Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2024-005702
UI-2024-005701

First-tier Tribunal No: HU/64648/2023
LH/04845/2024
HU/64649/2023
LH/04844/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On 23 September 2025

Before

UPPER TRIBUNAL JUDGE RIMINGTON

Between

Jaya Prakash Rai
Rita Rai
(NO ANONYMITY ORDER MADE)
Appellant
and

The ENTRY CLEARANCE OFFICER
Respondent

Representation:
For the Appellant: Mr M West, instructed by Castle Street Solicitors
For the Respondent: Ms S Rushforth, Senior Home Office Presenting Officer

Heard at Cardiff Civil Justice Centre on 18 August 2025

DECISION AND REASONS
1. In a decision promulgated on 20th June 2025 Upper Tribunal Judge O’Brien and Deputy Upper Tribunal Judge Wilson found an error of law in a decision promulgated by FtT Judge C J Woolley who had dismissed the appeals of the appellants. The Upper Tribunal directed that a remaking be undertaken, the appeal was retained in the Upper Tribunal and the remaking exercise was transferred to me. In essence the key issue was whether family life was engaged between the appellants and sponsor for the purposes of Article 8(1) of the European Convention on Human Rights. The late father of the appellants was an ex-Gurkha with an exemplary service. His widow, the appellant’s mother had relocated to the United Kingdom.
2. UTJ O’Brien and DUTJ Wilson found the judge had erred in law in making irrelevant findings and had referred to ‘social dependency’ which was not a requirement. For Article 8(1) family life there only needed to be elements of emotional and/or financial dependency. Secondly the judge had not applied Kugathas v Secretary of State for the Home Department [2003] EWCA Civ 31 properly as endorsed in Rai v Entry Clearance Officer (New Delhi) [2017] EWCA Civ 320; the test referred to either “real” or “committed” or “effective support” which was disjunctive and not conjunctive as applied by the FtT judge.
3. The background was that the sponsor came to the UK in 2015. There was in 2017 a FtT determination in relation to two of her adult children (Ramprakesh Rai and Mila Rai) were also subsequently admitted. The first appellant born on 30th July 1976 was married until 2015 and the second appellant born on 30th September 1966 was married until 2020. They appealed the decisions of the Entry Clearance Officer dated November 2023 to refuse them entry clearance. Before the Upper Tribunal Mr West submitted that family life could be broken and subsequently re-established. There was no requirement for continuous family life. Committed support did not require that financial support to be regular.
4. At [20], [21] and [23] of the UT error of law decision this was said
’20. The following findings of fact at [15] arise out of Judge Frazer’s unimpeached 2017 decision, rather than the application of the misdirected legal test: a. The sponsor’s evidence to the First Tier Tribunal in 2017 was that she had been providing financially for Ramprakesh Rai and his sister Mila, between whom was split her widow’s pension. b. There was no record in Judge Frazer’s decision of the sponsor supporting anyone except Ramprakesh and Mila in Nepal. c. The sponsor’s evidence was that all of Ramprakesh’s siblings except Mila (which, of course, included the Appellants) were married and independent of the family.
21. Moreover, the concluding sentence of [15] of the decision and reasons promulgated on 8 October 2024] is (our emphasis), “The import of this evidence is that both the present appellants as of 24th March 2017 were living independently of the sponsor and were not being supported by her”. It is evident therefore that those conclusions were reached without any reference to or application of the erroneous test for family life. Consequently, the Judge would have inevitably found that family life did not exist between the Appellants and sponsor as of 24 March 2017.
22. …It is not controversial that, in human rights appeals, the circumstances to be assessed are those existing at the date of hearing. The Judge accepted as a fact that the First Appellant divorced on 21 December 2020 [18] and the Second Appellant divorced on 23 October 2017 [19]’.
5. In terms of documentation I had before me the composite bundle served by the appellants’ representatives in 3 parts and which included information before the FtT, such as money transfers, witness statements of the two appellants and the sponsor and messages between the sponsor and appellants; there was the skeleton argument on behalf of the appellants.
6. At the hearing before me Mr West submitted that the sponsor was a vulnerable witness as she was blind and illiterate. He suggested that the daughter should give evidence on her behalf as another daughter had done before the FtT. Ms Rushforth objected.
7. I accept entirely that the witness was elderly but there was no medical evidence to suggest that she had any form of cognitive impairment, she understood the Nepalese interpreter who was in attendance; that someone is blind and illiterate does not mean that individual is unable to tender evidence. Indeed, the sponsor had given a witness statement. Unfortunately, the daughter who wished to give evidence on her behalf had not provided a witness statement and there was no application to the effect that she should do so. Mr West did not object to her being called per se. I directed that any questioning should be straightforward simple and in effect short. In the event the sponsor herself gave oral evidence and appeared willing to do so. When the process was explained to the sponsor she seemed content to answer questions and appeared capable of doing so. She told the court she did not understand the details of what was in her statement previously but was asked to provide one and what she said was said correctly. She confirmed both appellants lived in Dharam Railway No. 17 and the property was rented. The property had been rented for 17/18 or 20 years. She said she used to pay the rent as her children did not have enough. She sent money for food and rent. Previously the family house was sold.
