Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2024-005105

First-tier Tribunal No: HU/61885/2023

THE IMMIGRATION ACTS

Decision & Reasons Issued:

On 25th of March 2025

Before

DEPUTY UPPER TRIBUNAL JUDGE JARVIS

Between

DAL BAHADUR PUN
(NO ANONYMITY ORDER MADE)
Appellant
and

THE ENTRY CLEARANCE OFFICER
Respondent

Representation:
For the Appellant: Ms C. Physsas, Counsel instructed by Everest Law Solicitors
For the Respondent: Ms S. Nwachuku, Senior Home Office Presenting Officer

Heard at Field House on 4 March 2025

DECISION AND REASONS

Introduction

1. This decision should be read in conjunction with the earlier error of law judgment dated 23 January 2025.

Procedural history

2. As a consequence of the error of law decision the following findings from the First-tier Judge were preserved:

a. The evidence of the Sponsor and the Appellant about their living arrangements before the Sponsor came to the UK was inconsistent but it is likely they have remained in contact.

b. The Sponsor had not satisfactorily explained why her other three children had been able to develop careers for themselves, but the Appellant had not.

c. The Sponsor did not give very much detail about the Appellant’s expenses.

d. The Sponsor gave inconsistent evidence about the Appellant’s current place of residence.

e. The Judge was surprised at the inability to explain the deposit in the Appellant’s account from Deepak Gurung.

f. The Appellant had failed to provide an accurate picture of his current circumstances and had not established that he was living with the Sponsor before she came to the UK.

g. An accurate picture of the Appellant’s financial circumstances had not been presented.

h. The Sponsor was either sending money as a gift or to falsely create the impression that she is providing him with support.

The remaking hearing

3. The remaking hearing was heard at Field House in London. The Sponsor and her nephew, Mr Ram Magar both gave oral evidence via the Tribunal’s Nepalese interpreter. I am satisfied that there were no difficulties in understanding.

4. Prior to cross-examination Ms Physsas confirmed that the Sponsor’s witness statement had been read back to the Sponsor the previous day; this was eventually confirmed by the witness in evidence in chief.

5. Both witnesses were cross-examined and after the evidence I received oral submissions from both representatives of which I have kept my own note.

Findings and reasons

6. In coming to my conclusions, I have carefully considered the composite bundle of 142 PDF pages, as well as the skeleton argument dated 3 March 2025.

7. In assessing the issues in dispute I have used the preserved findings of the First-tier as my starting point and considered all of the evidence, in the round, at the date of the hearing applying the balance of probabilities.

8. In the new skeleton argument the Appellant argues that the Upper Tribunal should depart from the preserved findings of the Judge on the basis of the new evidence in the Appellant’s addendum witness statement and the statement from the Appellant’s eldest brother, Mr Rudra Bahadur Pun (dated 25 February 2025).

9. I note that Ms Physsas did not make a r. 15(2A) application for the evidence to be considered by the Upper Tribunal, I have however concluded that the absence of a notice does not procedurally disadvantage the Respondent (who made no complaint about the absence of a notice) and it is clear enough that the evidence relates to findings made by the First-tier Tribunal and so could not, in that sense, have been produced before. I also find that it is in the interests of justice to consider the evidence applying DK (Serbia) & Ors v Secretary of State for the Home Department [2006] EWCA Civ 1747 at §25.

The Appellant’s place of residence

10. In respect of the Appellant’s place of residence, the Sponsor was carefully cross-examined by Ms Nwachuku. The Sponsor was asked about the ‘Recommendation’ letter (authored by Mr Pradhananga, dated 28 July 2024) which states that the Appellant lives in Ward No.2 (Kaski) and that he is unemployed and financially/emotionally dependent upon his mother.

11. The Sponsor stated that her family and Mr Pradhananga’s family had lived nearby to each other in Ward No. 2 and so were familiar with each other’s circumstances. The Sponsor also told the Tribunal that the author was only allowed to write nice things and knew her son.

12. Ms Nwachuku asked why the letter stated that the Appellant is unemployed whereas the Appellant claims to work for at most 10 days a month when it is not monsoon weather (paragraph 14). The Sponsor retorted that Mr Pradhananga would not be checking on her son every day and then stated “what does he know?”.

The remittances to the Appellant

13. The Sponsor was also asked about the name ‘Deepak Gurung’ on the Appellant’s bank statement. The Sponsor told the Tribunal that this person is related to her, but she knows him as ‘Min Bahadur’ and the nickname ‘Mine’. It was put to the witness that the Appellant had claimed that the Sponsor knows Deepak Gurung as ‘Min Gurung’ (paragraph 12) and she replied that this was the same person.

