injury.

29. It is clear that over a period of time money has been sent from the appellant’s parents in the United Kingdom to the appellant in Nepal. Receipts for financial remittances have been adduced which I accept shows money being transferred to the appellant from his parents. I also accept the evidence of the appellant’s father that when visiting Nepal he leaves a larger sum of money with the appellant. These remittances and this financial support must however be considered in the context of the ongoing interest of the appellant’s parents in their property in Nepal and their understandable wish to share the financial benefits of living in the United Kingdom with their family. When viewed holistically, it is clear to me that the money transferred to the appellant by his parents does not demonstrate a family life between the appellant and his parents which goes beyond the usual love and commitment between an adult child and his parents but is instead an indication of the couples need to maintain their property interests in Nepal and share the income they have in the United Kingdom with family in Nepal where the money will go further.

30. I find that it is more likely than not that, contrary to the assertions made, the appellant has worked during the last decade and that he does not have the degree of financial dependency on his parents that has been claimed.

31. I accept the evidence of the appellant’s mother and father that they are facing health challenges. The appellant’s father describes suffering chronic knee pain and says he has suffered a number of falls. Medical evidence adduced reveals that the appellant’s father is undergoing ongoing investigation and is taking medication. Although the appellant’s father says in his witness statement that he tells the appellant about these health difficulties and cries when he does so, wishing he was with the appellant, those claims in the witness statement were reflected in the oral evidence given by the appellant’s father about his relationship with his son. In fact the medical evidence demonstrates that (for entirely understandable and obvious reasons) it is the appellant’s father’s family in the United Kingdom who provide him with emotional and practical support with his health challenges. The medical records for example refer to the appellant’s father’s granddaughter (Puspa’s daughter Sapana) assisting with communication between the appellant and the medics and Puspa accompanying him to appointments. Whilst therefore there might be circumstances in which the family life between an adult child and his parents resumes when the parents become more dependent on their son or daughter, the evidence clearly demonstrates that is not the case for the appellant and his parents. The reality is that that role is fulfilled by other more proximate family members.

Issue (i) – Article 8(1) Conclusion

32. In conclusion I find that the evidence does not establish the level of real committed or effective support or the emotional support and depth of relationship between the appellant and his parents that has been claimed. Instead I find that the evidence indicates that the appellant has been living with his wife and two sons in Nepal for at least a decade following the departure of his parents, during which time he and his wife have supported their sons through their education and into maturity. Whatever the explanation for the appellant’s divorce from his wife a month before he made his application to settle in the United Kingdom, it is clear in my judgment that the appellant has had an independent, settled and well established family life with his wife and children for more than twenty years. It is equally clear, despite attempts to conceal the fact, that the appellant lives with his twenty year old son with whom he enjoys mutual support and is not, as he describes in his witness statement, alone with no one in Nepal with whom he can share his feelings.

33. In these circumstances, whilst it is clear that there is mutual love and affection between the appellant and his parents the inescapable conclusion is that after a twenty year marriage during which he has raised two sons into adulthood and has lived separately from his parents for more than a decade, the appellant has ceased to share a family life with his parents that engages Article 8 of the Convention and instead has established a life independent from them notwithstanding the fact he lives in the family home and is a recipient of financial remittances from them.

Issue (ii) – Article 8(2) Conclusion

34. Given my conclusion that Article 8(1) of the Convention is not engaged, it is not necessary to go on to consider the second issue and the proportionality of the respondent’s decision. To use the words of Sedley LJ at [29] of Patel and Others v Entry Clearance Officer [2010] EWCA Civ 17 the gateway to Article 8 has not been entered. This is a situation, like the one considered by Sedley LJ in that case where there is no family life, only bare financial support between the appellant and his parents. For what it is worth however, I do note that there are no matters other than the public interest in a firm immigration policy to militate against the appellant’s application and in those circumstances were there to have been a family life between him and his parents that engaged Article 8, it would not in the light of the historic injustice suffered, be proportionate to interfere with it.

