Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2024-004565

First-tier Tribunal Nos: HU/53778/2022

THE IMMIGRATION ACTS

Decision & Reasons Issued:

28th February 2025

Before

UPPER TRIBUNAL JUDGE GREY
DEPUTY UPPER TRIBUNAL JUDGE DAYKIN

Between

MILU RAI
Appellant
And

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr A. Kashif, Legal Representative from Bond Adams LLP
For the Respondent: Mrs A. Nolan, Senior Home Office Presenting Officer

Heard at Field House on Tuesday 13 February 2025

DECISION AND REASONS
Background
1. The appellant was born in 1975. She is a national of Nepal. She is the daughter of a former Gurkha soldier. On 14 January 2021 she applied for entry clearance as the adult dependent child of her mother.
2. By a decision dated 15 April 2021 the respondent refused the appellant’s application on the basis that the appellant had failed to demonstrate that she was financially and emotionally dependent on her mother beyond that normally expected between a parent and adult child.
3. The appellant appealed the respondent’s refusal which was heard at Birmingham IAC on 25 July 2024. First-tier Tribunal Judge Chamberlain (‘the Judge’) dismissed the appeal in a decision promulgated on 31 July 2024.
4. Following an error of law hearing, heard by Upper Tribunal Judge Grey and Deputy Upper Tribunal Durance on 10 December 2025, the decision of the First-tier Tribunal was set aside for the reasons set out in the determination of the Upper Tribunal promulgated 17 January 2025 annexed to this decision. In summary the First-tier Tribunal Judge erred by failing to provide adequate reasons in respect of her conclusion on the absence of family life and conflated the applicable tests under Article 8(1) and 8(2) (UT determination paragraphs 14-26).
5. The appeal was retained by the Upper Tribunal for the decision to be re-made. The findings at [13], [14] and [15] of the First-tier Tribunal decision were preserved, so too was the finding that in the event that the appellant is able to demonstrate that Article 8(1) is engaged, the respondent’s decision would amount to a disproportionate interference with family life taking into account the caselaw regarding the historic injustice to the Gurkhas (UT determination paragraph 27). The only issue for the Upper Tribunal to resolve was whether Article 8(1) is engaged.
6. The appellant filed and served updated evidence in advance of the rehearing which took place on 13 February 2025. We heard oral evidence from the sponsor with the assistance of a Nepali interpreter. The parties made their submissions, and we indicated at the conclusion of the hearing that we were satisfied that family life was established and that our decision would be to allow the appeal with written reasons to follow, which we set out below.
Preserved findings of fact
7. The preserved paragraphs [13], [14] and [15] of the First-tier Tribunal state as follows:
“13. I find that the sponsor has been living in the United Kingdom since December 2016. I find that prior to this she was living with the appellant. The appellant set out in her witness statement how she had married. However, her husband had died 20 years ago. At that point, she was kicked out by her parents-in-law and she returned to live at the family home. The appellant has no contact with her children who remained with her parents-in-law. There appear to be two conflicting documents provided, one which states that her husband died in 2004 (177PDF) and one in 2005 (176PDF). Nevertheless, I accept that the appellant’s husband died about 20 years ago and that she returned to the family home.
14. I find that the appellant remains living in the family home with her three brothers and sister. I find that this home is owned by the sponsor. I find that the appellant’s accommodation is paid for by the sponsor. The appellant set out in her statement that her brother has access to the sponsor’s bank account in Nepal into which their father’s pension is paid. The appellant provided the bank statements which show that the money is withdrawn by her brother every month (190PDF to 195PDF). The appellant and sponsor’s evidence is that this is used to pay for the appellant’s and her siblings’ expenses. The appellant said that she and her siblings did some seasonal work for the neighbours, for which they are sometimes paid in money, but sometimes with produce. She said that this was not enough to survive on.
15. The appellant left school after grade 8 which is when she married. The marriage registration certificate is contradictory as it states that she was 17 when she married, but on 12 February 1991, the date of the marriage, she would have been only 15 years old (162PDF). I accept that she married young and that she is not well educated. I accept her evidence that the only work she has done is housework and work in the fields. I find that she is not employed. I find that she is financially dependent on the sponsor. I find that this support is real, effective and committed.”
Further evidence heard by the Upper Tribunal
8. The sponsor, Meera Rai, adopted her witness statement dated 29 January 2025. Within that statement she explained that the appellant’s living and financial situation remains the same but that she has not done any seasonal work in the last few months. She described being very close with her daughter, her daughter had been through a lot at a young age and that people treat her differently as a result, which bothers her. They talk on Messenger and share everything with each other. The sponsor visited her children in Nepal between 11 July and 23 July 2024.
