Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2024-005435

First-tier Tribunal No: HU/62338/2023
LH/03544/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On August 30 2025

Before

UPPER TRIBUNAL JUDGE LANDES
DEPUTY UPPER TRIBUNAL JUDGE SINGER

Between

MRS SHANTA DATTATREY KANAGINHAL
(NO ANONYMITY ORDER MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr M Sowerby, Counsel instructed by Quintessence Solicitors
For the Respondent: Mr K Ojo, Senior Presenting Officer

Heard at Field House on 8 August 2025

DECISION AND REASONS
1. The Appellant is a national of India, aged 80, who appeals with permission granted by Upper Tribunal Judge Ruddick, against the decision of the First-tier Tribunal (“the FTJ”) dated 21 September 2024 to dismiss her appeal (“the FTT decision”) against the decision of the Respondent to refuse her human rights claim on 5 October 2023 (“the refusal letter”).
2. The Appellant last entered the UK on 6 March 2022 on a 5-year family visitor visa. On 22 August 2022 she applied for leave to remain on the basis of her family and private life in the UK, arguing inter alia that she was a widow who was dependent upon her children in the UK, could no longer live with family members in India, that she could not look after herself, and could not be expected to integrate into India on return.
3. The Respondent’s refusal letter did not accept that there would be very significant obstacles to reintegration on return, or that there would be unjustifiably harsh consequences which would render removal a breach of Article 8 ECHR more widely.
The appeal to the FTT
4. The Appellant appealed to the First-tier Tribunal and directions were made for the service of evidence. An Appellant’s bundle was served which contained signed witness statements from two of her sons, Mr Vijayanarsimha Dattatraya Kanaginhal and Mr Anand Dattatrey Kanaginhal, and two daughters-in-law, Ms Vinutha Kanaginhal, and Ms Tanuja Chandrachary. The Respondent reviewed the case but maintained her position, arguing, inter alia, that the evidence did not show that Appellant had to specifically live with relatives. The appeal was heard before the FTJ on 19 September 2024.
5. At the FTT hearing Mr Anand Dattatrey Kanaginhal gave oral evidence and was cross-examined. With respect to the other three witnesses, who had also attended, the FTJ was content to take it that their respective witness statements were adopted as their evidence in chief. There was no cross-examination of the three other witnesses by the Respondent’s presenting officer, nor did the FTJ ask any questions in clarification, and proceedings moved on to closing submissions, after which the decision was reserved.
The FTT decision
6. In his decision, the FTJ stated at paragraph 11 that the “principal evidence was given through the Appellant’s son ADK”. He summarised the medical evidence at paragraphs 19-24: The Appellant had glaucoma for which she had had laser treatment in India in 2018 and since then had been treated conservatively with standard eye-drops. She had high blood pressure and type 2 diabetes which were both treated with medication. She had some incontinence issues, which had not required treatment and she did not require incontinence pads. She appeared to have received “exemplary” health treatment in India, had not required any treatment in the UK, and if she required advice or medication she would contact her doctors in India. At paragraph 25 the FTJ noted that “it had been suggested in the various witness statements” that the Appellant was developing memory loss but observed that there was no medical evidence to independently corroborate this and the Appellant had received no treatment for it. At paragraph 26 the FTJ observed that while the Appellant did not give evidence she had attended the hearing and “appeared to be a sprightly 79-year-old who was fully mobile”.
7. The FTJ made findings on whether the Appellant met Appendix Private Life Paragraph 5.1(b), at paragraphs 27-32. He did not accept that relatives who previously cared for her were no longer prepared to do so or that they had mistreated her. He noted the Appellant’s travel history. He noted the concerns of her children and her age at paragraph 28, and their worries as to whether the Appellant would be able to cope as she got older and the long distance between them. He remarked that the Appellant would not meet the requirements of Appendix Adult Dependent Relative. He found at paragraph 29 that she remained capable of looking after herself and that appropriate assistance could be obtained in India. He noted that she was a national of India and had entitlements and rights as a citizen of that country, where she had lived for most of her life. He found she would not encounter linguistic difficulties. He found that adequate healthcare could be obtained. The FTJ then said, at paragraph 31:
“Even if she could not return to the relatives she was with until 2022, and I do not accept this, her sons and daughter could arrange appropriate accommodation for her and if need be employ someone in India to assist her. Her sons and their wives are all in well-paid jobs and assisted her financially before. They could afford this.”
