Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: UI-2024-005068
First-tier Tribunal Number: PA/63559/2023

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On the 17 March 2025

Before

DEPUTY UPPER TRIBUNAL JUDGE WOODCRAFT

Between

MR
(Anonymity order made)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:

For the Appellant: Mr A Swain, Counsel
For the Respondent: Ms S Mckenzie, Home Office Presenting Officer

DECISION AND REASONS

Heard at Field House on 26 February 2025

Order Regarding Anonymity.

Pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008, the appellant is granted anonymity, and is to be referred to in these proceedings by the initials MR. No-one shall publish or reveal any information, including the name or address of the appellant, likely to lead members of the public to identify the appellant. Failure to comply with this order could amount to a contempt of court.

The Appellant

1. The Appellant is a citizen of Nepal, born on 19 February 1978. She appealed against a decision of the respondent dated 17 November 2023 which refused her application dated 15 March 2019 for international protection. The appellant’s appeal against the respondent’s decision was allowed by Judge of the First-tier Tribunal Latta sitting remotely. The respondent appealed that decision and in a determination dated 10 January 2025 I found a material error of law in the First-tier decision such that it fell to be set aside. There is now exhibited to this determination, a copy of my error of law decision.

2. The appellant arrived in the United Kingdom in 2015 with a visit visa valid for six months. Two other applications, the first dated 28 July 2015 for leave to remain outside the rules and the second dated 3 April 2018 for leave to remain on family/private life grounds were both refused by the respondent. The appellant was referred to the National Referral Mechanism on 14 September 2023 but the outcome was a negative decision.

The Appellant’s Case

3. The appellant’s claim initially was two fold. Firstly she was a victim of extreme domestic violence from her ex partner in Nepal. She thus formed part of a particular social group as a female victim of domestic abuse. Her abusive ex-partner’s brother was in the police force which meant that the police would not be able to protect her upon return. The appellant had only managed to escape the ex-partner’s threats when she had sought refuge in the United Kingdom as he had continued to contact her whilst she was still in Nepal. The appellant now had no family in Nepal, and that if she were to be returned as a single women she would face stigma and discrimination. Relocation to a shelter would be inadequate.

4. The second basis for the appellant’s claim was under Article 8, the right to respect for family and private life. Members of her family were involved with the Gurkha military, her father was a Gurkha sergeant, and had been granted settlement in the United Kingdom as a result. The Appellant had a support network in the United Kingdom of these family members, and spent her time with them. She was also supported by her local church. There was no reliance on public funds. The appellant was of working age and had experience of working within the care sector. She had a level of dependency with her family in the United Kingdom that went beyond normal emotional ties. Removal would result in unjustifiably harsh consequences for both the Appellant and her family in the United Kingdom. The Appellant would face very significant obstacles to her integration given what she had previously experienced in Nepal (this latter point was not upheld at first instance, see [6] below).

The Refusal

5. The respondent accepted that the appellant had been a victim of domestic violence in Nepal but did not accept that the appellant would be unable to access sufficient protection from the Nepali authorities. The appellant had not been able to demonstrate that her ex-partner, a businessman, had sufficient power over the authorities to influence their behaviour towards her. The respondent relied upon DFAT Country Information Report dated 1 March 2019 that indicated the police were prepared to act in similar circumstances to those of the appellant. Even if the claim had been accepted the appellant could have relocated to another part of Nepal such as the capital Kathmandu. The appellant had only claimed asylum after her claim for leave to remain was refused on 25 September 2015 and this undermined her credibility. As there was no one dependent upon the appellant she had no claim under Article 8, family life. There were no exceptional compassionate circumstances or other compelling reasons to grant leave on a discretionary basis.

The Proceedings

6. At [24] of my error of law determination I indicated what findings of the First-tier would be preserved. I wrote:

“I preserve the judge’s findings that the appellant is not entitled to a grant of international protection for the reasons given in the determination and I also preserve the judge’s finding that there are no insurmountable obstacles to the appellant’s return to Nepal again for the reasons given by the judge in her determination. The issue before the Upper Tribunal at the rehearing will therefore be whether the appellant can nevertheless succeed under the residual discretion in article 8 outside the rules.

Although the appeal bundle ran to several hundred pages (and contained the DFAT report on country conditions) the appellant confined the documentary evidence she relied upon to five documents only. The appellant relied on her screening interview, substantive asylum interview, her witness statement and that of her cousin and her parents death certificates.