9. In cross-examination the sponsor explained that she speaks with her daughter frequently, almost daily and that they talk about everyday things. When it was put to her that the call logs provided do not show daily calls, the witness clarified (and also in answer to a question from the Bench) that her calls have increased with frequency as she has learned to use her mobile phone and that she also sometimes speaks with the appellant on her other children’s phones, as they all live together.
10. The sponsor explained that she has a son and a daughter who live in India but that she is estranged from her daughter and does not know her whereabouts. Her son in India does not support his siblings that remain in Nepal, so the sponsor has to because there is no-one else. The sponsor explained that the appellant lives with her three other siblings who also do seasonal work when it is available, and they all contribute to the family pot but it is not enough, so the sponsor has to support them.
Submissions
11. Mrs Nolan for the respondent submitted that the burden was on the appellant to show that Article 8(1) was engaged but that she had failed to discharge that burden. The claims of two-way emotional support were not made out. The majority of the call records show calls of 1–3-minute duration. There was an inconsistency in the evidence since the sponsor had previously said to the First-tier Tribunal judge that she spoke to the appellant once or twice a week but is now saying they speak daily. Mrs Nolan acknowledged that it would be appropriate for us to take the sponsor’s age into account when assessing her evidence but the increased frequency in calls was not reflected in the call logs or her witness statement at page 80, paragraph 11 (which is a reference to her previous witness statement dated 6 February 2024). Therefore, Mrs Nolan submitted that in the absence of documentary evidence of contact, there is no evidence of emotional support. Her submission in this regard was bolstered by the sponsor’s inability to provide details about the content of their conversations. Although noting the preserved findings about financial dependency, Mrs Nolan submitted that the appellant lives with her other siblings, they pool their finances, and they are a family unit.
12. Mr Kashif for the appellant submitted that dependency is not the legal test but rather the test was whether there was real, effective and committed support. It is already accepted that there is financial support, which is real, effective and committed support. By reference to the authorities of Rai v Entry Clearance Officer [2017] EWCA Civ 320 and Kugathas v Secretary of State for the Home Department [2003] EWCA Civ 31, it was a significant factor if there was family life in Nepal before the sponsor left and that the appellant is continuing to live in the sponsor’s home was a strong indicator of family life continued. Mr Kashif submitted that it was immaterial if the sponsor and appellant had contact every day or twice a week, emotional support was established on either view. The call logs were extracts demonstrating the contact between them and did not purport to be a complete record, there is some documentary evidence of contact and Mr Kashif submitted that it was immaterial as to how long and how often it was. He invited us to conclude that there was family life.
Discussion
13. We have had regard to the relevant legal principles examined by the Court of Appeal in Rai v Entry Clearance Officer, New Delhi [2017] EWCA Civ 320:
“16.     The legal principles relevant to this issue are not controversial.
17.     In Kugathas v Secretary of State for the Home Department [2003] EWCA Civ 31, Sedley L.J. said (in paragraph 17 of his judgment) that "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". Arden L.J. said (in paragraph 24 of her judgment) that the "relevant 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". She acknowledged (at paragraph 25) that "there is no presumption of family life". Thus "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". She added that "[such] ties might exist if the appellant were dependent on his family or vice versa", but it was "not … essential that the members of the family should be in the same country". In Patel and others v Entry Clearance Officer, Mumbai [2010] EWCA Civ 17, Sedley L.J. said (in paragraph 14 of his judgment, with which Longmore and Aikens L.JJ. agreed) that "what may constitute an extant family life falls well short of what constitutes dependency, and a good many adult children … may still have a family life with parents who are now settled here not by leave or by force of circumstance but by long-delayed right".
18.     In Ghising (family life – adults – Gurkha policy) the Upper Tribunal accepted (in paragraph 56 of its determination) that the judgments in Kugathas had been "interpreted too restrictively in the past and ought to be read in the light of subsequent decisions of the domestic and Strasbourg courts", and (in paragraph 60) that "some of the [Strasbourg] Court's decisions indicate that family life between adult children and parents will readily be found, without evidence of exceptional dependence". It went on to say (in paragraph 61):
"61. Recently, the [European Court of Human Rights] has reviewed the case law, in [AA v United Kingdom [2012] Imm. A.R.1], finding 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. …".
The Upper Tribunal set out the relevant passage in the court's judgment in AA v United Kingdom (in paragraphs 46 to 49), which ended with this (in paragraph 49):