He then concluded at paragraph 32 that there were no very significant obstacles to the Appellant’s reintegration and therefore the Rule was not met.
8. At paragraphs 33-45 the FTJ made broader findings on Article 8 ECHR, accepting that the Appellant had built up a family and private life since she came here and that the decision interfered with both. With regard to proportionality, he stated that he adopted a balance sheet approach. He noted the Respondent’s public interest as expressed under the Immigration Rules. He referred to there being other options available to the Appellant and her family members, including visits, or even relocation. He considered matters under s.117B of the Nationality, Immigration and Asylum Act 2002, and concluded that the public interest far outweighed any interference with the Appellant’s family or private life.
The challenge to the FTT decision
9. The Appellant’s representatives applied to the FTT for permission to appeal to the Upper Tribunal, arguing (1) that the determination of the FTJ was “against the weight of the evidence”, and (2) that the FTJ “did not properly apply the test of Article 8”. Permission was refused by FTJ Rodger on 6 November 2024, who held that adequate reasons were given for the judge’s findings and there was no arguable error in the Article 8 assessment.
10. Renewed grounds for permission to the Upper Tribunal were settled by counsel, Mr Sowerby, who was counsel before the FTT and who, in addition to arguing that the earlier grounds of appeal raised valid observations and concerns, made additional points. He argued that the FTJ did not give adequate reasons for rejecting the assertion that the Appellant’s relatives in India had mistreated her and finding that the Appellant was still capable of looking after herself, and that he failed to make any finding as to whether he found Mr Anand Kanaginhal to be a credible witness. It was argued that there was no cross-examination of the three other witnesses who had adopted their statements, and their evidence should have been treated as entirely credible. Because of these errors, it was argued that the FTJ prevented himself from properly determining the appeal.
11. Upper Tribunal Judge Ruddick granted permission, on the basis that it was arguable (i) the FTJ failed to give adequate reasons for the rejection of the claim that the Appellant’s relatives who had looked after her in India would no longer do so, and had mistreated her in the past, and (ii) that the FTJ was required to accept the evidence of the other witnesses because it was unchallenged, or at least to give reasons for putting no weight on it. However, she pointed out that the Appellant would still need to show that the error was material in the light of the FTJ’s unchallenged findings at paragraph 31 of the determination that the Appellant could be adequately accommodated and cared for even if she could not return to her previous home.
12. Mr Sowerby drafted a witness statement regarding what happened at the hearing. The Respondent filed a Rule 24 response initially not accepting Mr Sowerby’s statement and stating that she wanted to listen to the recording of the hearing. It was also argued that there was no error as there was sufficient questioning of Anand Kanaginhal without there being a need to put the same questions to the other witnesses whose statements were similar. A listening appointment was arranged. The Respondent accepted on 20 June 2025 that what was asserted in Mr Sowerby’s grounds and statement accorded with the recording, some of which was set out; however the Respondent maintained her position in the Rule 24 response and requested an oral hearing.
13. The matter came before us on 8 August 2025. Directions had been issued to the parties prior to the hearing inviting submissions on whether DUTJ Singer ought to recuse himself; but the parties did not respond to this, and they both confirmed there was no issue of recusal at the hearing. We heard legal argument from both parties and reserved our decision on error of law.
Error of law
14. The grounds pleaded to the FTT for permission to appeal to the Upper Tribunal, although arguing that the FTJ failed to have regard to relevant evidence, did not make the points made by counsel in his renewed grounds. We find that there is no reason to conclude that the FTJ did not take into account the Appellant’s age, or status as a widow; and there is no reason to conclude that the FTJ was not aware of or misdirected himself as to the relevant test under the Immigration Rules of Article 8 ECHR. Mr Sowerby sensibly did not make further submissions on these points. We remind ourselves of the guidance given by the Court of Appeal about the approach that should be taken by an appeal court to findings of fact made by a first instance court or tribunal. In Volpi v Volpi [2022] EWCA Civ 464 Lord Justice Lewison summarised the well established case law at [2] of his judgment including at (iii): “An appeal court is bound, unless there is compelling reason to the contrary, to assume that the trial judge has taken the whole of the evidence into his consideration. The mere fact that a judge does not mention a specific piece of evidence does not mean that he overlooked it” and at (vi) “reasons for judgement will always be capable of having been better expressed. An appeal court should not subject a judgement to narrow textual analysis. Nor should it be picked over or construed as though it was a piece of legislation or a contract”.
