Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2024-004264 & UI-2024-004265

First-tier Tribunal No: HU/58782/2022
(LH/00698/2023)
HU/58783/2022
(LH/00699/2023)

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On 18 July 2025

Before

UPPER TRIBUNAL JUDGE BULPITT
DEPUTY UPPER TRIBUNAL JUDGE NAIK KC

Between

(1) GOPAL CHANDRA GHOSH
(2) NAMITA GHOSH
(NO ANONYMITY ORDER MADE)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Ms K McCarthy, Counsel instructed via Direct Access
For the Respondent: Ms S McKenzie, Senior Home Office Presenting Officer

Heard at Field House on 1 July 2025

DECISION AND REASONS
1. This is a remaking decision in respect of appeals by the two appellants against the respondent’s refusal of applications for entry clearance they made on 6 May 2022. As will be immediately apparent, there is a lengthy history to these appeals. That has involved two previous decisions in respect of the appeals made by the First-tier Tribunal which have each been set aside on the basis that the Upper Tribunal found that the hearing in the First-tier Tribunal involved a procedural unfairness. We attach the latest of those decisions made by Upper Tribunal Judge Smith as an appendix to this decision.
2. We have reached our decision following an in-person hearing which was attended by the appellants’ son Sudipt (the sponsor) who participated throughout with the assistance of a Hindi interpreter, providing oral evidence and answering questions in cross examination. We have had regard to that evidence when coming to our decision.
3. We have considered the submitted documentary evidence which the parties agreed at the beginning of the hearing. From the appellants there was an Appellant’s Bundle (AB) of 44 indexed pages, a supplementary Appellants Bundle (ASB) of 11 indexed pages, a second supplementary Appellants Bundle (ASSB) of 32 indexed pages. From the respondent there was a separate Respondent’s Bundle for each of the appellants (although they contained largely the same material). The bundle for the first appellant (RB1) was 136 pages and the bundle for the second appellant (RB2) was 167 pages.
4. We have also considered the written and oral submissions made by the parties. For the appellants this involved a helpful skeleton argument drafted by Ms McCarthy and for the respondent a letter helpfully provided by Ms McKenzie drawing our attention to the relevant Immigration Rules and Home Officer guidance. We are grateful to both advocates for their assistance and submissions.
5. Having considered all the evidence and submissions made in the round, we are satisfied that the appellants met the requirements of the Immigration Rules for being granted entry clearance as the Adult Dependant Relatives of the sponsor. Accordingly, we have concluded that the respondent’s decision to refuse their applications involved a disproportionate interference with the family life they share with the sponsor and as such the decision was unlawful under the Human Rights Act 1998. We therefore allow the appellants appeals on human rights grounds. The reasons for these conclusions follow.
Background
6. The first appellant is 82 years old and the second appellant is 77 years old. They are married and live in Jhansi in Uttar Pradesh, India in the family home where the first appellant has lived his whole life (save for the brief period when they tried living with their son in Delhi). They have two sons Saumitra who lives in Delhi with his wife and two children and the sponsor who lives in London with his wife and two children, having settled in the United Kingdom in 2014.
7. On 5 May 2022 the appellant each made applications for entry clearance so that they could join the sponsor and his family in the United Kingdom on the basis that they were the sponsor’s adult dependant relatives (ADR). At the time they made that application, paragraph EC-DR1.1. of Appendix FM to the Immigration Rules provided that the requirements for being granted entry clearance as an ADR were that:
(a) The applicant must be outside the United Kingdom ;
(b) The applicant must have made a valid application for entry clearance as an ADR
(c) The applicant must not fall for refusal under any of the grounds in Section S-EC of Appendix FM
(d) The applicant must meet all of the “eligibility requirements” of Section E-ECDR of Appendix FM
8. The respondent refused the appellants applications on 24 October 2022. The respondent was satisfied that the appellants meet (a) – (c) of the requirements set out in paragraph EC-DR1.1, however the respondent was not satisfied that the appellants fulfilled (d) of EC-DR1.1 because she was not satisfied they met all the eligibility requirements in Section E-ECDR.
9. Those eligibility requirements include “relationship requirements” and “financial requirements”. The respondent accepted and continues to accept that the appellants met the financial requirements. The respondent did not accept that the appellants met all the relationship requirements. Those requirements were, so far as is relevant:
E-ECDR 2.1 The applicant must be the (a) parent aged 18 years or over … of a person (“the sponsor” who is in the United Kingdom

E-ECDR.2.2 If the applicant is the sponsor’s parent…they must not be in a subsisting relationship with a partner unless that partner is also the sponsor’s parent…and is applying for entry clearance at the same time as the applicant.

