Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2024-005596

First-tier Tribunal No: HU/60734/2023
LH/05710/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On 24 March 2025

Before

UPPER TRIBUNAL JUDGE SARAH GREY
DEPUTY UPPER TRIBUNAL JUDGE SAINI

Between

KRISHNA KUMAR RANA
Appellant
and

ENTRY CLEARANCE OFFICER
Respondent

Representation:
For the Appellant: Mr S. Jaisri, Counsel instructed by Sam Solicitors
For the Respondent: Mr E. Terrell, Senior Presenting Officer

Heard at Field House on 7 March 2025

DECISION AND REASONS
Introduction
1. The appellant is a Nepalese national. This is an appeal brought by the appellant against the decision of the First-tier Tribunal (‘FTT’) dated 20 October 2024 (‘the decision’), in which the appellant’s appeal in respect of the respondent’s decision of 31 July 2023 to refuse his entry clearance application made on 16 June 2023 was dismissed.
2. The appellant is the adult child of a former member of the Brigade of Gurkhas. He is now 43 years of age. His parents settled in the United Kingdom in December 2011.
3. The appellant’s application made on 16 June 2023 was his third entry clearance application. He first applied for entry clearance to join his parents on 29 March 2016. That application was refused on 5 April 2016. His second application was made on 2 February 2021, and that application was refused on 27 May 2021. The appellant appealed the refusal of his application of 2 February 2021 and his appeal was dismissed by First-tier Tribunal Judge Nightingale in a decision promulgated on 12 October 2022.
4. The appellant’s application to which these proceedings relate was accompanied by a number of documents including a statement from the appellant and his father together with a printout of the sponsor’s GP notes and medical letters and a medical letter in respect of the appellant. It was submitted on the appellant’s behalf that there had been a material change in circumstances since the appellant’s previous appeal was dismissed by Judge Nightingale.
5. The hearing was held at Birmingham IAC on 7 October 2024 before a panel (‘the panel’) of two First-tier Tribunal Judges and the appeal was dismissed by a decision promulgated on 20 October 2024.
The decision under appeal
6. The panel took the previous determination of Judge Nightingale as the starting point in accordance with Devaseelan. The salient findings from Judge Nightingale’s decision were summarised at [14] of the Decision, including (inter alia):
a. The appellant had not been living at the family home and was not in any way dependent upon his father at the time his parents came to live in UK in 2011 (because he had been living and working abroad since 2008) and he was not part of the sponsor’s family unit at that time.
b. The appellant returned to the family home when his work abroad came to an end. His sister and her children also lived at the family home. The family home was not as remote as claimed and there were concerns over whether the family’s circumstances were as claimed.
c. There was discussion of the appellant taking employment in Nepal. Some financial support was being provided by the sponsor to the appellant, but the level of support was indicative of extra support being provided rather than at a level that was indicative of “needs being met”.
d. There were genuine and heartfelt emotional ties between the appellant and his parents, but these did not go beyond the level that would be normally expected between adult relatives and did not amount to demonstrating family life for the purposes of Article 8.
7. Having set out the starting point the panel considered the further evidence adduced by the appellant in the appeal.
8. It was recorded that at hearing the sponsor provided a further explanation as to the circumstances whereby his daughter, Kalpana, had been living at the family home and the financial support she had received from the sponsor. In accordance with the Devaseelan guidelines the panel determined that the evidence in relation to the sponsor’s daughter should be treated with “great circumspection” and was not prepared to depart from the previous finding of Judge Nightingale that there were concerns that the family circumstances were not as claimed.
9. In relation to previous references to the appellant having “labour/agricultural” jobs the sponsor explained at the hearing that this was in fact a reference to the appellant growing vegetables and flowers in the garden at the family home and that the appellant had never been employed in Nepal. The panel considered the findings of Judge Nightingale and references to evidence of the appellant working “full time” and “during the agricultural season” and again approached the new information with great circumspection. The panel did not attach weight to the letter from the ward chairman stating that the appellant is unemployed and determined that the appellant had engaged in employment in Nepal.
10. The decision records that the appellant’s representative at the hearing identified four matters which gave rise to a material change in the appellant’s circumstances since the previous appeal. These were as follows:
a. The appellant has been diagnosed with a mental health condition.
b. The appellant’s sister is now leading an independent life again rather than living with the appellant.
c. The appellant’s sister in the UK visits the appellant’s parents once a month.
d. The sponsor is increasingly frail with health conditions.
11. The panel did not attach weight to the letter of Dr Bhaara Khadka dated 25 April 2023 and found the appellant had failed to establish that he was suffering from a mental health condition as claimed. Further, the panel found that even if the appellant was suffering from a mental health condition, there was a lack of evidence that there has been any increased dependency on his parents as a result. The panel found that the claim regarding the appellant’s sister forging an independent life made no material difference to the assessment of the relationship between the appellant and his parents.
12. In relation to the health of the sponsor, the panel accepted that the sponsor is more elderly with health conditions but found that it was not established that he is in need of significant help and that his daughter would be visiting him more than once a month if he was.
13. Based on the previous findings of Judge Nightingale and the appellant’s further evidence the panel determined that the appellant had not established there were any “added elements of dependency” beyond which would be typical and common between an adult child and parent.
The grounds and permission
14. Permission to appeal was sought by the appellant on two main grounds.