"49. An examination of the Court's case-law would tend to suggest that the applicant, a young adult of 24 years old, who resides with his mother and has not yet founded a family of his own, can be regarded as having "family life"."
19.     Ultimately, as Lord Dyson M.R. emphasized when giving the judgment of the court in Gurung (at paragraph 45), "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". In some instances "an adult child (particularly if he does not have a partner or children of his own) may establish that he has a family life with his parents". As Lord Dyson M.R. said, "[it] all depends on the facts". The court expressly endorsed (at paragraph 46), as "useful" and as indicating "the correct approach to be adopted", the Upper Tribunal's review of the relevant jurisprudence in paragraphs 50 to 62 of its determination in Ghising (family life – adults – Gurkha policy), including its observation (at paragraph 62) that "[the] different outcomes in cases with superficially similar features emphasises to us that the issue under Article 8(1) is highly fact-sensitive".
20.     To similar effect were these observations of Sir Stanley Burnton in Singh v Secretary of State for the Home Department [2015] EWCA Civ 630 (in paragraph 24 of his judgment):
"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."” (emphasis added)
14. We have been further guided by the more recent encapsulation of those principles in Mobeen v Secretary of State for the Home Department [2021] EWCA Civ 886:
“45.     Whether or not family life exists is a fact-sensitive enquiry which requires a careful assessment of all the relevant facts in the round. Thus it is important not to be overly prescriptive as to what is required and comparison with the outcomes on the facts in different cases is unlikely to be of any material assistance.
46.     However, the case law establishes clearly that love and affection between family members are not of themselves sufficient. There has to be something more. Normal emotional ties will not usually be enough; further elements of emotional and/or financial dependency are necessary, albeit that there is no requirement to prove exceptional dependency. The formal relationship(s) between the relevant parties will be relevant, although ultimately it is the substance and not the form of the relationship(s) that matters. The existence of effective, real or committed support is an indicator of family life. Co-habitation is generally a strong pointer towards the existence of family life. The extent and nature of any support from other family members will be relevant, as will the existence of any relevant cultural or social traditions.” (emphasis added)
15. In addition to the preserved findings of fact, we further find that the appellant and the sponsor speak to each other on a daily basis, providing each other emotional support. We accept that due to the frequency of their contact the duration of their calls is relatively short but find that they check in with each other about their daily lives and that is more than what we would expect of normal emotional ties between an adult child and a parent. We further accept that as the sponsor has become more familiar with using a smart phone, she has increased the frequency of her contact with the appellant and her other children with whom the appellant lives. It seems perfectly plausible to us that the sponsor would speak with all of her children on whichever phone was being used, so that not every occasion that the sponsor actually speaks to the appellant would show up on the call logs between just their two phones.
16. In conclusion, we find that there was a family life between appellant and the sponsor before the sponsor left Nepal and that has endured to present day. The reasons are that although the appellant had married when she was young and had children, upon the death of her husband about 20 years ago, she was kicked out by her parents-in-laws and had no further contact with her children who remained with her in-laws. The appellant returned to the family home and resumed living together with the sponsor in a home owned by the sponsor and was financially dependent upon her. Therefore, even if during the period of her marriage, family life had ceased to exist, family life resumed upon her return to the family home. Family life is not static and depends upon the facts.
17. The appellant continues to live in that home as a single woman and remains financially dependent upon the sponsor for essential living expenses. As the Judge found, this is real, effective and committed support.
18. We further conclude that the appellant’s relationship with the siblings she lives with does not displace the fact of a family life with her mother. All the siblings are in a similar situation in that they are accommodated and financially supported by the sponsor, none of them can provide enough resources for themselves individually or collectively. There is no other support. In addition, although not strictly necessary, in light of the judge’s finding of real, effective and committed support, the emotional support that goes both ways between the appellant and the sponsor only serves to strengthen our conclusion that family life beyond the normal emotional ties between an adult child and parent is established in this case.
19. Since Article 8 (1) is engaged, pursuant to the preserved finding of the First-tier Tribunal, the respondent’s refusal decision is a disproportionate interference with family life.