E-ECDR2.3 The sponsor must at the date of the application be (a) aged 18 or over; and (b) (i) a British citizen or (ii) present and settled in the United Kingdom

E-ECDR.2.4. The applicant or, if the applicant and their partner are the sponsor's parents or grandparents, the applicant's partner, must as a result of age, illness or disability require long-term personal care to perform everyday tasks.

E-ECDR.2.5. The applicant or, if the applicant and their partner are the sponsor's parents or grandparents, the applicant's partner, must be unable, even with the practical and financial help of the sponsor, to obtain the required level of care in the country where they are living, because-
(a) it is not available and there is no person in that country who can reasonably provide it; or
(b) it is not affordable.
10. In respect of the first appellant the respondent accepted the all the relationship requirements were met except E-ECDR.2.5. In respect of the second appellant the respondent accepted that the relationship requirements were met except E-ECDR2.4 and E-ECDR2.5. On this basis the respondent concluded the requirements of the Immigrations Rules had not been met. The respondent went on to conclude that there were no exceptional circumstances which rendered refusal of the applications a breach of the appellants' rights under Article 8 Convention on Human Rights (the Convention) hence the applications were refused.
11. The appellants appealed against those decisions maintaining that they meet all the requirements of the Immigration Rules and therefore that the refusal of their appeals is disproportionate interference with their article 8 Convention rights.
Legal Framework
12. The sole ground of appeal available to the appellants is that the respondent’s decision is unlawful under section 6 of the Human Rights Act 1998. Section 6 Human Rights Act 1998 requires the respondent’s decisions to be compatible with a person’s Convention rights. The appellants case is that the decisions are not compatible with the right to respect for the private and family life they have established in the United Kingdom which arises by virtue of Article 8 of the Convention.
13. Article 8(1) of the Convention provides for the right to respect for a person’s private and family life. Article 8(2) provides that this right must not be interfered with by a public authority “except as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic wellbeing of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”
14. It is for the appellants to establish that he has a private and family life which engages Article 8(1). When Article 8(1) is engaged, then it falls to the respondent to justify the proposed interference. The state has a “margin of appreciation” when considering whether a fair balance has been struck when assessing whether an interference with family life complies with Article 8(2). The Immigration Rules reflect the responsible Minister's assessment, at a general level, of the relative weight of the competing factors when striking a fair balance under article 8. It follows therefore that where Article 8(1) is engaged and the requirements Immigration Rules are met then interference with the private and family life cannot be justified under Article 8(2) of the Convention (see TZ (Pakistan) v Secretary of State for the Home Department [2018] EWCA Civ 1109 at [34]).
15. If the requirements of the Immigration Rules have not been met, then to produce a decision that complies with the Article 8 Convention right to respect for an individual’s family life, it is necessary to undertake an overarching assessment to determine whether in all the circumstances the interference with the appellant’s private and family life in the United Kingdom that refusal of his application involves, is proportionate. Where an overarching proportionality assessment is required, it is for the appellant to establish that the strength of his private and family life outweighs the public interest in maintaining effective immigration control. A very compelling case will be required to outweigh the public interest where the requirements of the Immigration rules have not been met (see Agyarko v Secretary of State for the Home Department [2017] UKSC 11 at [57]).
The Disputed Issues
16. In this context it was agreed by both parties at the start of the hearing that the issues we must resolve to determine this appeal are:
i. Whether the second appellant meets the requirements of E-ECDR.2.4 ?
ii. Whether the two appellants meet the requirements of E-ECDR.2.5 ?
17. The parties agreed that if the answer to both these questions is “yes” then the appeals must be allowed as the appellants meet the requirements of the Immigration Rules and refusal of their applications is in those circumstances disproportionate. If the answer to either or both question is “no” then the parties agreed we must conduct an overarching proportionality assessment to determine whether interference with the appellants family life with the sponsor is proportionate.
Analysis
E-ECDR.2.4
