Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2024-003665

First-tier Tribunal No: HU/61922/2023

LH/01331/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:
24th July 2025

Before
UPPER TRIBUNAL JUDGE NORTON-TAYLOR

Between
OM KUMARI GURUNG
(NO ANONYMITY ORDER MADE)
Appellant
and

ENTRY CLEARANCE OFFICER
Respondent

Representation:
For the appellant: Ms D Revill , Counsel, instructed by Everest Law Solicitors
For the respondent: Ms H Gilmour, Senior Presenting Officer

Heard at Field House on 16 July 2025

DECISION AND REASONS

Introduction
1. This is the re-making of the decision in the appellant’s appeal against the respondent’s refusal of her human rights claim. The appellant is the adult child of an ex-Gurkha soldier (now deceased) and his widow (“the sponsor”). The relevant background to the case is set out in the error of law decision, issued on 29 January 2025 and contained in an annex to this re-making decision. The re-making decision must be read in conjunction with the error of law decision.

Legal framework
2. The relevant legal framework in cases such as the present is well-known. I have directed myself to the essential principle in parent/adult children cases, as set out in Kugathas v SSHD [2003] EWCA Civ 31, together with the further elucidation of the application of the principle in, amongst other cases, Rai v ECO [2017] EWCA Civ 320. The core test (if it can be described as such) is whether “something more exists than normal emotional ties” of love and affection and, as part of that assessment, whether the sponsor has provided which is “real”, “committed” or “effective”.

3. There is no presumption for or against the existence of family life between a parent and an adult child. Nor is there any requirement for an individual to demonstrate exceptionality. Everything depends on the particular facts of the case.

The issues: agreed and disputed
4. The issues at this stage are now fairly narrow. The first of these is whether, as a matter of fact and law and at the date of hearing, family life exists between the appellant and the sponsor within the meaning of Article 8(1), having regard to the evidence as a whole and the leading authorities. The second issue is whether, if family life does exist, the respondent’s decision disproportionately interferes with that family life.

5. The parties are in agreement that the appellant cannot satisfy any of the Immigration Rules. They also agreed that the appellant’s son (now aged almost 18) is not a relevant consideration in respect of this appeal.

6. Ms Gilmour did not suggest that the preserved finding that family life between the appellant and the sponsor ceased between 2005 and 2022 precluded the possibility that family life was re-established following the appellant’s divorce in 2022 and/or as at the date of hearing before me. The existence of family life does not have to be continuous in the sense of being unbroken and Ms Gilmour’s position was legally correct.

7. Similarly, Ms Gilmour was right not to suggest that the absence of family life between the appellant and the sponsor at the point at which the latter left Nepal in 2014 was fatal to the potential re-establishment of family life following the appellant’s divorce in 2022.

8. Ms Gilmour accepted that if family life is found to exist, the significant weight attributable to the historic injustice in cases such as the present would have the effect of rendering the respondent’s decision disproportionate and therefore in violation of Article 8.

9. As to the facts, certain findings made by the First-tier Tribunal were preserved by the error of law decision:

(a) The appellant is the daughter of a former Gurkha soldier;

(b) The sponsor left Nepal to settle in the United Kingdom in 2014;

(c) The appellant was married between 2005 and 2022 and there was no family life between her and the sponsor during this period;

(d) The appellant had a child with her ex-husband in 2007;

(e) Following the divorce, the appellant began living at the sponsor’s rented property.

The documentary evidence
10. The documentary evidence is contained within a bundle provided by the appellant, indexed and paginated 1-166.

The oral evidence
11. The sponsor attended the hearing and gave evidence with the assistance of a Nepalese interpreter. I was satisfied that they understood each other and that there were no difficulties in communication during the hearing.