Notice of Decision
The appellant’s appeal is allowed on Article 8 human rights grounds.

E Daykin

Deputy Judge of the Upper Tribunal
Immigration and Asylum Chamber

25 February 2025

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case Nos.: UI-2024-004565

First-tier Tribunal Nos: HU/53778/2022

THE IMMIGRATION ACTS

Decision & Reasons Issued:

…………………………………

Before

UPPER TRIBUNAL JUDGE GREY
DEPUTY UPPER TRIBUNAL JUDGE DURANCE

Between

MILU RAI
Appellant
And

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr A Kashif, Counsel instructed by Bond Adams LLP
For the Respondent: Mrs A Nolan, Senior Home Office Presenting Officer

Heard at Field House on Tuesday 10 December 2024

DECISION AND REASONS
Background
1. The appellant was born in 1975. She is a national of Nepal. She is the daughter of a former Gurkha soldier. On 14 January 2021 she applied for entry clearance as the adult dependent child of her mother.
2. By a decision dated 15 April 2021 the respondent refused the appellant’s application on the basis that the appellant had failed to demonstrate that she was financially and emotionally dependent on her mother beyond that normally expected between a parent and a child.
3. The appellant appealed the respondent’s refusal which was heard at Birmingham IAC on 25 July 2024. First-tier Tribunal Judge Chamberlain (“the judge”) dismissed the appeal in a decision promulgated on 31 July 2024.
Immigration Judge Decision
4. The judge noted at the outset that the disputed issue to determine was whether there was a family life between the sponsor and the appellant for the purposes of Article 8 ECHR. It was noted at the outset that if there was a family life that the matter should be allowed on the basis of the “historic injustice” relating to Gurkhas.
5. In dismissing the appeal, Judge Chamberlain found as follows :-
a) The sponsor’s evidence was consistent with the “witness evidence” (para 10)
b) The evidence did not support the claimed level of emotional support between the appellant and the sponsor, nor the claimed level of need due to the sponsor’s health problems (para 10).
c) The appellant’s husband died some 20 years ago and the appellant and the sponsor were living together before the sponsor came to the UK in 2016 (para 13).
d) The appellant’s home is owned by the sponsor (para 14).
e) The appellant is financially dependent upon the sponsor (para 15).
f) The sponsor has only visited Nepal three times since 2016 (para 18).
g) The sponsor has not shown that she needs the appellant to be present in the UK due to her health needs (para 20).
h) There is no family life between the appellant and the sponsor for the purposes of Article 8 (para 21).
i) If there was a family life between the appellant and the sponsor, the respondent’s decision would have been disproportionate breach of Article 8. (para 22).
Grounds of appeal
6. It is argued that the judge failed to give proper weight to the supporting evidence.
7. It is argued that there is an inconsistency in the judge’s approach in finding that there is financial support but that there is not emotional support.
8. It is argued that there are no adequate reasons provided for the decision which has been reached in relation to emotional dependency and the absence of family life.
9. It is argued that the judge misdirected herself in law by considering necessity, such as the medical needs of the sponsor, at the Article (8)(1) stage rather than the Article (8)(2) stage.
Grant of permission
10. Permission was granted on 4 October 2024 by First-tier Tribunal Judge Turner. The basis for the grant of permission was that (i) the judge had misapplied the test of Kugathas and that (ii) the IJ had looked at the medical needs when evaluating family life whereas this was an issue to be considered under Article 8(2).
Oral argument
11. Before the Tribunal there was a bundle of 144 pages. There was no rule 24 notice from the respondent.
12. Mr Kashif argued that there was a disconnect between the findings at paragraph 10 of the decision and the Court of Appeal decision of Rai, specifically paragraphs 13 and 39. He argued that once the financial test was met that there was an element of emotional dependency. He highlighted that the judge raised no credibility issues in relation to the evidence of the sponsor and, having found that the appellant was financially supported by the sponsor, had failed to adequately reason why she did not accept the emotional support.
13. Ms Nolan argued that the judge’s findings indicated that there was a sound basis for the findings in respect of there being a lack of emotional support. She argued that this was supported by the fact that there had only been three visits to Nepal since 2016. She agreed that the dependency of necessity was an error of law. She argued that the judge’s findings in respect of the sponsor’s claimed level of need was not a material error of law.
Error of Law