8. Under cross examination the sponsor confirmed she had 6 children in Nepal 4 sons and 2 daughters and they did contract labour jobs sometimes. Her son the appellant did not work but occasionally had a job. It was pointed out to her that varied with her statement as she had said he had never worked. In the house in Dhuram resided her children their wives and her grandchildren. She did not know the rent in sterling. Her children arranged for it to be sent. She then stated that she borrowed money from close relatives for the expenses. She confirmed that the money transmissions to Nepal were from her son in law’s own money and he sent it whenever she requested. She then stated he gave her a loan and he arranged the funds whenever requested. She did not know the names of Rita’s children but stated they were now grown up. It was put to the sponsor that the evidence showed large gaps between calls for example there may be a month or so without speaking and she agreed that was correct. The sponsor confirmed that she frequently spoke with her daughter but seldom with her son. She added that there may be a month gap and maybe not.
9. Ms Rushforth submitted that it was possible that family life had been resumed but there was no evidence that it had. The preserved finding was that there was no family life when the sponsor left Nepal as both appellants were living independently. The appellants’ claims that they had never lived independently despite their marital status was at odds with the evidence including the witness statements. Rita had three children and Jaya two and there was no documentary evidence on their ages. That they had children of their own was strong evidence of an independent lives. There were handfuls of money receipts, one from 2021, a few from 2024 and 2025. The main sender was the son in law and that money was his own and there was no evidence to the contrary and no evidence that its provenance was the sponsor and she confirmed it was his money.
10. It was confirmed in particular that the 2 daughters had for several years done labour work and that was at odds with the evidence of the witnesses that the appellants were not able to work in Nepal. Financial support was not demonstrated.
11. In relation to emotional support there were Facebook call logs but no evidence as to whose accounts they were made from and the witness confirmed she asked her children to do them – they were not hers. There were large gaps without speaking. This was not demonstrative of real committed or effective support and fell far short of Article 8(1).
12. Mr West relied on the skeleton argument in the original appeal. On balance the sponsor had been credible and it was accepted that she had said some things not helpful to the appeal. No exceptionality was required and Article 8(1) was dispositive of the appeal. The support did not need to be real and committed and effective. The appellants were living in the de facto family home which had been sold to pay for the medical treatment of the father who died in the 1990s. The appellants had been in the family home since their divorces and it was more than likely that they were maintained by the sponsor’s support. The fact that her son in law contributed did not alter the picture substantially. She was a pensioner and vulnerable and inevitably the degree to which she could supply funds would be limited. What mattered was the sponsor directing the support. She may be helped by other members of the family in the UK but she was the reason why the money was being sent. The sponsor said she was sending money by the Hundi system. It was not surprising she was not sending the funds herself. It was noted the finding the Upper Tribunal preserved at [26]. In effect they had not acquired meaningful independence. Any employment was ad hoc seasonal work and not during the monsoon. The sponsor had visited on a number of occasions and had been as recently as 2024 in spite of her frail health. This was a poor farming family. I was referred to the family statements. I was referred to the question of dependence at the date of the hearing before me.
Conclusions.
13. I have read, with care, the skeleton argument put before the FtT and on which Mr West relied. In Jitendra Rai v Secretary of State for the Home Department [2017] EWCA Civ 320 Lindblom LJ when considering family life said this:
“17. In Kugathas v Secretary of State for the Home Department [2003] EWCA Civ 31, Sedley L.J. said (in paragraph 17 of his judgment) that "if dependency is read down as meaning "support", in the personal sense, and if one adds, echoing the Strasbourg jurisprudence, "real" or "committed" or "effective" to the word "support", then it represents … the irreducible minimum of what family life implies".
…
18. In Ghising (family life – adults – Gurkha policy) the Upper Tribunal accepted (in paragraph 56 of its determination) that the judgments in Kugathas had been ‘interpreted too restrictively in the past and ought to be read in the light of subsequent decisions of the domestic and Strasbourg courts’, and (in paragraph 60) that ‘some of the [Strasbourg] Court's decisions indicate that family life between adult children and parents will readily be found, without evidence of exceptional dependence’. It went on to say (in paragraph 61):