15. The FTT grounds did however argue that the FTJ did not have regard to relevant matters and the decision was against the weight of the evidence; and Mr Sowerby expands upon this, due to what he says was the FTJ not accepting the oral evidence of Anand Kanaginhal yet making no finding regarding his credibility. It is also argued by counsel that the FTJ recorded evidence at paragraph 15 of his determination that the Appellant’s son and daughter in the USA had been unpleasant to her and that they would not have her live with them, without making a clear finding as to whether he accepted this. If he had accepted it, Mr Sowerby contends, that would have been inconsistent with his finding that it was a close family.
16. While it is right that the FTJ did not explicitly state “I did not find Anand Kanaginhal to be a credible witness”, we find that his decision when properly considered holistically was in reality making this finding (that he did not believe the witness on this) and that the FTJ did not accept that it had been reliably established that there had been family strife at all. We find that some reasoning was given for rejecting the credibility of the witness evidence in general regarding whether or not relatives who once cared for the Appellant were no longer prepared to do so and had mistreated her, namely that (i) there was no independent evidence of it, (ii) it was not consistent with the Appellant’s history, and (iii) the family was close knit. The FTJ referenced the Appellant’s independent decisions to travel and her intention to return to India in 2022 before she changed her mind. We also consider that his findings on this should be read in the context of his earlier observations on the somewhat limited medical evidence, in particular that she appeared to have received exemplary health treatment in India, and that there was an absence of medical evidence to corroborate the claim that the Appellant was developing memory loss.
17. However while some reasoning was given for not accepting what Anand Kanaginhal said regarding the relatives in India no longer being prepared to look after his mother, we are not satisfied that that reasoning took into account all relevant matters. There was no analysis of the email said to be from Akshay Kanaginhal (said to be the relative from India) dated 26 July 2022 stating (i) that “going forward, this arrangement is not feasible and it would not be possible to continue to host her”, and (ii) that this had been discussed with other cousins and their position was the same.
18. We also consider that the FTJ’s findings that the Appellant’s relatives in India were no longer prepared to look after her are not safe in circumstances where the recording of the hearing discloses that three witnesses were not challenged on their evidence at all regarding the refusal of these relatives to do so. Mr Ojo argues on behalf of the Respondent that it was not necessary to put this to each witness, but for reasons that follow we are not able to accept his argument on this.
19. In Browne v Dunn (1893) 6 R 67 Lord Herschell LC stated:
“I cannot help saying that it seems to me to be absolutely essential to the proper conduct of a cause, where it is intended to suggest that a witness is not speaking the truth on a particular point, to direct his attention to the fact by some questions put in cross-examination showing that that imputation is intended to be made, and not to take his evidence and pass it by as a matter altogether unchallenged, and then, when it is impossible for him to explain, as perhaps he might have been able to do if such questions had been put to him, the circumstances which it is suggested indicate that the story he tells ought not to be believed, to argue that he is a witness unworthy of credit. My Lords, I have always understood that if you intend to impeach a witness you are bound whilst he is in the box, to give him an opportunity of making any explanation which is open to him; and, as it seems to me, that is not only a rule of professional practice in the conduct of a case, but is essential to fair play and fair dealing with witnesses.”
20. In TUI UK Ltd v Griffiths [2023] UKSC 48 it was reiterated that there is a general principle that a party must generally challenge by cross-examination evidence of a witness of fact or an expert witness on a point if they wish to submit that such evidence should not be accepted (on grounds of dishonesty, inaccuracy or other inadequacy) as this serves the important function of giving the witness the opportunity of explaining any contradiction or alleged problem with his evidence.