18. The respondent has conceded that the first appellant meets the requirements of E-ECDR2.4 i.e. that as a result of his age, illness or disability he requires long-term personal care to perform everyday tasks. This was on the basis of evidence he provided with his application (contained within RB1) which showed that the first appellant has been diagnosed with dementia and a kidney cyst, that he has suffered a cerebrovascular stroke, has high cholesterol, hypothyroidism and constipation. The same evidence referred to the first appellant’s need for supportive care while walking and going to the washroom. The application also included reference to the first appellant struggling with incontinence and the assertion that he needed assistance in personal and household tasks. We consider this evidence to be compelling and that the respondent’s concession was in the circumstances sensible and appropriate.
19. During the three years that have passed since the application the first appellant has provided further updated evidence about his medical condition. Most recently the ASSB included a report from Dr Jitendra Tiwari who said he visited the appellants on 19 March 2025 and found that the first appellant’s health had deteriorated, noting that communication was extremely challenging due to the first appellant’s hearing loss, that the first appellant’s ability to stand and walk had worsened, his forgetfulness had increased suggesting a rapid progression of his dementia and that his hands trembled when holding a stick, indicating further weakness. A report from Dr Gaurav Saxena Associate Professor and Head of the department of physiotherapy at the MLB Paramedical Training College in Jhansi adds that the first appellant was examined on 22 March 2025 and gives the opinion that the first appellant’s side diagnosis meant that the first appellant “requires full assistance for his day to day activities and ambulation…he requires continuous monitoring, supervision and full assistance of an attendant / family member for all his activities including personal hygiene and care.” This evidence was not challenged and we give it significant weight. Overall, the evidence is clear and compelling that the first appellant’s age and illness means he requires long term personal care to perform everyday tasks.
20. That being the case it necessarily follows that the second appellant also meets the requirements of E-ECDR.2.4 as that requirement is met if “the applicant or, if the applicant and their partner are the sponsor’s parents, the applicant’s partner “requires long-term personal care to perform everyday tasks. The effect of the respondent’s concession that the first appellant meets the requirements of E-ECDR.2.4 is that the second appellant also meets the requirements and so the answer to the first question we must resolve is therefore “yes”.
21. It is relevant however that the second appellant’s case is that since the applications for entry clearance were refused her health has deteriorated so that now she also requires long-term personal care to perform everyday tasks. A report from Dr Gaurav Saxena dated 21 February 2024 in the AB confirms that the second appellant has a liver cirrhosis which has led to her suffering portal hypertension and an umbilical hernia, severe muscle weakness with loss of balance and coordination. An updated report from Dr Gaurav Saxena in the ASSB and dated 22 March 2025 confirms that her condition has deteriorated in the last year, that the second appellant has extremely poor balance and co-ordination and that she requires continuous monitoring, supervision and full assistance for her day to day activities..
22. The ASSB contains further evidence about the second appellant. The report of Dr Jitendra Tiwari confirms that the second appellant has now developed cataracts in both eyes, hearing loss and that poor nutrition has caused her condition to worsen. He describes how “Due to ascites her legs and arms swell making it very difficult for her to continue working, standing or walking.”. A report from audiologist Sanjeev Kanchan also confirms that the second appellant has moderate hearing loss in one ear and severe hearing loss in the other ear.
23. The sponsor’s oral evidence was that the liver cirrhosis has also had the consequence of the second appellant suffering ascites and jaundice and as a result that she has been hospitalised on a number of occasions. In his most recent witness statement dated 1 May 2025, the sponsor said that the second appellant was in hospital for this reason. He told us in his oral evidence that she has subsequently been discharged and returned home, but that the medics discharging her suggested that the second appellant may die in the next six months. The sponsor referred to the second appellant making weekly trips to the hospital for treatment.
24. We find the evidence of the second appellant’s illnesses and the effect they have had on her to be compelling and convincing. We accept the reports that have been provided as reliable and that they accurately reflect the second appellant’s medical condition. We were impressed by the detail of the evidence gathered over the last number of years and found the different experts to be supportive of one another and to add to the cumulative weight to be attached to the reports. We found the sponsor to be an impressive witness who has been transparent throughout his dealings with the respondent and gave his evidence in a clear and forthright manner seeking to clarify and assist enquiry into the appellants situations. He has over a significant period of time sought to source and to serve evidence to address concerns that have been raised.