12. The oral evidence was of course recorded, but I confirm that I took a detailed note of what was said in any event.

The parties’ submissions
13. Ms Gilmour relied on the respondent’s decision letter, whilst recognising the passage of time since it was issued. She emphasised the significant period of time during which there was no family life between the appellant and the sponsor. She submitted that since the appellant’s divorce there had been a “shift” of family life, but that had in reality been towards the appellant’s older sister, Man Maya, not the sponsor. The evidence showed that the sponsor was in essence paying equal attention (in terms of communication and support) to all her children in Nepal. In summary, it was submitted that there was nothing beyond normal emotional ties.

14. Ms Revill noted that the appellant’s marriage had not been a happy one and this formed part of the background. Since the divorce, the appellant had lived in property rented by the sponsor and this was a relevant factor. The circumstances of the marriage and divorce is likely to have meant that the appellant required additional support from the sponsor. There was evidence of the use to which the appellant put the remittances from the sponsor. There was frequent contact between the appellant and the sponsor. There was no requirement to the fore the appellant to show any form of exceptional support. She accepted that financial support was not of itself sufficient to demonstrate the existence of family life.

15. At the end of the hearing I reserved my decision.

Findings of fact
16. In making the relevant findings of fact in relation to the Article 8(1) issue, I have considered the evidence as a whole, set against the standard of the balance of probabilities and with the burden resting with the appellant to make out her case.

17. There is no substantive challenge to the truthfulness and reliability of the evidence before me. In addition to those preserved from the First-tier Tribunal’s decision, I make the following findings.

18. I am prepared to accept that the appellant’s marriage was not a particular happy one. Having said that, I note that her evidence to that effect had been put before the First-tier Tribunal and there is nothing to suggest that it was not considered as part and parcel of the judge’s overall fact-finding assessment. Notwithstanding problems in the marriage, the judge found (and it is preserved) that there was no family life between the appellant and the sponsor during the period of that marriage.

19. I find that following the appellant’s divorce in 2022, she moved in with her older sister, Man Maya, to a property which was and remains rented using the financial resources of the sponsor. I find that the appellant has resided with her sister and her sister’s children ever since.

20. I accept that the appellant has no form of financial support other than the remittances sent by the sponsor. There is some evidence indicating a breakdown of the expenses which have been funded by those remittances and I accept that the financial support has been used for what one would describe as basic needs.

21. I find that the appellant does not suffer from any health conditions or other vulnerabilities.

22. I accept that the sponsor has visited Nepal on a number of occasions since she initially left in 2014. Those visits occurred in 2017, 2018, 2019, 2021, 2022, and 2023. On the evidence, I find that the sponsor spent time with the appellant on all, or at least most, of those visits. At the same time, the sponsor acknowledges that she had spent time with her other children, or at least Man Maya, as well.

23. I accept that there has been regular communication between the sponsor and the appellant through what is probably FaceTime or some other platform. On the evidence, I accept that this takes place once or twice a week. The sponsor acknowledge that she also communicates with her other children, or at least Man Maya, on a similarly regular basis.

24. I have no doubt that the sponsor feels lonely in this country and would like to have at least one of her children with her here.

Conclusions on family life and Article 8(1)
25. I now apply my findings and those preserved from the First-tier Tribunal’s decision to the legal framework identified previously.

26. I conclude that the financial support provided by the sponsor over the course of time and to date has been “real”, “committed”, or “effective” (it is not altogether clear to me what difference there is between these disjunctive terms, but that is not important in the present case). The remittances have funded the accommodation in which the appellant lives and having part on to basic living costs. It appears as though the remittances have also been used to fund the older sister.

27. As mentioned earlier, Ms Revill accepted that the provision of financial support would not of itself be sufficient to demonstrate the existence of family life. She was right to do so. The emphasis is on the “real existence in practice of close personal ties”: Singh v ECO [2004] EWCA Civ 1075, at [20] (emphasis added). This implicitly involves an examination of more than purely financial ties. Further, it has been said that “further elements of emotional and/or financial dependency are necessary…”: Mobeen v SSHD [2021] EWCA Civ 886, at [46] (emphasis added). Other authorities make the point that financial dependency will not be sufficient to establish family life between a parent and an adult child.

