Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2024-004812

First-tier Tribunal No: HU/56401/2023

THE IMMIGRATION ACTS

Decision & Reasons Issued:

20th June 2025

Before

UPPER TRIBUNAL JUDGE RUDDICK
DEPUTY UPPER TRIBUNAL JUDGE RHYS-DAVIES

Between

SUJINDRA RAI
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr. M. West, instructed by Gurkha Solicitors Limited
For the Respondent: Mr Lawson, Senior Home Office Presenting Officer

Heard at Cardiff Civil Justice Centre on 9 June 2025

DECISION AND REASONS
1. This is an appeal about the extent of the UK’s obligations towards the family members of retired Gurkha soldiers who were unjustly denied the right to settle in the UK at the end of their service. In particular, it raises the question of which adult children of retired Gurkhas must be permitted to settle in the UK.
Background
2. The appellant is a citizen of Nepal born in 1972. His late father served in the Brigade of Gurkhas from September 1952 until April 1968. His service was recorded as “exemplary” and he was rewarded a General Service Medal. He died in Nepal in 2013, and on 8 February 2023, his widow Purna Maya Rai and his son, the appellant, applied together for entry clearance to the UK.
3. In April 2023, the respondent granted Mrs Rai entry clearance to the UK but refused the appellant’s application on the grounds that he did not come within the terms of her Gurkha policy. This was because his father was deceased and because he was 50 years old and he had previously been married and had two children, which indicated that he had formed an independent family unit away from his mother. The respondent further found that the limited documentation submitted in support of the application did not demonstrate that he was “financially and emotionally dependent upon [his] mother beyond that normally expected between a parent and adult child.” In other words, their relationship did not constitute family life as defined for the purposes of applying article 8 of the European Convention on Human Rights (“ECHR”).
4. The appellant’s mother (“the sponsor”) departed for the UK in May 2023, while the appellant appealed to the First-tier Tribunal (“the FTT”). His appeal was heard before FTT Judge Codd (“the Judge”) over the course of two days, on 11 April 2024 and 4 July 2024. The Judge records in his decision that the sponsor gave evidence at the 11 April 2024 hearing, but that he became concerned about her cognitive functioning ([8]). After a brief adjournment, the appellant’s representative “indicated that the sponsor had profound memory problems and could not deal with the most basic of questions regarding the evidence she had given or the history of providing her statement.”: [9] The hearing was adjourned so that a cognitive assessment could be carried out.
5. On 3 May 2024, Dr J Cutting, a Consultant Psychologist, produced a report based on a consultation with the sponsor two days before. He described the cognitive assessment as follows:
“With regard to a psychiatric examination including that of her cognitive function, this was very difficult. As she cannot read or write most of the questions in a cognitive examination were inapplicable. She knew that she was in England and knew that a case was being organised to ask for her son Sujindra to join her in England. Other than that, I could not get any further. Her memory was clearly impaired as she did not remember the number of children initially but said she had three when in fact she had four. She did know their names however. She knew that she was living in Nuneaton but did not know the date or even the season. She did not know her date of birth.”
6. He concluded:
“From my rather unsatisfactory interview I received the impression that she might have some memory problems which would interfere with her ability to give proper evidence and understand the Tribunal’s workings but it did not appear to me that she was suffering from any formal psychiatric disorder. She was quite jolly throughout the interview and showed no evidence of the usual flattening of emotions seen in someone with dementia and I would not consider that she does suffer from dementia but simply mild to moderate memory problems, quite common in someone in their late seventies. She has cognitive impairment of a moderate degree. […] I can say that there would be no reasonable adjustments that could be made for this and I have considerable doubt about whether she could give evidence within the proceedings but this is partly because of her absence of English and the difficulties in translating any questions through an interpreter.”
7. The hearing resumed on 4 July 2024. The sponsor did not give any further evidence.
The Judge’s decision
10. In his decision, dated 11 July 2024, the Judge decided to place no weight on the sponsor’s written or oral evidence, in light of Dr Cutting’s report: [17]-[18]. There has been no challenge to this decision.
11. The Judge then made his decision on the rest of the evidence before him. He noted that the financial evidence was limited but included remittances from the sponsor to the appellant and the sponsor’s Nepalese bank statements, from which the appellant had made a number of withdrawals: [21]. However, there was no evidence as to his “living conditions, circumstances or expenses.”: [22]