The Relevant Law

7. The appellant’s claim is that this country would be in breach of its obligations under Article 8 (right to respect for private and family life) of the Human Rights Convention. The burden of establishing this rests on the appellant and the standard of proof is the usual civil standard of balance of probabilities. Following the decision in Razgar [2004] UKHL 27 the Tribunal when considering a claim under Article 8 must ask itself a series of questions. Is there a private or family life in existence? Will it be intererfered with by the respondent’s decision. Is that decision pursuant to a legitimate objective? If so is the effect of the decision proportionate to the legitimate aim pursued? Quite frequently the case will come down to an assessment of proportionality.

8. How should the Tribunal assess proportionality? In Hesham Ali v SSHD [2016] UKSC 60 it was said:

“One way of structuring such a judgment would be to follow what has become known as the “balance sheet” approach. After the judge has found the facts, the judge would set out each of the “pros” and “cons” in what has been described as a “balance sheet” and then set out reasoned conclusions as to whether the countervailing factors outweigh the importance attached to the public interest in the deportation of foreign offenders.”

9. In the case of Treebhawon [2017] UKUT 00013 the headnote states:

(I) Where the case of a foreign national who is not an offender does not satisfy the requirements of the Article 8 ECHR regime of the Immigration Rules, the test to be applied is that of compelling circumstances.

(II) The Parliamentary intention underlying Part 5A of NIAA 2002 is to give proper effect to Article 8 ECHR. Thus a private life developed or established during periods of unlawful or precarious residence might conceivably qualify to be accorded more than little weight and s 117B (4) and (5) are to be construed and applied accordingly.

(III) Mere hardship, mere difficulty, mere hurdles, mere upheaval and mere inconvenience, even where multiplied, are unlikely to satisfy the test of "very significant hurdles" in paragraph 276 ADE of the Immigration Rules.

10. GEN 3.2 (1) of Appendix FM of the Immigration Rules provides that where an application for leave to remain does not meet the requirements of the Appendix the decision maker must consider whether the circumstances in sub-paragraph (2) apply. These are whether there are exceptional circumstances which would render refusal a breach of Article 8, because such refusal would result in unjustifiably harsh consequences for the applicant or a member of their family.

The Oral Evidence

11. The appellant attended and gave oral evidence through the court appointed Nepali interpreter. She adopted her witness statement dated 22 March 2024 made for the First-tier, there being no more recent statement upon which the appellant relied. In cross examination the appellant was asked about her cousin’s family particularly what family members she had in Nepal. The appellant said that her cousin’s parents were in the United Kingdom. There had been three maternal aunts but only one was left. Her paternal aunts were all in the United Kingdom because of their connection to the British Army. Her cousin had a brother who was in Australia and other family members were in India but none were in Nepal.

12. She was asked if she had experienced any problems whilst her mother was in the United Kingdom and she, the appellant, was still in Nepal. The appellant replied that she had received threats and warnings from her ex-partner. While her mother was in Nepal, her mother gave the appellant moral support but once the mother had gone the appellant felt herself to be vulnerable. The appellant was still married to her ex-partner although they had separated.

13. There was an occasion when two people sent by her husband came looking for her. She did not go to the police about the matter because her husband’s elder brother was in the police. In re-examination she gave more detail about this incident. She knew the two men were sent by her husband because they frequented the husband’s restaurant. The husband used to lock her up with his workers. These were the men she had seen before. She was going from her home along a back alley to shop, a public place. She knew they were going to sexually abuse her but that did not happen because she ran away. Fewer people walk along the back alley. It was put to the witness by the presenting officer that she, the appellant, was not telling the truth about this alleged incident as the men would hardly have approached her in a public place. The appellant replied she was a hundred percent sure that they had come to attack her.

14. The appellant said that she had not returned to Nepal at the end of her visitors visa or contacted the Home Office to see if she could continue to stay because just at that time her mother fell ill suddenly. The plan was for the appellant to give her mother support but her mother passed away unexpectedly. She had no one to return to in Nepal so she was compelled to apply for asylum. That was why she overstayed. What she meant by saying she was receiving financial support from the witness, her cousin, was that by living in the same household as the cousin the appellant saved on expenses. When the appellant had lived in Nepal with her mother there was no need for the cousin to send her money.

15. She wanted to work in the care sector here but the ARC certificate she had did not permit that. I asked the appellant to clarify who her cousin visits in Nepal when she returns there. The appellant appeared to amend her evidence saying that she meant to say her cousin visited her own parents the appellant’s aunt and uncle when they were back in Nepal but she did not know the last time anyone visited Nepal. The appellant and her husband had run away together because he was a Hindu and his family would not accept her. Her own parents did not mind.