25. On the basis of this convincing evidence we conclude that the second appellant also needs long term personal care to perform everyday tasks. It is a consequence of being in that position that the second appellant is not in a position to provide the first appellant with the personal care and support that he needs. It follows that we find both appellants meet the requirements of E-ECDR.2.4 of the Immigration Rules.
E-ECDR.2.5
26. The respondent’s case is that the appellants can receive the care they need in India. In the decision letters it was suggested that the second appellant could provide the first appellant with the care that he needs. Having found for the reasons already explained, that the second appellant herself requires care long-term personal care to perform everyday tasks it follows that we disagree with this suggestion. We find that the appellants are not able to provide one another with the long-term personal care they each need to perform everyday tasks.
27. The respondent also suggests in the decision letters that the appellants could receive the long- term personal care they need from their elder son Saumitra who continues to live in India. The evidence before us from the sponsor however is that Saumitra has withdrawn himself from his parents completely so that he does not now visit them at all and only occasionally speaks to them on the phone. In his statement in the AB the appellant gives a very detailed account of how that state of affairs has arisen. He explains that Saumitra, his wife and two children live in a two bedroom flat on the fifth floor of an apartment block in Delhi which is entirely unsuitable for his parents to live in. Despite this, after the applications for entry clearance were refused the family considered the only option was for the appellants to live with Saumitra in that flat. They moved in with Saumitra in May 2022 and continued to live there until October 2023. The sponsor explains how this time was extremely challenging and ultimately led to a breakdown of the relationship between Saumitra and the appellants. There was a water shortage, the property was too small, the first appellant was incontinent, could not hear and in his confusion became aggressive towards Saumitra and his family. The neighbours began to complain and when Saumitra became unsympathetic the situation became untenable leading eventually to the appellants moving out and the breakdown of their relationship with their older son.
28. The sponsor was asked in cross examination about these events and why his brother has stopped seeing the appellants. He provided further details about the events including the fact that while living with Saumitra the first appellant had fallen and been hospitalised and his mother had also become very sick and diagnosed with ascites. He explained that Saumitra’s family had been forced to live in one room, causing domestic chaos which spread to the neighbours especially when the first appellant was shouting about his constipation. Whilst on first assessment we were cautious about the suggestion that following their application to come to the United Kingdom there has been an intractable breakdown in the relationship between the appellants and their son in India, we found the sponsor’s evidence compelling and entirely convincing. We have regard to the highly stressful situation described and consider a breakdown of relationship in those very difficult circumstances to be plausible. We note the frequent trips the sponsor made to India during this time to try to facilitate the relationship between his parents and his brother. We also note the supporting evidence for the sponsor’s account from external sources such as the report of Dr Jirendra Tiwari which refers to the first appellant explaining the breakdown of his relationship with Saumitra as well as the statement from the first appellant’s brother Gokul. We conclude that there has been a breakdown of the relationship between the appellants and their remaining son in India and that the appellants are unable to receive the long-term personal care they require from that son.
29. The respondent has also suggested that the appellants could receive the care they need from the first appellant’s younger brother Gokul who has been living with the appellants in the family home in Jhansi. The AB contains a witness statement from Gokul dated 19 February 2024 in which he says that the burden of looking after the appellants and the relentless schedule of attending to their needs has caused him to become unwell and become too much for him to bear. A further statement from Gokul in the ASSB states that following a deterioration in his own health including treatment for gallstones, knee pain, fatty liver, renal cyst and high blood pressure he has moved to Delhi to live with his son. This was confirmed by the sponsor in his most recent statement and the sponsor was not challenged about that evidence in cross examination. We are not persuaded that at the age of 77 and with health challenges of his own, Gokul was ever a realistic long-term carer for the appellants. We accept the unchallenged evidence that any possibility of Gokul caring for the appellants has in any event now gone with Gokul moving to Delhi to receive the care he himself needs from his own son.