14. In Kugathas [2003] EWCA Civ 31, it was held that dependency needed to be considered as “support”. If one added the adjectives “real” or “committed” or “effective”, then this indicated the irreducible minimum of what family life requires. Sedley LJ noted that where there was a parent / child relationship that this may actually supersede the need for a demonstrable level of support (c.f. para 18).
15. Arden LJ indicated that 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 and where there was a dependency, this was likely to be an exceptional circumstance (c.f. para 25).
16. At paragraph 21, the judge noted as follows: -
“while I find that the appellant has shown that she is financially dependent on the sponsor, I find that the evidence does not show that the emotional dependence between her and the sponsor is effective or committed. The appellant is 48 years old and is living with her adult siblings. She has failed to show either that she is emotionally dependent on her mother, or that her mother is emotionally dependent on her. I find that she has failed to show that there is a family life for the purposes of article 8(1)”.
17. At paragraph 20, the judge stated as follows: -
“the sponsor said she had problems due to her poor health, including difficulty walking, getting up and sitting down, a burning in her eyes, and stomach ache. However, she said she had no help at home. She said that she needed help to go to appointments and that her neighbours helped…. she did not provide any medical evidence, or any evidence that of her claimed level of need. She had just returned from a trip to Nepal. She is not shown that she needs the appellant to be present in the United Kingdom due to her health needs” (emphasis added).
18. In paragraph 13 of Rai v ECO [2017] EWCA Civ 320, the following was stated by the judge (my emphasis):-
"20. The Gurkha father and his wife remained in Nepal from 1971 until their settlement in the UK in 2010. The decision to settle in the UK was not compulsory but a decision voluntarily undertaken by the Gurkha father and his wife and a decision taken in light of knowledge of their own personal and family circumstances which clearly they would know rather better than either myself or any other decision maker. At the time of his discharge from the army in 1971 it would seem that the father had two children born in 1969 and 1971 namely Mrs Prem Rai and Mr Sukraj Rai. Those adult children live in Nepal and Malaysia respectively. Thereafter the father and mother had four further children with this Appellant being the youngest born on 1st January 1986. Of those four children the eldest born in 1975 lives in Malaysia, the second born in 1979 lives in India, the third born in 1982 lives in Dharan in Nepal and the Appellant born in 1986 lives at the family home also in Nepal. On the basis of the father's evidence all those children are either working or married with the exception of the Appellant. He lives in the family home where the other adult children were born and brought up together with the father and mother.
23. The movement of the father and mother to the UK as I have indicated above was as recent as 2010 and at a time when the father was in his mid-70's. It was also a move taken at a time when they were clearly aware of the circumstances of their youngest son in terms of his lack of employment and the fact that he would be left on the face of it alone in the family home. That did not deter them from settling in the UK despite having lived for 45 years in Nepal and making the move at a relatively late stage in their lives. It is not unreasonable to presume that in terms of the welfare of their son they would not have made the move if they had any real concerns. It could not be said that settlement of their son in the UK would automatically follow nor that in any event there would not be a delay in that occurring. The Appellant is 28 years old and there is no evidence indicating any medical difficulties or concerns. Whilst he has a reliance upon his parents for income that does not place him in any particular unusual category either within this country or internationally. The concept of emotional dependence beyond the normal that can be assumed between parents and adult children is not easy to quantify. However as I have indicated above the willingness of the parents to leave when set against all the factors referred to above is some indication that they viewed their son to be able to exist independently, emotionally, physically or otherwise so long as he was provided with money unless or until he obtained employment or gained financial independence through some other means.
25. Finally it is not a case where the Appellant has any evidenced difficulties, mental or physical, that would indicate a need for him to be with his parents.
19. Paragraph 38 of Rai stated as follows:-
“Throughout his findings and conclusions with regard to article 8(1), the Upper Tribunal judge concentrated on the appellant's parents' decision to leave Nepal and settle in the United Kingdom, without, I think, focusing on the practical and financial realities entailed in that decision. This was, in my opinion, a mistaken approach”.
20. At paragraph 39, Lindblom LJ stated as follows: -