16. I next heard evidence from the appellant’s cousin who lives with the appellant. She is the daughter of the appellant’s paternal uncle. The appellant and the cousin have been living together for the last nine years. She provided food for the appellant. In cross examination she was asked what emotional support she was giving to the appellant. The witness replied that was after the appellant’s parents died. About two weeks previously she had given the appellant between £1500 and £2000 for legal fees. Sometimes she, the witness also gave the appellant money for shopping. Usually however they shopped together. About a month ago she gave the appellant between £40 and £50. She was asked whether she would continue to provide this money if the appellant returned to Nepal, but the witness did not answer the question directly replying instead that she provided everything because she and the appellant were living together.

17. The witness said that she used to return to Nepal from time to time to see her parents when they were living there. She herself was last in Nepal two years ago when she went to visit her in-laws on her husband’s side who were still in Nepal. She was asked in cross examination whether she could visit the appellant in Nepal in the future but the witness noticeably did not answer the question replying instead that she “could not say much about that”. The cousin did not know if she might send financial support to the appellant in the future. It would not be possible for the appellant to rely on support from the cousin’s husband’s relations as the appellant did not know them. The witness denied that the reason why the appellantt had come to the United Kingdom was to assist the witness with childcare. The witness had two children, a son now aged 22 and a daughter now aged 16.

Closing Submissions

18. In closing for the respondent reliance was placed on the refusal letter. There were no exceptional circumstances in this case which would result in an unjustifiably harsh outcome. The appellant had come to the United Kingdom in February 2015. For approximately two years before that she had lived in Nepal on her own. The respondent accepted the appellant was a victim of domestic violence but there had been no credible incidents to support the claim that domestic violence had occurred. The event referred to by the appellant in her evidence of two men sent to her by her husband was not credible. The appellant was fabricating a claim. The alleged incident was in a public place. If the appellant was targeted and the plan was to sexually assault her the men would not have chosen a public pathway to carry this out. She said she ran away back home but if the men were looking for her the last safe place to go back to would-be her own home as the men would know where she lived. If that incident had really occurred the victim would be expected to go to the police. The appellant had not discharged the burden of proof upon her. There were no significant obstacles to her integration if she went back. She could seek assistance from the police. She had received some education in the United Kingdom and would return to Nepal better able to find work.

19. In closing for the appellant, counsel relied on his skeleton argument. The appellant was the daughter of a Gurkha sergeant and a victim of the most depraved abuse. The depth of her relationship with her cousin went beyond natural ties. Even if the rules were not met, the case of Treebhawon was authority for the proposition that leave to remain can still be granted if there were compelling circumstances.

20. In oral submissions counsel argued that in the gap between the appellant’s mother leaving Nepal and the appellant joining her in the United Kingdom the depravity in Nepal had continued. On the one hand the respondent said the appellant’s account was not credible but on the other hand she accepted that domestic violence as set out in the appellant’s asylum interview had indeed occurred. What the appellant suffered was one of the worst accounts of sexual physical abuse that the tribunal might see. It involved gang rape and filming her. It involved nudity with other men. She was badly beaten until she fainted. She was attacked with hot water and nearly died.

21. The appellant’s account of the attempted attack in the alleyway was highly likely to be true. The respondent tried to paint a picture that everything was fine for the appellant but it was not. Given the horror of what happened it would be hard for the appellant to go back to Nepal. Counsel accepted that there were no psychological or psychiatric reports in the case. The appellant had recovered from her ordeal thanks to the support she received from her family and in particular her cousin. There was no public interest in severing ties between the appellant and her cousin. Upon return, the appellant could not rely on the cousin’s in-laws whom she did not know. When the appellant was first here she was looking after her mother. The appellant was not exploiting the system (by applying for a visitor’s visa). There had been no reliance on public funds. The dependency on the cousin for over a decade took matters beyond normal family ties.

22. The respondent was trying to find some discrepancy in the appellant’s account that she had run away and gone home to hide. As this was an article 8 claim there needed to be a balance sheet exercise. She had made attempts to regulate her stay. It was unjustifiably harsh to return the appellant to Nepal. The proportionality exercise was broader than the wording of paragraph 276B of the immigration rules. The appeal should be allowed.