30. Finally the respondent’s case is that the appellants could receive the long-term personal care they require from professional carers in India funded by the sponsor. In response to this suggestion the sponsor has been proactive and obtained a substantial amount of evidence about the feasibility and affordability of professional carers for the his parents. We consider the sponsor’s extensive efforts to obtain and serve this evidence to be indicative of his genuine desire to find his parents the care they need and to deal transparently with the respondent. We found the evidence he has produced having made those enquiries to be persuasive and reliable. We are satisfied that evidence the sponsor has adduced about professional care in India is accurate and reliable.
31. When the appellants submitted their applications for entry clearance they included an email from a care company in India called Portea Medical setting out the cost of 24 hour care from nursing attendants at the appellants home in Jhansi. The email confirms that in addition to a daily cost of 1200 Rupees per nursing attendant, accommodation and food for the nursing attendants would additionally need to be provided by the customer. An email from a second company Care24 states that they do not provide care in Jhansi. Further evidence is provided in the ASSB updating the position in the light of the deterioration in the health of the two appellants during the almost three years since the application was made. This time quotes are provided from Vesta Elder Care for care to be provided in either Delhi or Jhansi and Care24 who only provide care in Delhi. Again the quotes confirmed that carers in Jhansi would have to be provided with food and accommodation in addition to the daily cost. The sponsor explained in his oral evidence that he had sought an updated quote from Portea Medical but was no longer able to make contact with them. The sponsor has collated the information provided by the two care companies into a spreadsheet which he produces in the ASSB. The spreadsheet shows his calculations of the full cost of a care package in Delhi and Jhansi. His calculations are that the monthly cost for care in Delhi would be £1,891 and the monthly cost for care in Jhansi would be £2,798. We accept these figures are likely to be correct.
32. Although this evidence establishes that care can be provided for the appellants in India, it is argued on their behalf by reference to E-ECDR.2.5 first that the care that would be provided would not amount to their “required level of care” and second that it would not be “affordable”.
33. In support of the argument that the care in India would not meet their required level of care the appellants rely on the judgment of the Master of the Rolls in BRITCITS v Secretary of State for the Home Department [2017] EWCA Civ 368. In that judgment Sir Terence Etherton rejected an argument that the Adult Dependant Relative rules in Appendix FM of the Immigration Rules were unlawful because they were too restrictive but in doing so stated at [59]:
Second, as is apparent from the Rules and the Guidance, the focus is on whether the care required by the ADR applicant can be “reasonably” provided and to “the required level” in their home country. As [counsel] confirmed in his oral submissions, the provision of care in the home country must be reasonable both from the perspective of the provider and the perspective of the applicant, and the standard of such care must be what is required for that particular applicant. It is possible that insufficient attention has been paid in the past to these considerations, which focus on what care is both necessary and reasonable for the applicant to receive in their home country. Those considerations include issues as to the accessibility and geographical location of the provision of care and the standard of care. They are capable of embracing emotional and psychological requirements verified by expert medical evidence. What is reasonable is, of course, to be objectively assessed.
34. The sponsor’s evidence was that as a result of his dementia, the first appellant has become mistrustful of people he does not know and aggressive towards them. He explained that this has caused people to refuse to work with the appellants as their carers. Similarly he described in his oral evidence how his father would push neighbours who seek to help away, that he does not like anyone he doesn’t know coming near him and that it has only been the sponsor who has been able to calm him down either when visiting or over the phone. This evidence is supported by the statement from Gokul who has faced the first appellant’s aggression and the expert evidence about the rapid progression of the first appellant’s dementia. In particular Dr Jitendra Tiwari says in his latest report that “The lack of family presence continues to cause deep and emotional distress for the elderly couple”.
35. Having undertaken an objective assessment of the evidence in the round, we are satisfied that the dementia suffered by the first appellant having rapidly progressed, his emotional and psychological requirements can only be met by regular contact with a known, familiar and trusted family such as the sponsor. We are satisfied that the nursing assistants in India will not be reasonably able to provide the first appellant with the suitable level of care that he needs because the first appellant’s dementia is such that he will not enable them to do so without the supportive and calming presence of the sponsor or another close family member. Having found that there is no other close family member who can or will provide that care, the reality in our judgment is that the presence of the sponsor is needed to provide the appellants with the emotional and psychological care they need.