“the Upper Tribunal judge referred repeatedly to the appellant's parents having chosen to settle in the United Kingdom, leaving the appellant in the family home in Nepal. Each time he did so, he stressed the fact that this was a decision they had freely made: “…..not compulsory but….. voluntarily undertaken”…. But that in in my view, was not to confront the real issue under article 8(1) in this case, which is whether, as a matter of fact, the appellant had demonstrated that he had a family life with his parents, which had existed at the time of their departure to settle in the United Kingdom and had endured beyond it, notwithstanding their having left Nepal when they did”.
21. Paragraph 41 of Rai stated as follows: -
Those circumstances of the appellant and his family, all of them uncontentious, and including – perhaps crucially – the fact that he and his parents would have applied at the same time for leave to enter the United Kingdom and would have come to the United Kingdom together as a family unit had they been able to afford to do so, do not appear to have been grappled with by the Upper Tribunal judge under article 8(1). In my view they should have been. They went to the heart of the matter: the question of whether, even though the appellant's parents had chosen to leave Nepal to settle in the United Kingdom when they did, his family life with them subsisted then, and was still subsisting at the time of the Upper Tribunal's decision. This was the critical question under article 8(1). Even on the most benevolent reading of his determination, I do not think one can say that the Upper Tribunal judge properly addressed it.
22. At paragraph 10 of the decision, the following was noted: -
“I find that the evidence provided does not support the claimed level of emotional support between the appellant and sponsor, nor the claimed level of need due to the sponsors health problems”.
23. Putting to one side the decision in Rai, we find that this was inadequate as a finding of fact. It is opaque as to how the judge has reached this specific decision. We consider that the judge needed to explain why she had reached this decision with reasons that would explain to the losing party the basis of the decision. In the absence of reasons, the appellant will struggle to comprehend why they have not succeeded. The reality is that this is a finding of fact which fails to provide analysis as to how that decision has been reached. We find that the judge erred in failing to provide adequate reasons in respect of her conclusion on the absence of family life.
24. We further note that at paragraph 10, the judge has considered the necessity test under Article 8(1) when this should have been a consideration under Article 8(2) thereby conflating the assessment of two disctinct issues. We note what Lindblom LJ stated in Rai at paragraph 39 was correct in the instant case and that the introduction of a necessity test was at odds with what the Court of Appeal had noted in respect of the approach adopted by the UKUT in this regard. We noted that Mrs Nolan on behalf of the respondent conceded that this was an error of law but submitted that it was not material.
25. The question to determine (in respect of materiality) is whether the error of law would have made a difference to the outcome of the decision. We find that the judge approached the question of necessity under Article 8(1) and rejected family life under this heading. In our judgment, this is plainly material as the findings under Article 8(1) were based on error.
26. On this basis, we consider that there were material errors of law.
27. We agree with the representatives that the correct approach is for the matter to be considered by the Upper Tribunal once fresh evidence has been lodged and considered due to the additional fact-finding required. The findings at [13], [14] and [15] of the decision are unchallenged and are preserved. We also preserve the finding that in the event the appellant is able to demonstrate that Article 8(1) is engaged, the respondent’s decision would amount to a disproportionate interference with family life taking into account the caselaw regarding the historic injustice to the Gurkhas.
28. The issue to determine by the Upper Tribunal is whether Article 8(1) is engaged on the basis of family life between the appellant and the sponsor.
Directions
29. The following directions are made in advance of the hearing: -
a) The decision will be remade in the Upper Tribunal with the findings identified at [27] are preserved.
b) The appeal will be listed for hearing on the first available date after 10 January 2025 with a time estimate of two hours.
c) There shall be a Nepali interpreter provided for the rehearing.
d) The Appellant’s solicitor will lodge a r.15(2) application for fresh evidence and an indexed and paginated consolidated bundle comprising that evidence by 4.00 p.m. on 10 January 2025.

Notice of Decision
The appellant’s appeal is allowed. The decision of Judge Chamberlain is involved the making of an error of law and is set aside.

A. Durance

Deputy Judge of the Upper Tribunal
Immigration and Asylum Chamber

3 January 2025