Discussion and Findings

23. The appellant makes a claim for leave to remain outside the immigration rules pursuant to article 8. She cannot show that there are insurmountable obstacles to her return to Nepal for the reasons given at first instance and which I preserved in my error of law determination. The appellant is able to internally relocate to another part of Nepal if she wishes to avoid coming to the adverse attention of her husband to whom she is still married. She has been dependent in this country on support from her cousin with whom she lives, who pays for her expenses and has recently given the appellant a substantial sum of money for legal fees.

24. There appears to be no reason however why financial support could not continue if the appellant were to return to Nepal. The point was put to the appellant’s cousin in her evidence but she somewhat sidestepped the question. The position therefore is that no good reason has been shown why the appellant would be unable to rely on financial support sent to her from the United Kingdom. If the cousin was not intending to support the appellant she had only to say that in her evidence but she did not.

25. The appellant also claims that she has emotional support from her cousin which she needed because of the horrific assaults upon her orchestrated by her husband. The respondent is sceptical about these claims although accepts that the appellant has been a victim of domestic violence. Acceptance of the fact of domestic violence does not of itself mean that the respondent has accepted all of the incidents alleged by the appellant. The respondent’s concern is that the appellant might be fabricating her case in order to bolster it. The respondent points to the rather muddled account the appellant gave in oral testimony of two men sent apparently to assault her. Looking at all the evidence in the round, I did not find this account credible for the reasons pointed out by the respondent in closing, see [18] above. It further undermines the general credibility of the appellant’s claim.

26. My concern about the claims of ill-treatment put forward by the appellant is the lack of supporting medical evidence to show the effects of the abuse whch the appellant states she has suffered. In the light of the detail of the abuse as described one would expect the effect to be traumatic but there is no medical evidence to show what difficulties the appellant might have in coping with life in Nepal because of her previous experiences. Counsel was unable to assist me with why no such evidence has been obtained although I note from the directions I made following the error of law hearing that the appellant was given the opportunity to file further evidence. This was not done and I have only the rather vague assertion that living with her cousin gave the appellant the emotional support needed to recover. I do not accept that. Whilst it is acknowledged that domestic violence occurred to the appellant in Nepal, I agree with the respondent’s submission that the appellant has embellished her account but has no evidence beyond her own assertion and perhaps her cousin to support her claims.

27. In effect the appellant’s argument is that the compassionate circumstances of her case mean that she should succeed under article 8 because it would be unjustifiably harsh to send her back to Nepal. As I stated in my error of law determination, I accept that there is a residual discretion outside the rules which are otherwise meant to be article 8 compliant. Section GEN 3.2 is there in order to ensure the rules are fully compliant with article 8 and thus it provides for a category of cases outside the rules which may nevertheless be granted. It is not prescriptive and as has been said such cases must be looked at on a case by case basis.

28. Only a relatively small number of cases are likely to come within this category. I cite above the authority of Hesham Ali which indicates that the tribunal should undertake a balance sheet approach in assessing a claim under article 8 especially the proportionality of the decision complained of. On the appellant’s side of the balance sheet is that she has lived in the United Kingdom for several years and would be able to work here if granted leave. Although she argues that she is dependent upon her cousin at the present time she states she would be able to become self-sufficient.

29. As I indicate above at [25] the appellant relies particularly on what she says was the ill treatment she received in Nepal at the instigation of her husband. It is difficult to give weight to this because of the lack of medical evidence to assess the extent to which she was traumatised by what happened or would be traumatised in the event of being returned to Nepal. The proof in a case such as this rests upon the appellant. The absence of supporting evidence is not in itself conclusive against the appellant but it does make it harder for the appellant to establish her case where as here the evidence could be obtained relatively easily with even a doctor’s letter.

30. There is a quantity of medical evidence in the appeal bundle but it relates solely to the condition of the appellant’s mother. One letter has been written by a GP about the mother’s condition from the point of view of supporting the appellant’s claim to stay. If such a letter could be obtained why could something similar about the appellant directly be not obtained? The concern about the lack of supporting medical evidence should not take the appellant by surprise. It was raised as a concern by the First-tier Tribunal in the first instance determination, see [41] thereof. The respondent argues that the appellant has exaggerated her claim and there is merit in that assertion.

31. The appellant would put on her side of the scales that she has no family members in Nepal to support her because they are all either in the United Kingdom or some other country. Against that, she could be visited by her cousin’s family who have supported her financially in the past and could do so again. She was able to survive in Nepal for quite some time when her mother had travelled to the United Kingdom. The appellant claims that during that time she was abused by her husband but it was found at first instance that she had been able to separate herself from him.