21. However, the rule is not rigid and its application depends upon the circumstances of the case as the criterion is the overall fairness of the hearing; and does not apply where evidence of fact is manifestly incredible in the light of documentary evidence, or where the challenge is collateral or insignificant. Nor does it necessarily apply where opinion is given without any reasoning to support it, or contains an obvious mistake on the opinion’s face, or where the basis of the opinion is inconsistent with the witnesses’ factual evidence, or where an opportunity to respond has been given in writing.
22. Applying these principles, we do find that it was incumbent upon the Judge to recognise that there was unchallenged witness evidence on the refusal of the family members in India to continue to look after the Appellant (and, in the unchallenged evidence of Vijayanarsimha Dattatraya Kanaginhal, their previous mistreatment of her), and that, in those circumstances, he should have proceeded on the basis that these aspects of the case were reliable. On that basis we find the FTJ did fall into error.
23. Mr Sowerby contends that the same approach should be taken to what he contends is the unchallenged evidence from the witnesses that “due to her age, she can hardly do anything on her own” and “needs all the family members to be around her and provide her with the much-needed support that she enjoys with us” (Vijayanarsimha Dattatraya Kanaginhal); and that the Appellant is “advanced in age and cannot do anything on her own” and has “no close family member in India who can take care of her like we do in the United Kingdom. At this age of hers, she needs us to [be with her / care for her]” (Vinutha Kanaginhal/Tanuja Chandrachary). However, on this, we consider that the FTJ was entitled to be less rigid in the application of the rule in Browne v Dunn. Here, we find, he was entitled to proceed on the basis that this was their subjective opinion. It is one thing to assert that the witnesses were lying (or not reliable) regarding whether the Appellant had been mistreated in the past by relatives who were refusing to look after her now; but it is quite different where a witness is giving a bare opinion as to whether the Appellant could do anything for herself if returned to India, especially if it was at odds with the medical evidence. We judge that there is a qualitative difference between on the one hand the factual assertion made by a witness as to a specific event that had already taken place (i.e. something they say they have either seen or heard, such as whether or not a relative refuses to care for the Appellant), and on the other hand that which can be more readily described as a personal opinion, or belief on a future state of affairs, that may or may not transpire (such as whether or not the Appellant could live independently without help of family members) – and all the more so when that opinion was not supported by independent medical or psychiatric/psychological evidence. Indeed that distinction was noted in Tui v Griffiths at [60], when Lord Hodge, referencing Floyd LJ in Edwards Lifesciences LLC v Boston Scientific Scimed Inc. [2018] EWCA Civ 673, said: “… the rule applies with particular force where a witness gives evidence of fact of which the witness has knowledge, and it is proposed to invite the court to disbelieve that evidence. Fairness to the witness and to the parties demands that the witness be given the opportunity to respond to the challenge”.
24. We find that, even though these witnesses were not directly challenged on this aspect of their evidence (that the Appellant could not do anything for herself), the FTJ was entitled to judge for himself whether, notwithstanding their beliefs, the rule was met on an objective analysis, rather than accepting outright what was in reality little more than a bare assertion. It is to be noted again that the test as to whether there is an obligation to cross-examine is one of fairness. The Respondent had made it clear in the review that her conclusion was that it had not been evidenced that the Appellant’s age impacted on her ability to integrate and maintain herself with the financial support of her children in the UK and that it had not been evidenced that the Appellant needed to live with another relation, just because of her age. The witnesses therefore had the opportunity to supplement their bare undetailed assertions or to provide supporting medical or other evidence. A witness statement should supply the detail a witness can give on matters which are clearly in contention. Cross-examination is not the place for a witness to supply that detail for the first time. We observe that none of the witnesses in their almost identical statements explained what specific everyday tasks and activities the Appellant was unable to undertake for herself, beyond needing to be accompanied by another person when she ventured outside, (nor did the Appellant detail in her application form what everyday tasks she was unable to perform for herself; see page 165 of the composite bundle). They