35. I acknowledge that this will be disappointing to the appellant and to his parents who describe in their statements seeing other children of Gurkhas succeed with applications to come to the United Kingdom in the light of the historic injustice that prevented them from being born in the United Kingdom. In that way this case illustrates the point made in the Ghising and Gurung that the existence or not of family life is fact specific. It also illustrates the point made by Sedley LJ at [14] of Patel and Others:

“You can set out to compensate for a historical wrong, but you cannot reverse the passage of time. Many of these children have now grown up and embarked on lives of their own. Where this has happened, the bonds which constitute family life will no longer be there…”

Notice of Decision

The appellant’s human rights appeal is DISMISSED

Luke Bulpitt

Judge of the Upper Tribunal
Immigration and Asylum Chamber

9 May 2025

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2024-003659

First-tier Tribunal No: HU/55838/2023

THE IMMIGRATION ACTS

Decision & Reasons Issued:

…………………………………

Before

UPPER TRIBUNAL JUDGE BULPITT

Between

MUKTI BAHADUR PUN
(NO ANONYMITY ORDER MADE)
Appellant
and

ENTRY CLEARANCE OFFICER
Respondent

Representation:
For the Appellant: Ms K McCarthy – Counsel instructed by Everest Law Solicitors
For the Respondent: Mr E Tufan – Senior Home Office Presenting Officer

Heard at Field House on 28 February 2025

DECISION AND REASONS

1. The appellant, a 44-year-old citizen of Nepal sought entry clearance to settle in the United Kingdom which is where his mother and father, who is a retired veteran of the British Army Brigade of Gurkhas, have been living since May 2013. His application involved a human rights claim on the basis of the family life the appellant says he shares with his mother and father. The respondent refused to grant the appellant entry clearance. The appellant therefore appealed to the First-tier Tribunal against the refusal of his human rights claim and his appeal was heard by First-tier Tribunal Judge Beg (the Judge) on 5 June 2024. In a decision promulgated the same day the Judge dismissed the appellant’s appeal.

2. The appellant has appealed against the decision of the Judge to the Upper Tribunal. Having heard that appeal I indicated to the parties that the Judge’s decision contained an error of law such that it must be set aside. My reasons for that conclusion follow.

The Judge’s Decision

3. There was no dispute that the appellant could not meet any of the requirements of the Immigration Rules for being granted the entry clearance he sought. The appellant’s case before the Judge was that he shared a family life with his parents that engaged article 8(1) of the Convention on Human Rights (the Convention) and that interference with that family life could not be justified under article 8(2) because of the historic injustice that was suffered by Gurkha soldiers who had been deprived of the right to settle in the United Kingdom following their service in the British army. The respondent argued that the appellant did not share a family life with the appellant that engages article 8(1) of the Convention, but that if he did, applying article 8(2) of the Convention, interference with that family life was justified and proportionate in the circumstances. The issues for the Judge to resolve were therefore identified as:

Did the appellant share a family life with his parents that engaged article 8 (1) of the Convention? and if so –
Was the interference with that family life that refusing the application for entry clearance involved, justified under article 8 (2) f the Convention?

4. The Judge considered a consolidated “hearing bundle” of documentary evidence, which included a witness statement made by the appellant, and heard oral evidence from the appellant’s father and from the appellant’s sister who lives in the United Kingdom with her husband and daughter.

5. The Judge begins her setting out her findings based on that evidence at [23] of her decision. She begins that paragraph by stating that:

23. “It is common ground that when the [appellant’s father] applied for a settlement visa and entered the United Kingdom for settlement, the appellant was an adult, living an independent life….”

6. The Judge then continues in that paragraph and the following paragraphs to assess evidence that was given during the hearing:

23. …..The sponsor gave evidence that when the appellant married, he lived with him and his wife in the same house. The appellant has two adult children studying in Kathmandu. He is divorced from their mother. The sponsor stated in cross-examination that the appellant is working. However, in re-examination, he said that he grows corn, millet and potatoes for his own consumption.

24. However, the sponsor also gave evidence that he has another son Chhabilal Pun in Nepal who lives separately and does the same agriculture farming and labour work to support his family. Although there is documentary evidence that the sponsor owns land in Nepal, I do not find it credible that the appellant’s sons did unpaid agricultural work growing vegetables for themselves and their families. I find that they were able to generate an income from their work.

25. Chhabilal Pun lives in his own independent rented accommodation. He was clearly able to pay rent from the agricultural work that he did. I find that the appellant and his brother were both in paid employment when they did agricultural work and other labouring jobs. The sponsor made no mention of his son Chhabilal Pun working in a pharmacy when he was asked what his older son did for a living. His daughter gave evidence that her older brother and his wife both work in a pharmacy. I do not find the sponsor a credible witness on this issue.