32. The judge in the First-tier pointed out at [40] of her determination that the appellant could internally relocate and I have preserved that finding. The background evidence shows there is a sufficiency of protection. The respondent raises cogent points in the refusal letter (see [5] above) regarding this aspect of the case which have not been met by the appellant. She would be able to work and support herself in Nepal and I do not therefore attach great weight to her argument that she be without support if returned to Nepal.

33. On the respondent’s side of the balance sheet is the fact that the appellant overstayed and delayed her claim for asylum indicating she had not travelled to the United Kingdom to claim asylum. This undermined the veracity of some of the claims the appellant has made of ill-treatment. The delay in making claims of abuse does undermine the credibility of those claims since they were evidently not uppermost in her mind in deciding to continue to live in the United Kingdom once her visa expired. Nor were her concerns reported to a medical professional. She overstayed because she wanted to look after her mother not because she feared return to Nepal. She appears only to have made a claim for asylum after her claim for leave to remain was refused. She does not produce medical evidence to show that there would be any psychological effects of returning to Nepal.

34. The appellant also puts on her side of the scales that she is the daughter of a Gurkha sergeant. No claim was put to me of historic injustice and it is difficult to see how it could have been put. As such little weight can be assigned to the appellant’s family’s connection with the British army.

35. I review the balance sheet to determine whether the respondent’s decision is proportionate to the legitimate aim pursued namely immigration control. I bear in mind that the appellant’s status in this country since her visa expired has been precarious or unlawful. Section 117B of the 2002 Act prescribes that little weight can be attached to any private life which may have been established in this country whilst the appellant has been here without leave. The appellant was found at first instance not to speak English. There is little on the appellant’s side of the scales in relation to her private life claim.

36. The appellant claims a family life with her cousin which goes beyond normal emotional ties but it is difficult to see how that might be justified. The appellant has been living with her cousin for some years now but that does not of itself take the relationship beyond the test applied in Kugathas [2003] EWCA Civ 31. The appellant receives financial support from her cousin but that would continue if the appellant returned to Nepal. The parties cannot choose where to enjoy family life. The appellant says she relies on her cousin for emotional support but there is little if anything in the witness statements or oral evidence to explain what that support amounts to. It is for the appellant to prove that her relationship with her cousin goes beyond normal emotional ties but this the appellant has failed to do.

37. The appellant claims it would be unjustifiably harsh for her family if she were to be removed. As the respondent pointed out in the refusal letter there is no one who is dependent upon the appellant. If the appellant were not here they would still be able to live their lives and maintain contact with the appellant through regular visits of the sort they already undertake.

38. In conclusion I do not consider that the appellant can show any compelling circumstances such that she should be allowed to remain in this country outside the immigration rules. I consider that the weight on the respondent’s side of the scales significantly outweighs those matters in favour of the appellant on the appellant’s side of the scales. That being so I do not find that the decision of the respondent is disproportionate and I therefore dismiss the appeal in this case.

Notice of Decision

I dismiss the appellant’s appeal.

I continue the anonymity order made in this case.

Signed this 10th day of March 2025

……………………………………………….
Judge Woodcraft
Deputy Upper Tribunal Judge

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: UI-2024-005068
First-tier Tribunal Number: PA/63559/2023

THE IMMIGRATION ACTS

Decision & Reasons Issued

…………………………………

Before

DEPUTY UPPER TRIBUNAL JUDGE WOODCRAFT

Between

MR
(Anonymity order made)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:

For the Appellant: Mr A Swain, Counsel
For the Respondent: Ms S Lecointe, Home Office Presenting Officer

DECISION AND REASONS

Heard at Field House on 6 January 2025

Order Regarding Anonymity.

Pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008, the appellant is granted anonymity, and is to be referred to in these proceedings by the initials MR. No-one shall publish or reveal any information, including the name or address of the appellant, likely to lead members of the public to identify the appellant. Failure to comply with this order could amount to a contempt of court.

The Appellant

1. The Appellant is a citizen of Nepal, born on 19 February 1978. She appealed against a decision of the respondent dated 17 November 2023 which refused her application dated 15 March 2019 for international protection. The appellant’s appeal against the respondent’s decision was allowed by Judge of the First-tier Tribunal Latta sitting remotely. The respondent appeals that decision with leave. Thus the matter comes before me as an appeal by the respondent but for the sake of clarity I will continue to refer to the parties as they were known at first instance.

2. The appellant arrived in the United Kingdom in 2015 with a visit visa valid for six months. Two other applications, the first dated 28 July 2015 for leave to remain outside the rules and the second dated 3 April 2018 for leave to remain on family/private life grounds were both refused by the respondent.

