Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2024-004798
UI-2024-004799

First-tier Tribunal No: HU/51962/2024
HU/51963/2024
LH/05797/2024
LH/05796/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:

On 6th of June 2025

Before

UPPER TRIBUNAL JUDGE KAMARA

Between

RAJ TAMANG
SARIKA TAMANG
(NO ANONYMITY ORDER MADE)
Appellant
and

THE ENTRY CLEARANCE OFFICER
Respondent

Representation:
For the Appellant: Ms S Ferguson, counsel instructed by Shan & Co
For the Respondent: Ms J Isherwood, Senior Home Office Presenting Officer

Heard at Field House on 27 May 2025

DECISION AND REASONS
Introduction
1. The appellants have been granted permission to appeal the decision of the First-tier Tribunal in which their appeal against a decision dated 13 February 2024, refusing leave to enter the United Kingdom as the dependent children of a British citizen was dismissed following a hearing which took place on 30 August 2024.
2. Permission to appeal was granted by the First-tier Tribunal on 17 October 2024.
Anonymity
3. No anonymity direction was made previously, and there is no reason for one now.
Factual Background
4. The appellants are nationals of Nepal who are now aged nineteen and eighteen respectively. On 14 December 2023, while still minors, they applied for entry clearance to join their mother in the United Kingdom for settlement. Those applications were refused as it was not accepted that the appellants’ mother was solely responsible for their upbringing nor that they would be adequately maintained and accommodated in the United Kingdom.
The decision of the First-tier Tribunal
5. The hearing before the First-tier Tribunal was conducted remotely, with the sponsor giving evidence on behalf of the appellants and submissions being given by both representatives. The judge decided the matters in issue in favour of the respondent and considering Article 8 ECHR, concluded that there would be no unjustifiably harsh consequences to the appellants as a result of the decisions refusing entry clearance.
The appeal to the Upper Tribunal
6. The grounds of appeal focussed on three aspects relating to procedural fairness which are summarised here.

(i) The audio quality had an adverse impact on the sponsor’s ability to give her best evidence.
(ii) A failure to consider evidence and/or reconcile conflicts.
(iii) A misdirection regarding the test for sole responsibility/failure to take evidence into account.
7. Permission to appeal was granted on the basis sought.
8. The respondent filed a Rule 24 response dated 23 October 2024, in which the appeal was opposed. Reliance was placed on the minute of the Presenting Officer which gave no indication that an issue with the quality of the audio affected the sponsor’s answers.
9. When this matter came before me on a previous occasion, an adjournment was necessary as the representatives had not listened to the recording of the hearing. In the intervening period, both representatives attended Field House to hear the recording and an agreed note of the hearing was provided to the Upper Tribunal.
The error of law hearing
10. The matter comes before the Upper Tribunal to determine whether the decision contains an error of law and, if it is so concluded, to either re-make the decision or remit the appeal to the First-tier Tribunal. In addition to the note of the recording, a bundle was submitted by the appellant containing, inter alia, the core documents in the appeal, including the appellant’s and respondent’s bundles before the First-tier Tribunal.
Discussion
11. The first complaint in the grounds is that the audio quality had an adverse impact on the sponsor’s ability to give her best evidence. Ms Ferguson was not able to persuade me that there was any error in the judge’s handling of the hearing. The judge’s summary of the connectivity issues is accurately summarised at [6] of the decision and reasons, where the judge acknowledges there were some issues with the quality of the video evidence which were eventually resolved by the sponsor moving to a different room. The judge also engages with counsel’s concerns that objections she had raised had not been noted.
12. It is notable from the recording that no complaint was made after the sponsor moved to a room with good quality video and audio reception and nor did Ms Ferguson raise any further concerns during her closing submissions before the First-tier Tribunal. While it is possible that the interruptions to the proceedings had an adverse impact on the sponsor’s evidence, no statement from the sponsor has been provided from her regarding this and nor did Ms Ferguson make coherent submissions to that effect.
13. The third section of the grounds contains a long list of concerns. The first of which is a criticism of the judge for her approach to the evidence relating to the question of sole responsibility. In particular, the judge at [10] records that the sponsor did not state that she took the major decisions in the appellants’ lives and did not elaborate as to how she exercised parental responsibility. A consideration of all the evidence including the appellants’ witness statements reveals an absence of examples of the type of major decisions it is said that the sponsor took. Furthermore, the sponsor was not asked in examination in chief to elaborate on this crucial aspect of the case. Ms Ferguson accepted that the decisions said to have been taken by the sponsor were not spelt out in the evidence but could be inferred from the totality of the material before the judge. While another judge might have taken that approach, it cannot be said that this judge erred in noting the absence of specific evidence to support the sponsor’s claim to sole responsibility.
14. A further alleged error referred to in the third part of the grounds, in relation to the sponsor’s financial position is, however, made out. At [30] of the decision, the judge raised a number of concerns as to the evidence of the sponsor’s self-employment which postdated the decision letter and concluded that the financial requirement was not met. None of these points had been raised on behalf of the respondent either in the respondent’s review or at any point during the hearing. Indeed, the respondent’s submission was that should the information in the sponsor’s documents be correct, she met the financial requirements for the 6-month period prior to the date of the visa applications. While it was open to the judge to make findings on the reliability of these documents, fairness dictated that these concerns be ventilated at the hearing to enable the sponsor to address them in evidence and/or for submissions to be made.
15. In considering whether the aforementioned error was material to the outcome of the appeal, Ms Ferguson made a persuasive point which ties in with the complaint in the second ground that the judge failed to resolve conflicts in the evidence, such that findings which went to the credibility of the claim to sole responsibility were unreliable. One example of a conflict related to the education of the appellants. At [12], the judge found there to be a lack of explanation as to how the appellants attended the same school while moving to a remote rural location, noting an absence of evidence from the school. I accept that the judge’s understanding of the issue was confused and not based on the sponsor’s oral evidence nor the documentary evidence which was provided from the school. I further accept that the judge’s misunderstanding of this issue was not apparent at the time of the hearing but emerged only in the decisions and reasons.
16. Other matters are referred to in the grounds which are of a similar nature and which suggest that perhaps the persistent connectivity issues had an adverse effect on the judge’s understanding of the oral evidence.
17. I am therefore persuaded that the judge materially erred in relying on issues not raised at the hearing and in failing to fairly resolve conflicts in the evidence. None of the judge’s findings are preserved.
18. Neither of the parties had any strong view as to the venue of any remaking. Applying AEB [2022] EWCA Civ 1512 and Begum (Remaking or remittal) Bangladesh [2023] UKUT 00046 (IAC), I carefully considered whether to retain the matter for remaking in the Upper Tribunal, in line with the general principle set out in statement 7 of the Senior President’s Practice Statements. I took into consideration the history of this case, the nature and extent of the findings to be made as well as the fact that the nature of the errors of law in this case meant that the appellants were deprived of fair hearing. I further consider that it would be unfair for either party to be unable to avail themselves of the two-tier decision-making process and therefore remit the appeal to the First-tier Tribunal.

Notice of Decision
The making of the decision of the First-tier Tribunal did not involve the making of an error on a point of law.
The decision of the First-tier Tribunal is set aside.
The appeal is remitted, de novo, to the First-tier Tribunal to be reheard, in a face to face hearing, by any other judge.

T Kamara

Judge of the Upper Tribunal
Immigration and Asylum Chamber

28 May 2025