Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2024-004547

First-tier Tribunal No: HU/63204/2023
LH/02971/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:

28th April 2025

Before

UPPER TRIBUNAL JUDGE KAMARA
DEPUTY UPPER TRIBUNAL JUDGE RAE-REEVES

Between

Mr HITA GURUNG
(NO ANONYMITY ORDER MADE)
Appellant
and

THE ENTRY CLEARANCE OFFICER, SHEFFIELD
Respondent

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

Heard at Field House on 9 April 2025

DECISION AND REASONS

Introduction

1. The appellant is a Nepalese national born on 31 March 1981. He applied on 3 September 2023 for entry clearance to settle in the UK as a dependent adult child of his sponsor who is his mother, and the widow of a Gurkha discharged prior to July 1997. His father died on 07 March 2010.

2. His application was refused by the Respondent on 13 October 2023 because he did not demonstrate that he was financially and emotionally dependent upon his mother beyond that normally expected between a parent and adult child. His appeal against that decision came before First-tier Tribunal Judge Napier (“the Judge”) on 15 May 2024. In a determination promulgated on 22 May 2024 the Judge dismissed his appeal, and it is this decision which is now challenged by the appellant.

3. Permission to appeal was granted by Upper Tribunal Judge Keith on 18 October 2024.

4. The appeal came before the Upper Tribunal to determine whether the decision contains an error of law, and we extend thanks to both representatives for their submissions. Ms McCarthy was given more time to acquaint herself with the consolidated bundle and was content to proceed. At the end of the hearing, we reserved our decision which we now set out.

The decision of the First-tier tribunal

5. The Judge correctly directs himself that an appellant needs to show real, committed or effective support but that dependency is not the only requirement (Kugathas v SSHD [2003] EWCA Civ 31, Patel v ECO (Mumbai) [2010] EWCA Civ 17). He reminds himself of paragraphs 16 to 20 in the judgment of Lindblom LJ in Rai v ECO (New Delhi) [2017] EWCA Civ 320 and identifies the need to find family life at the point of the parent(s) leaving Nepal and at the date of the hearing.

6. In a clear and methodological approach, he sets out his reasons why Article 8 is not engaged. He concludes that his situation is one of financial dependency and normal emotional ties and is not enough to engage Article 8.

Grounds of appeal

7. Ms McCarthy relies on the second Grounds of Appeal dated 2 October 2024. The first ground is that having concluded that there was family life between the appellant and his sister, Om, who died on 1 February 2024 before the hearing of the appeal, the Judge should have considered the Article 8 rights of the rest of the family and their family life as a unit. As the family all applied together, family life existed at the time of application and after a sudden death it cannot be said that family life suddenly ceased. The Article 8 rights of each affected family member should have been considered. The appellant relies upon Beoku-Betts (FC) (Appellant) v Secretary of State for the Home Department (Respondent) [2008] UKHL 39 to support the submission that there is only one family life, and each affected member must be considered.

8. Secondly, the Judge erred in failing to take into account the family’s history and other relevant considerations. The Grounds lists factors which if ‘properly considered the outcome of the appeal could have been different’.

9. Thirdly the Judge erred in placing undue weight on dependency and that he failed to consider that there is no need for one party to be dependent on the other pursuant to Patel v EC O (Mumbai) (ibid).

10. Fourthly the Judge failed to consider properly the historic injustice including the fact that the appellant’s father had been deprived of the right to settle in the UK on discharge from the army.

Discussion

11. We conclude that the Judge did not make any material errors of law for the reasons set out below.

12. Ground 1 is succinctly stated at paragraph 4 of the Grounds of Appeal, namely that the Judge failed to consider the rights of the rest of the family, and he failed to consider the impact of Om’s death. Ms McCarthy relies on Beoku-Betts for the proposition that a feature of family life is that the rights of all family members must be considered. She specifically drew our attention to the period after the death of Om and submitted that the Judge should have had more focus on applying the test to the unity of family life during that period leading up to the hearing. She submitted that he had not considered the emotional support within the family unit and the distress caused by Om’s death because this would go well beyond the ‘usual’ as the support would have deepened amongst surviving family members. She submitted that such support ought to be enough to engage Article 8.