7. The Judge then sets out her findings of fact including that the appellant lives in his parents’ home, that he is now divorced, that his ex-wife is living with her parents and his two sons stay with the appellant when they are not studying [26]; that the appellant’s father sent limited funds to the appellant in 2014 and 2023 but that the appellant has not been reliant financially on his father since his father left Nepal in 2013 [27]; that the appellant lives an independent life, working to support himself and his children with the money sent by his father additional funds to help manage the home and maintain the house [28].

8. At [29] the Judge turns to the appellant’s claim that he receives emotional support from his parents recording that “the sponsor made no mention in his evidence of providing any emotional support to the appellant or the frequency of his contact with his son.” The Judge then records in the following paragraphs the evidence of the appellant’s father on this topic and her findings on the topic having considered the evidence:

30. The sponsor gave evidence that he has only returned to visit Nepal three times since he entered the United Kingdom for settlement in 2013. In re-examination, he said that his last visit to Nepal was in 2022 when he discovered that his daughter-in-law was nowhere to be seen and that his grandchildren were away studying.

31. I find that if he had a close emotional relationship with the appellant, he would have known that his son and daughter-in-law had separated, and that his daughter-in-law had gone to live with her own parents, before he arrived in Nepal. The sponsor’s daughter gave evidence that the appellant and his wife stopped living together three or four years ago.

32. I find that his oral evidence contradicted paragraph 14 of his witness statement dated 29 October 2023, where he stated that following the earthquake in 2015, his son told him that his wife had left him and that she would not be returning to live with him anymore. The sponsor also said in evidence that he is not sure whether his son and daughter-in-law are still married or whether they have divorced. Again, I find that if the sponsor had a close emotional bond with the appellant, he would have known that the appellant is now divorced.

9. The Judge then went on to consider the health of the appellant’s mother and father and their circumstances in the United Kingdom before finding at [37] that:

37. In taking the evidence in the round, I find on a balance of probabilities that Article 8 is not engaged. I do not find that there is family life between the appellant and the sponsor that goes beyond normal emotional ties to a relationship of real committed and effective support. The appellant’s private life is in Nepal, where he has always lived.

The grounds of appeal

10. The appellant appealed against the Judge’s decision on four grounds. In the first ground it is asserted that the Judge was mistaken when recording at [23] that “it was common ground” that the appellant was living an independent life when his mother and father left Nepal in 2013. Instead the appellant says that his case was always that he was living with his parents in the same household until they left Nepal and came to the United Kingdom. In the second ground it is asserted that the Judge failed to record evidence given in the hearing about the appellant and his brother correctly and thereby came to unsustainable conclusion that the two brothers were in the same situation. In ground three it is asserted that the Judge failed to give any sustainable reasons for rejecting the evidence of the appellant’s father and finding him not to be credible. In ground four it is asserted that the Judge did not accurately record the evidence of the appellant’s father about his emotional ties to the appellant, misunderstood that evidence and failed to have regard to evidence about the extent of the emotional ties they share.

11. Permission to appeal was granted on all four grounds by another Juge of the First-tier Tribunal. Noting that the first ground involved a dispute about what was “common ground” at the hearing before the Judge, Upper Tribunal Judge Keith directed that the parties reviewed the recording of the hearing and agreed a relevant position on what was said before the Judge. In accordance with that direction the parties did attend a listening appointment and an agreed transcript of the hearing before the Judge was made. That transcript has been invaluable when considering this appeal.

The Error of Law

12. Having considered the evidence that was submitted to the Judge, the skeleton argument that was before the Judge and which set out the basis of the appellant’s case, and the transcript of what was said during the hearing before the Judge, I am satisfied that the Judge was mistaken when she recorded at [23] that “it is common ground that when the sponsor applied for a settlement visa and entered the United Kingdom for settlement, the appellant was an adult living an independent life”.

13. Contrary to it being common ground the appellant was living an independent life when his parents moved from Nepal to the United Kingdom in 2013, the appellant’s case is that notwithstanding the fact he was married and had two sons at that time, he was not living independently of his parents but was living with them as a single household in a house owned by his father. This is evident from the witness statements of the appellant and his father and is set out explicitly at [24(ii)] of the appeal skeleton argument which records the appellant’s case was: “A always lived with his parents prior to their travel to the UK”. It is clear from the transcript of the hearing and accepted by the respondent, that nothing was said during the hearing by or on behalf of the appellant to resile from that position.