‘61. Recently, the [European Court of Human Rights] has reviewed the case law, in [AA v United Kingdom [2012] Imm. A.R.1], finding that a significant factor will be whether or not the adult child has founded a family of his own. If he is still single and living with his parents, he is likely to enjoy family life with them. …’.
The Upper Tribunal set out the relevant passage in the court's judgment in AA v United Kingdom (in paragraphs 46 to 49), which ended with this (in paragraph 49):
‘49. An examination of the Court’s case-law would tend to suggest that the applicant, a young adult of 24 years old, who resides with his mother and has not yet founded a family of his own, can be regarded as having ‘family life’.’
19. Ultimately, as Lord Dyson M.R. emphasized when giving the judgment of the court in Gurung (at paragraph 45), ‘the question whether an individual enjoys family life is one of fact and depends on a careful consideration of all the relevant facts of the particular case’. In some instances ‘an adult child (particularly if he does not have a partner or children of his own) may establish that he has a family life with his parents’. As Lord Dyson M.R. said, ‘[it] all depends on the facts’. The court expressly endorsed (at paragraph 46), as ‘useful’ and as indicating ‘the correct approach to be adopted’, the Upper Tribunal's review of the relevant jurisprudence in paragraphs 50 to 62 of its determination in Ghising (family life – adults – Gurkha policy), including its observation (at paragraph 62) that ‘[the] different outcomes in cases with superficially similar features emphasises to us that the issue under Article 8(1) is highly fact-sensitive’.
At [39] – [40] it was held in Jitendra Rai:
‘…the real issue under article 8(1) in this case, which was whether, as a matter of fact, the appellant had demonstrated that he had a family life with his parents, which had existed at the time of their departure to settle in the United Kingdom and had endured beyond it, notwithstanding their having left Nepal when they did.
40. The same may be said of the Upper Tribunal judge's comment that "[there] is no evidence presented as to why the Appellant alone of the six children appears to have remained both within the family home and without employment" (paragraph 22). Even if this was a fair reflection of the evidence explaining how it had come about that the appellant was now the only child of the family in the family home – which I do not think it was – it does not go to the question of whether, as a matter of fact, the appellant himself still enjoyed a family life with his parents – even if his siblings did not.’
14. I appreciate there is no test of exceptionality in relation to family life save that something more than normal emotional ties must exist, that family life should not be interpreted too restrictively and voluntary separation does not end family life. Where a person has established a family of their own that may militate against family life. Dependence means ‘real’ or ‘committed’ or ‘effective’ support.
15. The real issue is whether the test set out in Rai and cited above was fulfilled by the appellants. I was exhorted by Mr West to consider the position as at the date of the hearing notwithstanding that no family life was found in 2017 between the sponsor and these two appellants. The skeleton argument was incorrect to state at 13(b) that the appellants ‘had lived with the sponsor until she entered the UK for settlement’ because the second appellant accepted that she had lived away from the home. There were further matters set out in the skeleton argument which were simply incorrect such as the appellants and sponsor ‘communicate everyday’ [13(c)] which was not born out by the oral evidence of the sponsor (or the call log) and further, that the sponsor is alone (see Council tax statement for 23/24 which has the sponsor living with her daughter and there was no indication of any change in this position). At 13(f) the skeleton argument also stated that the appellants ‘have not gained any independence from the sponsor in any way’. I accept that the position put forward in the skeleton argument did not necessarily reflect the evidence of the sponsor and appellants.
16. I accept that the sponsor was a vulnerable witness owing to her blindness and illiteracy but she coped well with the hearing and her oral evidence was candid. At the appeal hearing the sponsor suggested that she simply signed the witness statement as written for her. Mr West acknowledged her oral evidence was credible albeit it was not helpful of the appeals. I prefer the sponsor’s oral evidence to that of her witness statement with which there were a number of difficulties. For example. in her witness statement she stated that the appellants had never been able to find work in Nepal, which contradicted her oral evidence, and that she and the appellants spoke to each other almost every day, which contradicted the call logs. At [15] the sponsor stated in her witness statement that while they ‘were married before they have always been dependent on me financially and emotionally’. That was undermined by the preserved finding that both the appellants were independent as at 2017. I note that the sponsor also stated that the second appellant’s children were ‘all grown up and independent’ of her. There was no explanation as to why those grandchildren did not care for the second appellant herself and following the Nepalese culture.