28. The lengthy period (17 years) during which there was no family life between the appellant and sponsor is not of course fatal to its existence now, but it is a relevant consideration. Whilst the marriage might not have been happy, it is implicit in the finding of the absence of family life during this period that the relationship between the appellant and the sponsor did not go beyond the normal ties of affection even if the latter provided some form of support to her daughter during troubled times. Each case depends on its own facts, but it is inescapable that there was a very significant period of time during which the appellant lived an independent life.

29. It is relevant that the sponsor left Nepal almost at the half-way point of the appellant’s marriage. There was no family life between the two of them at the point of departure. This has nothing to do with any “choice” on the sponsor’s part, but is simply part of the overall factual matrix. There had been no cohabitation between the appellant and the sponsor for some 9 years before the latter left the country and there has been no material cohabitation ever since.

30. It is also relevant that following the divorce in 2022, the appellant moved into a property already occupied by her older sister and her children (or at least some of those children). Both representatives used the term “shift” when describing the relationship dynamics following the divorce. On balance, I conclude that the “shift” in the appellant’s emotional support compass is more likely to have been towards her sister rather than the sponsor, given that she was from that point onwards living within that family unit and having day-to-day direct contact with her older sibling. I infer from this that emotional support has been and is derived by the appellant from Man Maya. In turn, this reduces the likelihood that support, at least emotional support, emanating from the sponsor has been “real”, “committed”, or “effective”. In saying this, I do not exclude the possibility of there being sufficiently strong familial relationships between different individuals at the same time; i.e. between the appellant and the sponsor and between the appellant and her older sister.

31. There has been and remains regular indirect contact between the appellant and the sponsor through Internet platforms. I take into account the fact that this form contact is not particularly frequent, being once or, at most, twice a week. The evidence, which is relatively thin, indicates that the two speak about their lives and concerns: the sponsor about her life in the United Kingdom and her health; the appellant no doubt about her circumstances and a desire to support her mother in this country. Even taking into account the possibility that the divorce caused the appellant upset and distress, this evidence, taken together with all other considerations, does not in my judgment demonstrate “real”, “committed”, or, “effective” emotional support which is indicative of ties beyond the normal bonds of love and affection. Rather, I conclude that it simply reflects genuinely-held love and affection between a mother and her daughter. I am not requiring anything exceptional, but it is the case that such love and affection between an elderly mother and a daughter who resides thousands of miles away is, at least on the facts of this case, “normal”.

32. The sponsor confirmed that she speaks to Man Maya with the same frequency as the appellant. Again, this does not preclude the existence of multiple family life ties. However, it is indicative (albeit only to a limited extent) of the sponsor’s support (such as it is) for the appellant not going beyond the normal ties of love and affection and that any such support is not, when seen in the context of the core test in Kugathas, “real”, “committed”, or “effective”: the sponsor herself as described her love for all of the children as being equal. I record that I have not been asked to find that there is family life between Man Maya and the sponsor.

33. In terms of the sponsor’s visits to Nepal, only two of them have taken place after the appellant’s divorce in 2022. The sponsor stayed with the appellant and Man Maya. I do not regard this form of direct contact as demonstrating any “real”, “committed”, or “effective” emotional support for the appellant.

34. Once again emphasising the absence of any requirement to show exceptionality, I simply record that there are no health issues or suchlike pertaining to the appellant which might otherwise have been indicative of personal ties between the appellant and the sponsor going beyond the norm.

35. It has not been expressly contended that that the sponsor is dependent on the appellant within the meaning of Article 8(1): the focus has been entirely in the other direction. In any event, the sponsor is financially independent and, while she clearly wants familial company in the United Kingdom, the evidence before me does not go to show ties beyond normal love and affection.

36. Bringing all of the above together, and on a fact-sensitive basis, I conclude that family life between the appellant and the sponsor was not re-established following the divorce in 2022 and that as of today, there is no family life between the two for the purposes of Article 8(1).