14. Having said it was common ground that the appellant was living an independent life in 2013 the Judge immediately refers to the evidence that the appellant was living in the same house as his parents at that time. In the light of this Mr Tufan argued that when the paragraph of the decision is read as a whole it is apparent that the Judge was not referring to a concession but making a finding that the appellant was living an independent life at the relevant time. I cannot accept that submission. The judge specifically refers to the appellant living an independent life in 2013 being a matter of “common ground” when it evidently was not. Far from there being common ground, the parties disputed whether or not the circumstances that existed at the time the appellant’s parents came to the United Kingdom involved them sharing family life at that time with the appellant.

15. Having considered the transcript of the hearing I am similarly satisfied that the Judge’s record of the evidence given by the appellant’s father includes material mistakes of facts and inaccuracies which lead to findings of inconsistencies in his evidence which are not justified. An example of this is at [23] when the Judge says the appellant’s father: “stated in cross-examination that the appellant is working. However, in re-examination, he said that he grows corn, millet and potatoes for his own consumption.” The transcript however indicates that when the appellant’s father was asked in cross examination if the appellant works he replied “he doesn’t do any other work just agricultural farming” and when he was later asked on re-examination what the appellant grows he replied corn, millet and potatoes for his own consumption. There was in reality no inconsistency between the appellant’s cross-examination answers and his re-examination answers on this topic and the suggestion in the Judge’s decision that the appellant’s father gave oral evidence that the appellant does work other than growing corn millet and potatoes for his own consumption is mistaken.

16. Another example is in the following paragraph of the Judge’s decision in which the appellant’s claim to work growing crops with his own consumption is contrasted with the situation of his brother Chhabilal who not only does the same agricultural work but also works as a pharmacist. It is suggested at [25] of the Judge’s decision that contrary to what is said in that paragraph the appellant’s father was not forthcoming about Chhabilal’s works as a pharmacist however it is apparent from the transcript that the appellant’s father was not asked about what Chhabilal did for a living and was not asked to elaborate on his evidence that Chhabilal did “labour work” in addition to the farming. The Judge then went on to reach the conclusion that the appellant and Chhabilal were in the same situation but there does not appear to be any evidential basis for that conclusion and it is not possible to discern from the Judge’s decision why the Judge concluded that Chhabilal’s work as a pharmacist meant she rejected the appellant’s claim not to do any work other than farming.

17. Likewise, the Judge’s record of the evidence from the appellant’s father about when he became aware that the appellant and his wife had separated does not reflect all of the evidence he gave. The Judge records at [30] that the appellant’s father “discovered” that his daughter in law and grandchildren were not living at his house when he visited in 2022 and says at [32] that this contradicts his witness statement in which he says he was told after the earthquake in 2015 that the appellant’s wife had left him and would not be returning. The Judge’s record appears to be based on an answer the appellant’s father gave in re-examination which was that the appellant and his wife lived together in the shared house when they were married, but that when he returned to visit Nepal in 2022, the appellant’s wife was nowhere to be seen. The appellant’s father did not however say in his answer that this was when he “discovered” their separation and his answer was not on its face contradictory his account that in fact he knew about the separation in 2015 years before his return in 2022.

18. Bringing this all together, it is apparent that the Judge’s conclusions that the evidence of the appellant’s father is not credible and that the appellant “leads an independent life” have been reached at least in part on the basis of misunderstandings and mistakes about precisely what oral evidence was given by the witnesses and what agreement was reached between the parties. In these circumstances I am satisfied that the Judge’s decision involved an error of law such that it must be set aside and the issue of whether the appellant shares a family life with his parents in the United Kingdom must be considered afresh.

Rehearing

19. Both parties agreed that in accordance with the expectation expressed in the Practice Directions for the Immigration and Asylum Chambers of the First-tier Tribunal and the Upper Tribunal, the decision in respect of this appeal should be re-made in the Upper Tribunal. They also agreed that findings of fact needed to be made which the Tribunal could not make without an adjournment. The appeal is therefore adjourned so that the proceedings can be completed before the same constitution of the Tribunal. It is anticipated that the appellant’s father and sister will give evidence at that hearing. The date for that hearing should if possible be fixed for the convenience of Ms McCarthy who has represented the appellant throughout these proceedings.

Notice of Decision

The decision of First-tier Tribunal Judge Beg involved and error of law and is set aside.

The appeal will be listed for a further hearing before the Upper Tribunal for a decision to be remade.

Directions

1. Any further evidence relied upon must be filed on CE File and served on the other party no later than seven days before the next hearing.

Luke Bulpitt

Judge of the Upper Tribunal
Immigration and Asylum Chamber

3 March 2025