13. We reject the first ground of appeal. The Judge sets out the appropriate test at paragraph 8 and makes a clear distinction between family life existing at the time of application and at the time of hearing. He expressly refers to Lindblom LJ when he states;

As His Lordship explained, the important question is whether, even though an appellant's parents chose to leave Nepal to settle in the United Kingdom when they did, did family life under Article 8 subsist at that point and is it still subsisting as of the date of hearing.[9]

14. The Judge appears to accept that there was family life when the appellant was caring for his sister. He refers to the possibility as follows;

There may have been some purchase to the submission that the Sponsor was dependent on the Appellant for the care of his sister (which must have been an important part of the Sponsor’s decision to leave them behind and come to the United Kingdom). But again, as of the date of hearing, that element is no longer present and so it cannot assist the Appellant [11 (v) (e)]

15. And then more specifically;

The only area where I would have found Article 8 family life is his relationship with his sister Om. I accept he cared for her during her terminal illness, but I am not persuaded this formed a wider Article 8 family life with the rest of her family because the real and effective support was only between him and her. Sadly, with her passing prior to the hearing, there cannot be Article 8 family life as of the date of hearing [12].

16. It is not clear to us what distinction the Judge was drawing between these two paragraphs. However, the common theme is that on both occasions he draws the temporal distinction between time of departure and the time of the hearing in concluding that such family life cannot assist the appellant as at the latter date. Such a distinction is also clearly made at paragraph 11(v)(d).

17. At [11 (v)(e)] the Judge considers the effect on the sponsor of the appellant’s care for his sister indicating that he was aware that he must consider the rights of all family members. The fact that he appears to reject the family life at [12] demonstrates that it was within his consideration.

18. He directs himself that he must consider the position at the time of departure and at the time of hearing [9]. As noted above, in his analysis he expressly does so. He concludes;

Tying the evidence together, I am not persuaded there is real, committed or effective support in this case beyond the normal ties between adult children and their parents. [11 (vi)]

19. Whilst it may have been helpful for the Judge to address the support between family members following the death in more detail, we conclude that the fact that he did not do so is not an error of law. This is because he has clearly applied the correct test and explicitly differentiated between the past situation and the position at the time of the hearing. The evidence was before him, and he demonstrates that he engaged with it. As stated in AH (Sudan) v SSHD [2007] UKHL 49;

This is an expert tribunal charged with administering a complex area of law in challenging circumstances. To paraphrase a view I have expressed about such expert tribunals in another context, the ordinary courts should approach appeals from them with an appropriate degree of caution; it is probable that in understanding and applying the law in their specialised field the tribunal will have got it right [30]

20. We dismiss the second ground of appeal. Ms McCarthy submits that the Judge did not acknowledge that the disjointed nature of the family history could be due to the historic injustice. In the skeleton argument and in submissions it is asserted that the Judge did not apply the test set out in paragraph 8 to the particular circumstances. We disagree. We consider that the Judge provided detailed and adequate consideration of the factors raised and applies the correct test. The submission that the evidence before him demonstrates, in the appellant’s view, real, effective or committed support is merely a disagreement as to the weight he places on factors. We do not find there to be an error of law.

21. The third ground of appeal is expressed to be that the Judge ‘placed undue weight on dependency’ and ‘the failure to consider that there is no need for one party to be dependent on another’ (Grounds of Appeal paragraphs 16, 19). The Grounds rely on the legal principle in Kugathas v SSHD which is correctly cited and considered by the Judge. We do not accept the submission that he conflated real, effective of effective support with dependency. As Sedley LJ puts it in Kugathas (and quoted in Rai [17];

"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 … the irreducible minimum of what family life implies".[17]

22. It is clear to us that this is the principle relied on by the Judge and we do not accept that he has ‘conflated’ support with dependency. He has considered all factors in an appropriate way with the caveat that follows.

23. Ms McCarthy submits that when considering the decision, the Judge appears to be applying a test of dependency of necessity and that the appellant does not need show that he is unable to work. We accept that an ability to work is not part of the test. However, we reject her submission that the test as articulated at [8] is not applied during his analysis. As stated above the test is correctly identified and his conclusion stated to be based on it. We note that the Judge ultimately found there to be financial dependency. Such a finding renders complaints that he should not have considered the appellant’s ability to work to be immaterial. We do not believe that the reference to his ability to work undermines the Judge’s overall analysis such that his conclusion contains an error of law.

24. In respect of the fourth ground, Ms McCarthy acknowledges that the historic injustice plays a part in Article 8(2) considerations but submits that it should have been looked at during the Judge’s analysis and was not. Specifically, why the family was disjointed as found by him. We do not accept this ground. It is not necessary for the Judge to overtly address the historic injustice as part of his analysis of whether article 8(1) is triggered. His finding that the family unit was disjointed was a finding that he was entitled to reach on the basis of the evidence before him. It was only one of many factors that led him to the conclusion that he reached.

Notice of Decision

The decision of the First-tier Tribunal contains no material error of law and the decision will stand.
The appellant’s appeal remains dismissed.

V Rae-Reeves

Judge of the Upper Tribunal
Immigration and Asylum Chamber
10/04/2025