12. There was a “lacuna of evidence” about the appellant’s personal circumstance and his statement was “unclear”: [24]. He said that he had divorced in 2022 and had custody of his two children, but he did not explain “his current circumstances or how the situation has developed in recent years” or “where he and his wife (and children) lived.”: [23] He concluded that up until at least 2022, the appellant had been living “an independent life” with his wife and children: [24]. The Judge acknowledged the submission that was made that “the patriarchal society means that the appellant will have lived with the sponsor” but found that the evidence was insufficient to suggest this: [25].
13. The Judge’s findings on dependency were set out at [26]:
“I am satisfied that the sponsor has supported the appellant financially, by in effect granting a proxy access to her widows pension as well as cash withdrawals and transfers (even on a limited basis). However, in isolation this is not sufficient to demonstrate a state of dependency. [F]inancial dependency is not sufficient in isolation in order to engage Article 8(1).”
14. At [28], the Judge noted the appellant’s failure to provide a detailed explanation of his life with his children, including what would happen to the children if he left for the UK. He considered this to be a significant omission and drew the inference that he had “an independent life with them, separate to living with the sponsor”: [28]
15. At [29], the Judge noted that “the sponsor’s need is now increasingly for someone to care for her” but concluded that “it is not appropriate to allow an application in order to restore an article 8(1) right which as not engaged at the date of the application.”
16. At [30], finally, the Judge found as follows:
“[…] I find based on the evidence that on balance the appellant had been living a separate life, and he has not discharged his burden of proof to show he was living with the sponsor or that Article 8 (1) was engaged at the date of the application.”
17. The Judge concluded by considering the relevance of the historic injustice against Gurkhas at [31]-[35]. He noted that he had been provided little evidence of when or whether the sponsor would have settled in the UK (if not for the historic injustice), and that the appellant had been married and living an independent life for a number of years. It was “speculative to say that the resettlement would have occurred at a time when the appellant still had article 8(1) rights engaged with the sponsor” and “the historic injustice pleaded does not establish a factual basis upon which I could adjust my determination to take account of a likely earlier settlement date.”
18. At [36], the Judge concluded by finding that neither article 8(1) nor historic injustice was engaged. He dismissed the appeal.
The grounds of appeal
19. The appellant appeals on four grounds. They are organised by issue, rather than according to clearly identified errors of law.
20. Under Ground One, the appellant argues that there were a number of errors in the Judge’s findings on financial dependency:
(i) The Judge failed to make a “clear” finding on whether the appellant was financially dependent on his mother;
(ii) The Judge appeared to be applying a test of “dependency” for the establishment of family life, rather than the test of “real, effective and committed support” established in Kugathas v the Secretary of State for the Home Department [2003] EWCA Civ 31 and Rai v Entry Clearance Officer, New Delhi [2017] EWCA Civ 320;
(iii) The Judge had materially misdirected himself in law at [26] when stating that “financial dependency is not sufficient in isolation” to engage article 8 (1), because in Mobeen v Secretary of State for the Home Department [2021] EWCA Civ 886 the Court of Appeal had referred to “elements of emotional and/or financial dependency.”
(iv) It was “not clear how or why” the appellant’s access to the sponsor’s widow’s pension did not “constitute financial support which was effective or committed”. This appears to be a rationality challenge presented as a failure to give reasons.
21. Ground Two sets out errors with regard to the issue of emotional dependency:
(i) Failure to make a finding as to whether there was committed or effective emotional support between the sponsor and the appellant;
(ii) The Judge had found at [27] that the sponsor “requires the support of the Appellant” and it was “unclear” how that did not meet the test for “effective or real support”. This also appears to be a rationality challenge presented as a failure to give reasons.
22. The appellant submitted at this stage in the grounds that these errors were material because the “threshold for engagement of Article 8(1) is […] a modest one (merely requiring more than a technical or inconsequential interference […]) , and therefore any margin for error is arguably very fine.”
23. Ground Three is that the Judge referred at [29] and [30] to whether there was family life between the appellant and the sponsor at the date of application. This was said to be wrong for three reasons:
(i) In general, in a human rights appeal, the tribunal can consider evidence concerning matters arising after the date of decision;