36. It was suggested by the respondent that the sponsor could move to live in India with the appellants and work with carers to provide the appellants with the care they need in that country. In support of that argument the respondent relied on a decision of the Court of Appeal in Ribeli v Entry Clearance Officer [2018] EWCA Civ 611 in which a decision to dismiss an appeal against the refusal of an application made by an Adult Dependant Relative was predicated on a finding that the sponsor could reasonably move from the United Kingdom to support her parent in South Africa. We are concerned that the respondent was treating Ribeli as some kind of factual precedent, something which the does not in fact exist. In any event the facts in this case are markedly different to those in Ribeli case. We are satisfied that it would not be reasonable to expect the sponsor to move to India provide the appellants with the emotional and psychological support they need. The sponsor is settled in the United Kingdom, becoming a British citizen and has his family in the United Kingdom where they live in house which they own. His wife is working in the United Kingdom, their adult teenage son has just started university but lives at home as does their daughter who is about to take her GCSE exams and continue on with her A-levels. In these circumstances it would not be reasonable to expect the whole family to move to India, neither would it be reasonable to expect the family to split.
37. Overall therefore we are satisfied that the appellants cannot receive the required level of care in India. Given the first appellant’s rapidly progressing dementia we find that their emotional and psychological needs would not be met without the sponsor and that it would not be reasonable to expect him to move to India. In all the circumstances therefore we find that the appellants fulfil the requirements of E-ECDR.2.5.
38. Even if we were wrong about that and it were the case that full time nursing assistants would be able to provide the appellants with the required level of care in India we are not satisfied that doing so would be affordable. We have accepted the sponsor’s assessment that the cost of providing such care in Jhansi would be £2,798 per month. We also recognise that this figure does not include the additional price of medicines and Doctors visits. Although the sponsor is in a well-paid job and his wife is working at a Special Educational Needs school, we are not satisfied that such a monthly outgoing would be affordable to them. The sponsor described to us how the money he had set aside in India for his parents’ care has already all been spent on medical expenses and the equipment required for his parents’ care meaning that he is now having to spend the savings he has in the United Kingdom. In those circumstances we find that spending the £2,798 monthly figure for the care of his parents in India would be unsustainable for the sponsor and his family. We reach this conclusion having accepted as credible the evidence of the sponsor and his wife about the financial support they are already providing to other family members who are dependent on that support and that they can provide the personal level of care in the UK to the appellants themselves at no additional cost.
Conclusion
39. Bringing this all together, we conclude that notwithstanding the stringent requirements they represent, the appellants do fulfil all the eligibility requirements for being granted entry clearance as Adult Dependant Relatives. In particular we find that their age and illness mean they require long-term personal care to perform everyday tasks. We also find that they are unable to obtain the required level of care in the country in which they are living both because their emotional and psychological needs cannot be met without the presence of the sponsor and because the cost of the care they would require in India would not be affordable.
40. We repeat that it has not been suggested that the other requirements for Adult Dependant Relatives are not met. In particular we recognise that the sponsor and his wife have provided undertakings that they will be responsible for the appellants maintenance, accommodation and care for a period of five years; that the evidence establishes that cost of medical care for the appellants in the United Kingdom will be provided through the sponsor’s work based health insurance scheme; and that the sponsor has arrangements in place to ensure he and his family are able to provide his parents with 24 hour supervision within the family home in London.
41. In all the circumstances therefore we are satisfied that the appellants meet the requirements of the Immigration Rules for being granted entry clearance and accordingly that the refusal of their applications involved a disproportionate interference with their Convention rights.
Notice of Decision
The human rights appeal of the first appellant is ALLOWED
The human rights appeal of the second appellant is ALLOWED

Luke Bulpitt

Judge of the Upper Tribunal
Immigration and Asylum Chamber

15 July 2025