17. The first appellant stated at [18] of his witness statement that he had never worked and had never been able to find work in Nepal and that in part was because the family had no contacts. That contradicted the sponsor’s oral evidence. That she is blind and illiterate does not mean that she is cognitively challenged and there was no medical evidence to that end despite the provision of the NHS medical notes. Indeed she has managed to travel as recently as 2024. The evidence from the sponsor was that there had been labouring jobs. I appreciate that I am focussing on the date as at the hearing but to state that he had never worked and yet had a family with three children is simply not credible. At [17] of his witness statement 30th April 2024 the first appellant stated, ‘After the death of my father, my mother solely took over the responsibility, and she continues to support me financially and emotionally’. That statement contrasted sharply with the preserved finding that in 2017 he was independent. There was no information in his statement of his independence at that date. As the first appellant stated both his children were now grown up. There was no information on their income or contribution. I have no doubt that the economy of Nepal is challenged but I find his statement unreliable and not candid nor transparent.
18. The first appellant also stated he had a very close and loving relationship with his mother. By contrast the sponsor gave evidence that she seldom spoke to him and again I take into account that she travelled in 2024 but I am not persuaded that the emotional relationship was anything other than normal relations between mother and son.
19. I also appreciate that there do not have to be regular transmissions of money to equate necessarily with ‘committed’ but the source of the funds was according to the sponsor not hers.
20. In terms of the second appellant she in her witness statement stated that she married in her teens and at [9] ‘though I was married, I remained financially and emotionally dependent on my mother’ and at [16] ‘I have always been dependent on my mother financially and emotionally’. Whatever the reason (she stated she and her husband were incompatible) these statements also contrasted sharply with the unchallenged judicial finding in 2017 that she was independent and I find the statements exaggerated and unreliable. The second appellant stated that she has no ‘means to support’ herself in Nepal ‘aside from the financial support given by mother’. Like the first appellant she added at [18] ‘I have never worked and have never been able to find work in Nepal’. That contrasted again with the evidence of the sponsor. She added, like the first appellant, both at [18] of their separate witness statements, that s/he could not turn ‘to my other siblings for support’ .
21. I appreciate that the mother has travelled to Nepal in 2019, 2022 and November 2023 to 6 February 2024 but as she confirmed there are 6 or 7 people living in the house.
22. In terms of the family life of the sponsor, on the one hand both witness statements of the appellants refer to culture in the family being the ‘most important thing’ and that children look after their elderly parents in their old age but at the same time indicate that the two siblings granted visas in 2016 and 2018 to enter the UK and who must have had family life with the sponsor now state that they (Ramprakash and Mila) are ‘now married and live separately from their mother in the have families of their own to care for; the implication being that they cannot care for the sponsor. Those statements thus contain inherent contradictions although they do stated that they ‘do their best to support our mother’ they must work to provide for their respective families.
23. The issue of financial commitments was raised in the refusal letters and it was stated that limited details as to the commitments in Nepal were provided. In my view the overall financial picture in Nepal was not set out save for an assertion that the appellants depended on their mother for their financial needs. Without a clear picture of the financial needs as to expenses it is not clear whether what financial needs were being met by the sponsor. There were details of the sponsor’s financial commitments in the UK but not those of the appellants.
24. The Dharan Sby Metropolitan City certificates dated 21st August 2023 with reference to each appellant state that they are currently living under the ‘care of her mother till now without employment in any government and non government organisations’ and imply that neither appellant has had work. In view of the evidence I have cited above I find these certificates unreliable.
25. From the Swindon council tax bill of 2023/2024 for the sponsor it is clear that she is not receiving a single person’s allowance and appears to be living with Uma Rai. On the bank statement this is listed as ‘Miss Uma Rai’ which I conclude is correct as per the family registration document. It is clear that she is a sibling of the appellants and who applied with the sponsor at the time of settlement and there is no indication that she no longer lives with the sponsor. The witness statements confirm that Uma is working. It is clear from the bank statements that it is from this account that payments are made to and from various ‘Rai’ (none appeared to be the appellants) and payments received from Bhesh Magar who is the son in law of the sponsor. There was no witness statement from Uma Rai but I note the oral evidence given by her in the FtT (ostensibly on behalf of her mother) was that no one else lived with the appellants in Nepal. That was directly contradicted by the sponsor’s own oral evidence before me. Uma Rai also stated that sometimes she sent money to the appellants and sometimes it was her sister or brother in law in the UK but it was always the sponsor’s money. Uma Rai did not attend to give oral evidence before me and I prefer the sponsor’s oral evidence as to the source of the funds particularly in view of the bank statements themselves.