(ii) More specifically, Rai establishes that the question in Gurkha cases is whether family life was engaged when the sponsor left Nepal and had endured until the date of hearing; and
(iii) The finding at [29] was unclear, “confused” and “wrong in law” because if article 8(1) “was engaged at present then that ought to have had a material bearing on consideration of whether it had been engaged […] when the Sponsor came to settle in the UK.”
24. Ground Four addresses the issue of historic injustice. It is argued that:
(i) The Judge failed to address the right question, which was “but for the historic injustice” would the appellant’s father have settled in the UK at a time when the appellant would have been able to accompany him as his dependent child;
(ii) If the Judge’s finding was that the appellant’s father would not have settled in the UK at such a time, this was unfair because the father was deceased and could not speak to the issue, the sponsor could not be asked about it due to her cognitive issues, and it had never been the respondent’s position that the historic injustice towards Gurkhas was not engaged. On the contrary, the respondent must have accepted that the historic injustice was relevant to this family, or she would not have granted entry clearance to the sponsor.
The hearing
25. At the hearing before us, we had a composite bundle of 470 pages and the respondent’s Rule 24 response. There is also a “supplementary” appellant’s bundle uploaded on 20 February 2025. Although some of the evidence in this bundle pre-dates the appellant’s second appeal hearing, it does not appear that it was before the First-tier Tribunal. We have therefore disregarded it for the purposes of this decision.
26. We heard submissions from both representatives, for which we are grateful. The submissions are contained in the record of proceedings and we will not rehearse them here. We will refer to them where relevant in our findings below.
Discussion
27. In deciding whether the Judge’s decision involved the making of a material error of law, we have reminded ourselves of the principles of appellate restraint set out in a long line of cases, including Ullah v Secretary of State for the Home Department [2024] EWCA Civ 201, at [26], Yalcin v SSHD [2024] EWCA Civ 74, at [50] and [51], Gadinala v SSHD [2024] EWCA Civ 1410, at [46] and [47], and Volpi & Anor v Volpi [2022] EWCA Civ 464, at [2-4] and of the danger of “island-hopping”, rather than looking at the evidence, and the reasoning, as a whole. See Fage UK Ltd & Anor v Chobani UK Ltd & Anor [2014] EWCA Civ 5 [114]. As summarised most recently by the Upper Tribunal in Rai and DAM (Grounds of Appeal – Limited Grant of Permission) [2025] UKUT 00150 (IAC) at [8]:
“A decision of the FtT will always be capable of having been better expressed. Specific findings of fact, even by the most meticulous judge, are inherently an incomplete statement of the impression which was made upon them by the primary evidence. Equally, an appeal Court or Tribunal should not subject a judgment to narrow textual analysis. The decision of the FtT should not be picked over or construed as though it was a piece of legislation or a contract and the Upper Tribunal is not entitled to find an error of law simply because it does not agree with the decision, or because the Tribunal thinks the decision could be more clearly expressed. “
28. As a preliminary matter, we note that the question of whether there is family life between an adult child and their parent is a fact-sensitive one, depending on a consideration of all relevant evidence. We consider that the approach taken in the grounds of dividing the question into the two discrete issues of “financial dependence” and “emotional dependence” is unhelpful. The evidence must be viewed in the round, as set out in the passage in Mobeen on which the appellant relies:
“[…] the case law establishes clearly that love and affection between family members are not of themselves sufficient. There has to be something more. […] 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.”
29. We also consider that the appellant’s reliance on AG (Eritrea) v the Secretary of State for the Home Department [2007] EWCA Civ 801 at [28] and VW (Uganda) & AB (Somalia) v the Secretary of State for the Home Department [2009] EWCA Civ 5 at [22] is obviously misplaced. The low threshold referred to in these cases is for when an interference with an established article 8 family or private life right is severe enough to engage the protection of the ECHR. In other words, it relates to the second Razgar question, not the first. It would be an unprecedented expansion of the scope of article 8 to adopt that low threshold for the first Razgar question and to extend the protection of article 8 whenever there are “elements” of either financial or emotional dependence.
30. Following the guidance cited above at [26] of this decision, we step back and look at all of the factual findings underpinning the Judge’s conclusion that article 8 was not engaged. These were that:
(i) the evidence before the tribunal was limited and there were significant lacunae on material issues;