37. It follows that Article 8 is not engaged and that accordingly the appellant’s appeal must be dismissed.

Anonymity
38. There is clearly no basis for an anonymity direction in this case and I do not make one.

Notice of Decision
The making of the decision of the First-tier Tribunal did involve the making of an error on a point of law and that decision has been set aside.

The decision in this appeal is re-made and the appeal is dismissed.

H Norton-Taylor
Judge of the Upper Tribunal
Immigration and Asylum Chamber
Dated: 17 July 2025

ANNEX: THE ERROR OF LAW DECISION

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2024-003665

THE IMMIGRATION ACTS

Decision & Reasons Issued:

…………………………………

Before

UPPER TRIBUNAL JUDGE NORTON-TAYLOR

DEPUTY UPPER TRIBUNAL JUDGE HILLS

Between

OM KUMARI GURUNG
(anonymity direction not made)
Appellant
and

ENTRY CLEARANCE OFFICER
Respondent

Representation:

For the appellant: Ms Revill, Counsel, instructed by Everest Law Solicitors
For the respondent: Mr Tan, Senior Presenting Officer

Heard at Field House on 20 January 2025

DECISION AND REASONS
1. The appellant is a citizen of Nepal who made an out of country appeal against the Entry Clearance Officer’s refusal of entry clearance for settlement, which was dismissed by a decision of First-tier Tribunal Judge Shergill (“the judge”) promulgated on 15 May 2024. She appeals that decision to the Upper Tribunal.
2. The appellant is the daughter of a deceased former member of the Brigade of Gurkhas. Her mother settled in the UK as the widow of a Gurkha. The appellant has a minor child in Nepal who was not a party to the application for entry clearance.
3. Three grounds of appeal were advanced: (1) The judge erred in relation to the impact of voluntary separation; (2) The judge erred in considering whether family life has been resumed following cessation; and/or (3) The judge considered matters irrelevant to the outcome of the appeal.
4. Before the Upper Tribunal, the focus of Ms Revill’s submissions was on the second ground so we deal with that first.
Ground 2: Resumption of family life
5. As the appellant’s written grounds rightly point out, the question for the judge was whether family life existed at the date of the hearing. That determination is to be made by assessing if there is “real, effective, or committed” support (Rai v Entry Clearance Officer, New Delhi [2017] EWCA Civ 320). The appellant argues that instead of applying that test, the judge considered whether the financial dependency which the appellant now has on her mother “remedies the diminution of the quality of family life during the preceding 17 years.”
6. The judge found that the appellant had an independent life for 17 years away from her mother from 2005, when she married and began living with her husband [11]. During this period, the appellant’s relationship with her mother did not have the qualities of continued bonds of real, effective, or committed support which would underpin family life under Article 8 [12] and as such, she could not demonstrate family life at the time the appellant’s mother left Nepal and moved to the UK in 2014 [13].
7. The judge found at [15]:
“…I am satisfied that once she had established an independent life, which continued as long as it did, it took her out of the scope of the historic injustice remedy due to the break in family life that existed before the mother left Nepal for settlement.”
8. The judge places significant weight on the period of 17 years when the appellant was living away from her mother and the absence of a family life when her mother moved to the UK. The judge appears to be of the view that there must be a continuous, unbroken family life for the appeal to succeed, which is not correct. It is entirely possible for family life to cease and then be re-established through subsequent circumstances. Mr Tan appeared to accept that this was, in principle, possible depending on the facts of the case.
9. At the Upper Tribunal hearing Ms Revill argued that the appellant’s divorce in 2022, move to her mother’s rented property and need for financial assistance amounted to such subsequent circumstances.
10. The judge dealt with the appellant’s situation after her divorce at [15]:
“…living in a home rented by the mother when the mother is not ordinarily resident there (bar any visits) does not show family life ‘endured’ beyond the mother’s settlement or otherwise indicate ongoing family life under Article 8. Any resumption of dependency on the mother for living expenses since 2022 does not remedy the diminution of the quality of family life during the preceding 17 years during which she had her own family and an independent life.”