26. The transfers of money are as follows: the Ria Financial Services Ltd transfer dated 2nd November 2021 and this is to the first appellant and from Mila Rai not the sponsor; the Taptap send confirmation receipts dated 10th February 2024 and 2nd March 2024 show transfers to the second appellant from Bhesh Bahadur Magar (sponsor’s son in law), not the sponsor, as are those to the first appellant dated 14th February 2024 and 17th March 2024. The sponsor in her evidence confirmed that these funds were indeed sent from the funds of Bahadur Magar and then that she ‘borrowed’ the money. I do not accept that a pensioner would borrow the money from her working children in the UK. In oral evidence the appellant confirmed that the money transmissions to Nepal were from her son in law’s own money and he sent it when she requested. She then stated he gave her a loan and he arranged the funds whenever requested. In other words her evidence changed. I take into account the said vulnerability of the sponsor but I do not find that she was cognitively impaired.
27. The supplementary bundle included further Taptap confirmation receipts from Bhesh Bhadur Magar dated 18th February 2025, 26th of February 2025,26th June 2025 and 4th of August 2025 to the second appellant. These transactions do not appear to have emanated from the account of the sponsor and bearing in mind the evidence of the sponsor I am not persuaded that she funds the appellants in Nepal. Mr. West submitted that the sponsor was nonetheless the “reason” for the transfer of funds but this could simply be sibling ties.
28. In terms of the family home the sponsor confirmed that this was in fact a rented home and that is consistent with the visa application forms of the appellants. The family home was in fact sold some time ago to pay for the medical expenses of the father and must have been before 1996 when he died. As I stated above there was a very limited picture as to the commitments in Nepal and the sponsor confirmed that there were six or seven people living in the house in Nepal. It was not clear that the rent was being paid by the sponsor. The home was not owned by this sponsor and thus it could not be argued that she funded the appellants by providing them with a family home.
29. I do not accept on the evidence provided overall that the appellants are dependent financially on the sponsor.
30. I have considered the ‘contact’ screenshots and for which Ms Rushforth contended that there was no evidence as to whose accounts these belonged to although the name of the sponsor appears within the screenshots. The relevant year is not apparent although the respondent’s review before the FtT noted that these only dated from February 2023 to March 2023. As the sponsor is blind it is likely that these accounts were set up by the appellant’s siblings in the UK. No further communications were put forward and it is not clear whom are the recipients of the calls. Indeed the sponsor stated that she seldom spoke to the first appellant and although she ‘frequently’ spoke to her daughter which she then depicted as once a month, nothing in the limited documentary evidence, evidence of the trips to Nepal by the sponsor or the oral evidence indicated to me anything more than normal emotional ties.
31. When assessing family life I have applied Rai and have not expected any form of exceptionality in relation to family life. I found various aspects of the evidence unreliable as I have referenced above.
32. I find thus there is no family life and as such the historic injustice does not simply outweigh the public interest such that entry clearance should be allowed on this basis alone.
33. I do not accept that private life has been established and for this I rely on [37] to [45] of Ali v Secretary of State [2024] EWCA Civ 372. There is no positive obligation on the Secretary of State to admit someone for the purpose of developing a private life in these circumstances. The appellants are in Nepal and have never lived in the UK,
34. Even if there were private life for the appellants in the UK, based on the tangential rights of the sponsor or from previously forged relationships, which I do not accept, the appellants cannot fulfil the immigration rules (and this they do not dispute), have not provided any evidence they can speak English or will be financially independent (further to s117B of the Nationality Immigration and Asylum Act 2002. The appellants have always lived in Nepal and as per Pun v Secretary of State [2017] EWCA Civ 2106 historic injustice will be afforded much less weight if there is no family life. In Pun it should be noted both appellants had entered the UK independently of their Gurkha relations but then moved in with them and this raised the issue of private life. These are mature adults in Nepal and four of the siblings remain in Nepal. The sponsor has support from her family members in the UK and indeed lives with one of them.
35. I appreciate that the father who died in 1996 gave exemplary service as a Gurkha and I factor in limited historic injustice but on the facts of this appeal the relevant thresholds are simply not met and the refusal proportionate.
36. As per Agyarko [2017] UKSC 11 I am not persuaded even if there were private life (which I do not accept) I do not find, and the evidence was simply not presented, that there would be unjustifiably harsh consequences as to the refusals.

Notice of Decision
The appeals are dismissed on human rights grounds.

Helen Rimington

Judge of the Upper Tribunal
Immigration and Asylum Chamber

11th September 2025