(ii) the appellant had access to his mother’s pension and she sent him limited financial remittances;
(iii) there was no evidence of his financial needs or personal circumstances; the logical implication is that his financial dependency could not be established;
(iv) the evidence was insufficient to show that the appellant and the sponsor had lived together, even taking account of assertions about Nepalese social and family structure;
(v) the appellant’s silence about his family life with his wife and children during his marriage and his children’s circumstances since his divorce raised the inference that he had established an independent family unit, at least until his divorce in 2022;
(vi) the sponsor now “requires” the appellant’s support because she needs “someone to care for her” (the evidence before the Judge in Dr Cutting’s report showed that she was receiving daily care from a distant relative in the UK); and
(vii) the appellant and his mother were in regular contact.
31. There has been no challenge to any of these factual findings and we find that they were reasonably open to the Judge on the evidence before him. We further find that on the basis of these factual findings, it was open to the judge to find that the appellant had not established that family life as protected by article 8 had existed when his mother departed for the UK. Nor do we consider that these reasons are particularly unclear or that they are inadequate as defined in MK (duty to give reasons) Pakistan [2013] UKUT 641 (IAC). The reasons may be brief, but that in part reflets the limited evidence submitted by the appellant.
32. In other types of cases, it might have been an error for the Judge to focus on the question of whether family life existed at the date of application. The appellant is not wrong to submit that, as a general rule, human rights appeals must be decided on the facts as they are at the date of the hearing. However, Gurkha cases are governed by a particular set of principles. Among those principles, as cited in the grounds and repeated by Mr West in his submissions, is that one key question is whether family life existed when the sponsor left Nepal for the UK. The Judge may have erred in framing the question as whether family life existed at the date of application rather than at the date of the sponsor’s departure, but as Mr West accepted at the hearing before us, that error cannot have made a material difference in this appeal. It is not the appellant’s case that there was any change in the relationship between him and his mother between when they applied for entry clearance together in February 2023 and when the sponsor departed for the UK in May 2023.
33. In this context, we consider that the meaning of the Judge’s statement that “it is not appropriate to allow an application in order to restore an article 8(1) right which was not engaged at the date of the application” is reasonably clear. The Judge is here finding that sponsor now requires personal care, which the appellant would provide if he came to the UK, and that this might lead to the development of a family life within the meaning of article 8(1), but also that article 8 did not require that the appellant be granted entry clearance to allow this to happen. The word “restore” might not be the most felicitous choice here, as it suggests that there was family life prior to the sponsor’s departure, and that it is not in fact what the Judge had found. However, we bear in mind the important principle that a First-tier Tribunal decision must not be subject to a strict textual analysis, and we find that the Judge’s meaning is sufficiently clear and that there is no flaw in his reasoning on this point. Although article 8 does protect the right to develop family and private life ties in the future, that is only where article 8 is already engaged. In this case, the Judge had already found that article 8 was not engaged.
34. Finally, we agree that the discussion of the relevance of historic injustice in Gurkha cases is somewhat confusing. The Judge appears to find that the appellant has not shown that he was affected by the historical injustice because he cannot show that his father would have chosen to settle in the UK at a time when he was still his father’s dependent. The appellant is right to point out that this is not an issue that was raised by the respondent below. It is also somewhat hard to understand on the facts, given that the appellant was not born until four years after his father was honourably discharged. However, it is a fundamental principle of the Gurkha caselaw that the historic injustice the Gurkhas suffered is taken into account in the article 8 balancing test. It does not create a freestanding right to enter the UK where article 8 is not engaged. Given that the Judge’s finding that article 8 was not engaged was reasonably open to him, any error in his understanding of the relevance of historic injustice in these cases was not material.
35. For these reasons, the Judge’s decision contains no material error of law.

Notice of Decision
The First-tier Tribunal decision of 11 July 2024 is upheld and the appellant’s appeal is dismissed.

E. Ruddick

Judge of the Upper Tribunal
Immigration and Asylum Chamber

19 June 2025