11. The relevant test was not whether the appellant’s current circumstances remedied the previous lack of family life, but whether on an assessment of the evidence at the time of the hearing family life in fact existed. In this respect, the judge has erred.
12. The judge makes a finding at [15] that ‘…the background facts and evidence do not show that Article 8 family life existed… c) as at the date of the hearing.’ Even if the judge was applying the correct test and “remedy” was merely an unfortunate turn of phrase, the finding that family life did not exist as at the date of the hearing is insufficiently reasoned and does not demonstrate an adequate assessment of the evidence contained in the appellant’s bundle.
13. For the reasons set out above, the judge’s decision must be set aside.
Ground 3: Irrelevant factors
14. At [5] the judge finds:
“I am satisfied that the status quo is in the child’s best interests; and that being with one or other parent is in his interests. That points strongly to the appellant remaining with her son, in his best interests. The appellant has failed to show that alternative arrangements would be in his best interests. On that basis my primary ground for refusing the appeal is that allowing it would be contrary to the child’s best interests.”
15. The appellant argues that this issue was not raised by the respondent and she was not asked to address it by the judge, although it is perhaps surprising that the appellant did not proactively address it in more detail having provided some information about the plans for her child should entry clearance for settlement be granted.
16. The judge was correct in holding that the spirit of the s.55 statutory duty applied. While the assessment of the best interests of the child is relevant to the proportionality assessment, it does not provide a basis upon which to dismiss the appeal in relation to Article 8. It cannot, therefore, be a ground, let alone the primary ground (as the judge expressed it), to refuse the appeal. Mr Tan for the respondent accepted that the best interests of the child was not material to the Article 8 point.
Ground 1: Effect of separation
17. The appellant argues that the judge proceeded under the legal mis-direction that voluntary separation ends existent family life, which is in conflict with the authorities.
18. This point was not pursued in any detail at the Upper Tribunal hearing however, for the avoidance of doubt, we agree that voluntary separation does not end existent family life.
Preserved findings of fact
19. A number of the factual findings underpinning the judge’s decision were not challenged before the Upper Tribunal and we are therefore able to preserve those findings. Those findings are that the appellant is the daughter of a former Gurkha and her mother left Nepal to settle in the UK as the widow of a Gurkha in 2014. The appellant married in 2005 and had a child in 2007. She was married to her husband for 17 years before they divorced in 2022. She had lived with her husband at their permanent address Biruwa Rural Municipality Ward No 7 as per the divorce certificate. The appellant started living separately at her mother’s rented property after the divorce. The composite finding of no family life between 2005 and 2022 is also preserved.
Disposal
20. The decision of the First-tier Tribunal is vitiated for the reasons outlined above. We set aside the decision of the First-tier Tribunal. None of the findings of fact shall stand save for those findings detailed in [19] above. Given that the factual matrix is for the most part settled and that the only outstanding issue remains whether there is now family life, we consider that the decision may be remade in the Upper Tribunal following a resumed hearing.
Notice of Decision
The decision of the First-tier Tribunal is set aside. The decision will be remade in the Upper Tribunal following a resumed hearing on a date to be fixed at Field House.
Directions to the parties
1. The parties may adduce additional evidence addressing the outstanding issues.
2. Any documentary evidence (including witness statements) upon which the appellant wishes to rely to be filed at the Upper Tribunal and served on the respondent no less than 14 days prior to the resumed hearing.
3. The appellant to inform the Upper Tribunal no less than 14 days prior to the resumed hearing if she requires an interpreter.
4. Any documentary evidence (including witness statements) upon which the respondent wishes to rely to be filed at the Upper Tribunal and served on the appellant no less than 7 days prior to the resumed hearing.

N. Hills

Deputy Judge of the Upper Tribunal
Immigration and Asylum Chamber

Dated: 27 January 2025