14. In her evidence to my question, the Sponsor stated that there was no need for a person to register at a new Ward unless moving province/county.

The Tribunal’s assessment

15. In assessing the Sponsor’s evidence I have also taken into account her age and that she is illiterate having never gone to school.

16. I am unable to accept the submission that the Sponsor is a credible witness about the residence of the Appellant. It is clear from §27 of the First-tier decision that she told the Tribunal that the Appellant was in fact living in Ward No. 2 having previously said that he is living in Ward No. 18.

17. As I have laid out, in the hearing before me the Sponsor maintained that the Appellant is living in Ward No. 18 and that the reference to Ward No. 2 in the recommendation letter was incorrect.

18. I have decided that no real weight should be given to that document overall as the Sponsor’s and Appellant’s evidence is that the Appellant works at times but the letter states that he is unemployed. The Ward residence given is also different to that claimed now. I therefore refuse to place weight on Mr Pradhananga’s assertion that the Appellant is financially and emotionally reliant upon the Sponsor.

19. I therefore find that the Sponsor does not have a firm grasp on the Appellant’s current residence which is relevant to the assessment of family life.

20. In respect of the name ‘Deepak Gurung’ and the remittances, I remind myself that the First-tier Tribunal Judge did accept that remittances were sent by the Sponsor (§31) but questioned the large deposit from Deepak Gurung and the Sponsor’s knowledge of the Appellant’s financial circumstances.

21. I have found the Sponsor to be a fairly difficult witness who quite often did not answer the question asked. I am however satisfied that this generally arose due to the Sponsor’s age and lack of education and I do not consider it an automatic sign of mendaciousness.

22. I am just about prepared to accept overall that Deepak Gurung is a relative of the Sponsor who has assisted the Sponsor in remitting money to the Appellant despite the difference in their evidence as to the name the Sponsor knows him by. Despite my reservations as to the Sponsor’s grasp of the Appellant’s place of residence, I find that she is truthful in her account as to the money which is being sent to the Appellant.

23. I take into account Ms Nwachuku’s submission that the earlier finding concluded that the Sponsor did not have much knowledge of how the funds were being used. I also note however that the Appellant’s evidence at paragraph 12, that the money was given to Mr Gurung when the Sponsor was in Nepal to then be given to the Appellant when he needed it, (which he did in 2023 when he became unwell), was not expressly challenged and the Sponsor was not cross-examined about it.

24. On the basis of the oral evidence and the new evidence in the bundle I am just about persuaded that the Sponsor does remit money to the Appellant for his day-to-day expenses even if the Sponsor does not have a granular knowledge of how it is used. I accept the Appellant’s evidence of his expenses at paragraph 6 of his first witness statement. I also accept the submission/evidence that the Sponsor considers herself culturally obliged to remit money as the Appellant is not married.

25. In respect of the emotional connection between the Appellant and the Sponsor I have considered the unchallenged evidence of Mr Magar that he currently provides care and support to the Sponsor in the UK despite working and having his own family. I also accept his oral evidence that the duty will fall to the Appellant if he is allowed to enter the UK and that he and the Appellant will share responsibilities so that the Appellant can also work to some extent.

26. The Judge of the First-tier found that the parties remained in touch despite the Sponsor relocating to the UK (at §31). I accept the Sponsor’s evidence that they speak daily and that the conversations will vary in length depending on what has been going on. I also find that the Sponsor does have some health conditions predominantly relating to her age and that she is struggling with her own daily care, hence the support from Mr Magar.

27. I am prepared to accept the Sponsor’s oral evidence that she remains concerned about the Appellant as he is not married like his siblings. I also accept that she does speak to him about her physical and emotional health and that he does not make enough money from his labouring to financially support himself.

28. I do not see that the professional success of the other siblings is materially relevant when assessing all of the evidence which is before me.

29. Whilst I find that the Sponsor does not have an accurate understanding of where the Appellant is residing I conclude that this is far more explicable by her age and lack of education. I find that despite this, the substance of the emotional relationship exists between the Appellant and the Sponsor as at the date of the hearing. Factoring in the financial support provided, I conclude that the Appellant has shown the requisite real, effective or committed support of a reciprocal nature with his mother.

30. Having found that there is Article 8(1) ECHR family life I formally note that Ms Nwachuku did not advance any submissions in respect of Article 8(2) ECHR and I therefore find that the decision is a disproportionate one.

Notice of Decision

The Article 8 ECHR appeal is allowed.

I P Jarvis

Deputy Judge of the Upper Tribunal
Immigration and Asylum Chamber

18 March 2025