15. The first ground asserts that the panel had made a material misdirection of Devaseelan principles and erred in its treatment of the medical letter in respect of the appellant and the claim that the appellant had developed mental health issues, and in its treatment of the medical evidence and assessment of health issues in respect of the sponsor. Permission to appeal was refused in relation to this ground, the permission to appeal decision stating that “the judges gave appropriate consideration to the evidence on the health claims and gave cogent reasons for the findings made about those, which were open to them on the evidence.”.
16. The second ground asserts that the FTT erred in failing to find if continuity of support amounts to re-established family life under Kugathas. In support of this ground, reference is made to the evidence adduced in the FTT of further money transfers, telephone call logs and travels dates. The grounds assert that “The evidence shows that since the A returned to Nepal, he has been continuously dependent on the sponsor” and that family life has been re-established due to the continuity of support despite the passage of time since the last decision. Permission was granted in relation to ground two on the basis that it was arguable.
Error of law hearing
17. At the error of law hearing, having confirmed that permission had only been granted on a single ground of appeal, we heard submissions from both representatives in respect of ground two. Mr Jaisri referred us initially to the decision of Judge Nightingale. He submitted that she found there was no family life between the appellant and his parents on the basis of the evidence before the Judge at that time. He submitted that although the appellant had failed to discharge the burden of proof in his previous appeal in demonstrating that he enjoyed family life with his parents, this did not preclude the appellant producing evidence subsequently to now discharge the burden of proof in this appeal. Mr Jaisri pointed to the evidence before the Tribunal that the appellant remained living in the family home in Nepal and that remittances to him had continued.
18. Mr Terrell referred to Judge Nightingale’s findings, submitting that some were positive and some negative for the appellant. Judge Nightingale had accepted there was some family support and visits by the sponsor to Nepal but still found that there was no family life. The appellant’s fresh appeal was on the basis that there had been a material change of circumstances. The panel assessed the appeal on the basis put on behalf of the appellant and determined that he had failed to establish a change of circumstances as asserted and the panel had correctly concluded that there was no new evidence to justify a departure from the findings of Judge Nightingale whose decision had not been appealed.
19. We indicated at the conclusion of the hearing that we would reserve our decision which we now provide with reasons.
Discussion and conclusions
20. As indicated at [7] in the decision, the task for the FTT panel was to determine whether departure from the findings of Judge Nightingale in relation to the issue of family life between the appellant and his parents was warranted.
21. We note from [19] of the decision that the appellant’s previous counsel argued the appellant’s case on the basis of a material change in circumstances since the decision of Judge Nightingale in four respects. From [20] it is apparent that the key aspect of change was the assertion that the appellant had developed a mental health condition. The was referred to as being “firstly, and very much at the forefront of [the representative’s] submissions”. The panel provided cogent reasons for rejecting this claim and permission to challenge this finding was refused. The further aspects of change argued on behalf of the appellant were addressed by the panel at [20] to [22] of the decision. The appellant does not have permission to challenge the findings reached in respect of these matters, including in relation to the sponsor’s health and needs.
22. It appears to us from the appeal skeleton argument submitted in the FTT and from the decision, that the appellant’s case was not argued on the basis of ground two. The submissions made before us by Mr Jaisri may well be how he would have advanced the case in the FTT on the appellant’s behalf, but this was not how the case was put to the FTT panel by the appellant’s previous counsel.
23. The panel was not prepared to depart from the previous concerns recorded by Judge Nightingale that the appellant’s family circumstances were not as claimed. The panel found that the appellant was engaged in some employment in Nepal. The findings in the decision under appeal and the previous findings of Judge Nightingale are not consistent with the assertion in the grounds in relation to ground two that “The evidence shows that since the A returned to Nepal, he has been continuously dependent on the sponsor.”.
24. Judge Nightingale accepted that the sponsor provided some financial assistance to the appellant but found that the assistance was not indicative of needs being met. However, assessing the evidence in the round, Judge Nightingale found that the support and assistance provided were not indicative of a family relationship, such as that envisaged in Rai, which engaged Article 8.
25. There is no indication that any evidence adduced demonstrated any material change in relation to the financial assistance or contact between the appellant and his parents which would cause the panel to depart from the previous judicial findings, or indeed any indication that the appellant’s case had been put on this basis to the FTT. We do not accept that the continuity of arrangements which were previously determined not to be sufficient to establish family life in October 2022, would now be capable of establishing family life just two years later, without more. We conclude that the omission in the decision to reassess the relationship in light of Kugathas is immaterial given that there was no new evidence that could cause or warrant a departure from the previous findings of Judge Nightingale.
26. Both the law and the appellant’s circumstances, apart from the passage of time, remained the same in October 2024 as they were in October 2022 when Judge Nightingale dismissed the appellant’s previous appeal. The Devaseelan guidelines were correctly considered and applied by the panel and the panel did not accept there had been a change in the appellant’s circumstances. As observed by Lady Justice Davies in the Court of Appeal in AL (Albania) [2019] EWCA Civ 950 at [25] “… following the Devaseelan guidelines, not only is the earlier determination the starting point, it should be followed unless there is a very good reason not to do so”. It is apparent that the panel determined there was no such reason to do so in the appellant’s case and we are of the view that the decision did not involve the making of an error of law in so finding.
Notice of Decision
The appeal is dismissed. The decision of the First-tier Tribunal did not involve the making of a material error of law.

Sarah Grey

Judge of the Upper Tribunal
Immigration and Asylum Chamber

17 March 2025