The Appellant’s Case

3. The appellant’s claim was two fold. Firstly she was a victim of extreme domestic violence from her ex partner in Nepal. She thus formed part of a particular social group as a female victim of domestic abuse. Her abusive ex-partner’s brother was in the police force which meant that the police would not be able to protect her upon return from the ex-partner. The appellant had only managed to escape his threats when she had sought refuge in the United Kingdom as he had continued to contact her whilst she was still in Nepal. The appellant now had no family in Nepal, and that if she were to be returned as a single women she would face stigma and discrimination. Relocation to a shelter would be inadequate.

4. The second basis for the appellant’s claim was under Article 8, the right to respect for family and private life. Members of her family were involved with the Gurkha military, and had been granted settlement in the UK as a result. The Appellant had a support network in the UK of these family members, and spent her time with them. She was also supported by her local church. There was no reliance on public funds, and the appellant was someone of working age and with experience within the care sector. She had a level of dependency with her family in the UK that went beyond normal emotional ties. Removal would result in unjustifiably harsh consequences for both the Appellant and her family in the UK. The Appellant would face very significant obstacles to her integration given what she had previously experienced in Nepal.

The Decision at First Instance

5. At [30] of the determination the judge accepted that the Appellant could form part of a particular social group, being a woman who is a victim of domestic violence. The judge recorded evidence she had received about this aspect of the claim at [31] to [34]. The appellant lived with the ex-partner from around 2004 until she left him in 2009. She then resided with her mother from 2009 until 2013, at which point her mother relocated to the United Kingdom. After her mother’s departure from Nepal, the Appellant moved in with a friend for a couple of years, before travelling to the UK herself in 2015. After she left her ex-partner in 2009 he could not find her directly or in-person, but he continued to threaten her through telephone calls. The Appellant had no direct contact with her ex-partner since 2009, and remained in Kathmandu in Nepal until 2015.

6. The judge concluded from this evidence that if the appellant were to be returned to Nepal there would be an internal flight option available. The appellant had previously managed to relocate within the country, and resided there for around six years after the last direct contact she had with the ex-partner. Requiring the appellant to internally relocate the judge found would not be unduly harsh. The judge dismissed the claim under the Refugee Convention and there has been no onward appeal against that decision.

7. Turning to Article 8 the judge directed herself at [38] that the key issue was whether there would be very significant obstacles to the appellant’s integration into Nepal if returned. The judge noted at [39] to [41] that the appellant had left Nepal at 37, could speak Nepali and could rely on the support of a cousin, SR. At [42] the judge concluded that the appellant did not meet the requirements of paragraph 276 ADE (1)(vi) of the Immigration Rules, (now PL 5.1 of Appendix Private Life).

8. The judge accepted that the appellant had a family and private life in this country which would be interfered with by the respondent’s decision. At [58] to [63] the judge set out a balance sheet approach to assess whether the public interest in the appellant’s removal was outweighed by the unjustifiably harsh consequences of removal. The judge noted on the appellant’s side of the scales were: (i) the appellant’s length of residence in the UK; (ii) the support network in the UK; (iii) her father was a Gurkha, and her mother was granted settlement in the UK; (iv)the Appellant arrived here to care for her mother, and then remained in the UK following the mother’s death in 2016; (v) the Appellant was a victim of domestic violence when she was in Nepal; (vi) she received support in the UK from her family members who would also be adversely affected by the decision under appeal. Given those factors asking the appellant to leave the UK would result in unjustifiably harsh consequences the judge held. The Appellant’s Article 8 rights outweighed the public interest in maintaining immigration control. The judge allowed the appeal.

The Onward Appeal

9. The respondent appealed this decision noting that the judge had found that the appellant could not satisfy the significant obstacles tests under the immigration rules. Support and communication would continue with the appellant’s cousin (SR) should the appellant return to Nepal. There was no evidence that the appellant’s prior experiences would negatively influence her re-integration. It was therefore unclear what unduly harsh consequences were said to exist should the appellant return. Substantial weight should have been afforded to the public interest in the balancing exercise but was not. There was nothing to demonstrate that therelationship between the appellant and her family went beyond the normal emotional ties expected between adult family members. The appellant’s residence in the UK was at all times precarious, and mainly illegal. The First-tier decision bordered on the perverse, and failed to give adequate weight to the maintenance of effective immigration control. The conclusion simply appeared to utilise article 8 as a general dispensing power, following the appellant’s failure to satisfy any other provisions.