did not in their statements reference any falls that the Appellant had suffered. It was not asserted in their statements that she could not take herself to the toilet, or bathe herself, or prepare food or feed herself safely. Memory problems were cited, but not to the extent that it was specifically said that the Appellant was incapable of remembering to do important things, e.g. to take her medication when required. The Appellant herself was not called to give evidence neither was a witness statement from her in the evidence before the FTJ and there was no evidence before the FTJ that any memory problems (or any other issue) were such that she did not have capacity in law to give evidence. We find that the FTJ engaged with the fact that the evidence of the witnesses was their (wholly relatable) subjective anxieties about the Appellant at paragraph 28: “The understandable concern of her children is that she is approaching 80 years old. They worry about how she will cope as she gets older and about the long distance between them. It is not an uncommon situation when children move to a different part of the world.” We find he was reasonably entitled to characterise their evidence in this way and to reach his own decision on whether, when viewed objectively, the Appellant could look after herself or would need close family members to look after her in particular.
25. Crucially, we find that any error regarding the rule in Browne v Dunn was not material, because of the FTJ’s alternative finding at paragraph 31, which in our judgement was the FTJ taking the case at its highest, (i.e. an acceptance that the relatives refused to look after her and she could not live independently on her own). In those circumstances, the FTJ made a clear finding that there were still other options: namely, the Appellant being cared for by a non-family member, the UK based relatives either arranging appropriate accommodation (i.e. a care home), and/or employing someone in India to assist her (i.e. a carer). These were findings which we are satisfied were reasonably open to him even on the unchallenged evidence, given his reference to the financial wherewithal of the UK based relatives. The Respondent’s review for the FTT appeal dated 22 April 2024 argued at paragraph 19 that it had not been evidenced that the Appellant actually needed to live with another relative. None of the witnesses in their witness statements gave evidence that the issue of sourcing alternative care from a carer and/or a care home was something that had been considered - and why it was not a reasonable or workable option to pursue. There was also no clear challenge to the FTJ’s alternative findings at paragraph 31 either in the original grounds of appeal or the renewed grounds drafted by counsel, beyond the generalised assertion of inadequate reasoning. Judges are entitled to make findings in the alternative where appropriate: see for example OK (PTA; alternative findings) Ukraine [2020] UKUT 00044 (IAC). It was evidently appropriate to do so here. Mr Sowerby submitted to us at the hearing that the FTJ’s finding was speculative. It was not speculative. The burden was on the Appellant and so it was for her to prove that she would not be able to integrate even with the assistance which is commonly provided to those who cannot look after themselves through old age, either because even with that assistance there would remain very significant obstacles to integration, or because that assistance would not be available to the Appellant due to financial or practical reasons. It cannot be rationally said that the FTJ had not taken into account the Appellant’s age. As set out at paragraphs 18-26 of the FTT decision, the Appellant’s medical conditions were comparatively stable for a lady of her age, and were being adequately managed with medication, and she was mobile. The FTJ therefore did not accept that there were very significant obstacles to reintegration, not only on his findings of fact, but also were one to take the Appellant’s case at its highest. His Article 8 ECHR findings outside of the Rules, in our judgement, cannot be impeached in circumstances where he concluded that the substantive immigration Rule was not met on any analysis, there was healthcare available, the UK-based relatives could take turns to visit her (and also had the option of continuing family life with her in India if they so chose) and that private life was established in the UK when the Appellant’s status was precarious.
26. Therefore, we conclude that, while the FTJ erred by not giving adequate reasoning for rejecting the evidence of the witnesses (that the Appellant would not be cared for in India by family members who had mistreated her in the past), some of which was unchallenged, that error was not material to the outcome of the appeal, given his alternative findings at paragraph 31, which were reasonably open to him on the evidence.

Notice of Decision
The decision does not contain a material error of law.
The appeal is dismissed.

R Singer

Deputy Judge of the Upper Tribunal
Immigration and Asylum Chamber

13.8.25