10. Permission to appeal was granted by the First-tier on 1 November 2024 writing: “The Appellant's family life in the UK was established when the Appellant was in the UK precariously and then unlawfully, it is not clear how there were more than the usual ties between adult cousins to engage article 8. Having found that the Appellant would not face very significant obstacles to reintegration it is not clear what the hardship would be. The grounds disclose arguable errors of law and permission to appeal is granted.” There was no rule 28 response from the appellant to the grant of permission to appeal.

The Hearing Before Me

11. In consequence of the grant of permission the matter came before me to determine in the first place where there was a material error of law in the decision of the First-tier Tribunal such that it fell to be set aside. If there was then I would make directions on the rehearing of the appeal. If there was not the decision at first instance would stand.

12. For the respondent it was argued that the judge had not given adequate reasons for her conclusion that removal would be unjustifiably harsh. The findings did not justify the outcome of her decision. The judge had said that the appellant had failed to meet a high test of insurmountable obstacles having found that the appellant could not satisfy the test of a justifiable harshness. What then were the unduly harsh considerations in this case? There was no mention of them in the determination. Greater weight should have been afforded to the public interest.

13. Weight should have been attached to the appellant’s immigration history but this was overlooked. The appellant’s residence in the United Kingdom was precarious at all times and or unlawful. It was not a relevant consideration that other family members had been granted leave to remain given the appellant’s immigration history. It was certainly not enough to find sufficient in favour of the appellant to outweigh the public interest. If the determination was set aside and reheard the judge’s findings in relation to the dismissal of the protection appeal should be preserved and the case should remain in the Upper Tribunal.

14. For the appellant it was argued that this was a case where the judge had given a reasoned assessment under article 8. It was a lengthy determination which covered both the case law and statute. The judge had used a balance sheet exercise in assessing the case as could be seen from the determination. The case had sufficient features to outweigh the public interest. Counsel referred to his skeleton argument which had noted that the appellant was a victim of domestic violence which was a relevant issue. The appellant had suffered in Nepal at the hands of her former partner. It was not necessary to labour the point because the interview was before the judge and it was recorded that the appellant had been subject to a gang rape. The appellant’s mother died in the United Kingdom and there were now no family members in Nepal. The appellant had everything here.

15. There was a dependency by the appellant on her cousin SR who was really more of a sister to the appellant than a cousin. There was a lack of support for the appellant in Nepal. To show the relationship between the appellant and SR, SR had attended the hearing today. The appellant was from a family of Gurkhas and leave to remain could have been applied for on the basis of the Gurkha family history. The judge quite rightly took that history into account. The relationship between the appellant and her cousin went beyond normal emotional ties. The judge was aware that the appellant had no formal leave to remain.

16. In granting permission to appeal the First-tier appeared to suggest that any claim outside the immigration rules would fail but that was the wrong approach. There were insurmountable obstacles to integration but an article 8 assessment was broader and was quite a different test. It would be unjustifiably harsh for the appellant to return to Nepal. The proper test applied was a balance sheet which fell in the appellant’s favour with no error. The decision should be upheld. The respondents grounds of onward appeal were no more than a mere disagreement with the result.

Discussion and Findings

17. Whilst this is primarily a reasoned based challenge to the judge’s determination at first instance, it is difficult to see from the determination and in particular the paragraphs which deal with the claim of unjustifiable harshness what the factors are that justify the judge’s conclusion. The appellant could not show that she was entitled to international protection on the basis of a risk of harm upon return because the judge found that the appellant could internally relocate if she wished to avoid her former partner. Similarly the judge found that there were no insurmountable obstacles to the appellant integrating back into Nepali society. The appellant had lived most of her life in Nepal, could speak the language and her own witness SR told the judge that she the witness would support the appellant upon return, one assumes at the very least by providing financial resources.

18. It is correct to say that the discretion under article 8 is a residual one and even if it is argued that the immigration rules are compliant with article 8 there remains a small number of very exceptional cases which might still succeed outside the rules. To say that these cases are exceptional is not of course to impose a test of exceptionality which the higher courts have made clear is not required or necessary. However a case which can succeed in this way is likely to be rare which does imply that there will be many strong features indicating why the facts of the case outweigh the public interest. The essence of the respondent’s grounds of appeal is that the judge has not made clear what those factors are given her finding that there are no insurmountable obstacles to integrate. The factors appear to come down to the harsh treatment the appellant received in Nepal caused by her ex-partner with whom she no longer has a relationship and away from whom she was able to live for several years in Nepal before travelling to the United Kingdom. The appellant arrived as a visitor for a quite different reason namely to look after her mother.

19. The other main factor relied upon is that she comes from a family closely involved with the Gurkha military and she has established a private family life here with the other members of her family. As the respondent correctly points out given that the appellant’s status in this country was at best precarious and unlawful for large parts of the time little weight can be placed on her private life in the balancing exercise. In relation to her family life the judge found that this went beyond the normal emotional ties one would expect to see between adults.

20. I remind myself that the judge had the benefit of seeing the witnesses and hear them give evidence. The difficulty however is that the judge does not point to any particular factor that takes this case out of the ordinary to show a relationship going beyond normal emotional ties. There appears to have been little or no psychological evidence before the judge. Whilst the appellant was financially dependent on her family the evidence before the judge was that that financial support would continue wherever the appellant was, be it either in Nepal or the United Kingdom.

21. Overall it is difficult to see what the circumstances in this case were that would mean that there were no insurmountable obstacles to the appellant returning to Nepal yet there would be unjustifiably harsh consequences if she did return. Although the two are different tests, given the overlap between them it was necessary to spell out in full detail what were the factors that were different to the integration issue which would prevent the appellant from being able to return. It does not appear to be argued that the appellant is at future risk from the ex-partner rather that she suffered very badly at his hands and therefore cannot go back. In the absence of further risk however it is difficult to see why if the appellant can avoid the ex-partner as she did previously it is unjustifiably harsh but not an insurmountable obstacle.

22. As the respondent correctly points out in her grounds of onward appeal article 8 does not give the tribunal a general dispensing power to depart from immigration requirements where they are not met or relevant authorities. It is sometimes said on a colloquial basis that article 8 is “not a get out of jail free card”. Unfortunately the lack of clear reasoning from the judge does rather give the impression that article 8 is being used in some way as a dispensing power where the appellant cannot meet the rules. That is a material error of law on the judge’s part and means the determination should be set aside.

23. I have considered whether I should remit the matter back to the First-tier to be reheard or whether the rehearing of the appeal should be retained in the Upper Tribunal. I have decided on the latter course as the factual matrix appears to be largely agreed and the issue is an assessment of that factual matrix something which the Upper Tribunal is in a position to do without extensive fact finding.

24. I therefore set the decision aside and direct that the rehearing of the appeal will be heard at Field House at the earliest available date. I give leave to the appellant to file further evidence if so advised. I preserve the judge’s findings that the appellant is not entitled to a grant of international protection for the reasons given in the determination and I also preserve the judge’s finding that there are no insurmountable obstacles to the appellant’s return to Nepal again for the reasons given by the judge in her determination. The issue before the Upper Tribunal at the rehearing will therefore be whether the appellant can nevertheless succeed under the residual discretion in article 8 outside the rules.

Notice of Decision

The decision of the First-tier Tribunal involved the making of an error of law and I set it aside. I direct that the appellant’s appeal against the respondent’s decision to refuse leave to remain outside the immigration rules should be reheard in the Upper Tribunal.

Respondent’s onward appeal allowed.

Directions

I issue the following Directions for further management of the appeal which will be retained in the Upper Tribunal:

(i) The appeal will be listed at Field House for a face-to-face hearing on the earliest available date with a time estimate of 3 hours: it is expected that the appellant, her witness(es), the Appellant’s representative, and the Respondent’s representative will all attend in person.

(ii) The clerk to the Tribunal will arrange an interpreter in Nepali. If an interpreter is not required the appellant’s representatives should inform the Upper Tribunal as soon as possible.

(iii) The Appellant may file and serve any further evidence upon which she wishes to rely in the appeal. If she wishes to do so, she should incorporate such evidence in to a revised consolidated bundle which should be filed by uploading on to the CE-File system, and served on the Respondent by email, no later than 28 days before the rehearing

(iv) The Respondent may file and serve any further evidence (by the same methods)
no later than 14 days before the resumed hearing.

(v) No later than 7 days before the resumed hearing, the Appellant shall file and serve (by the same methods) a concise Skeleton Argument addressing the relevant issues in the appeal.

(vi) The Respondent may file and serve a Skeleton Argument no later than 3 days before the resumed hearing.

(vii) The parties are at liberty to apply to vary these Directions.

Signed this 10th day of January 2025

……………………………………………….
Judge Woodcraft
Deputy Upper Tribunal Judge