Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case Nos: UI-2024-005851
UI-2024-005852

First-tier Tribunal Nos: HU/63146/2023
LH/02287/2024
HU/63144/2023
LH/02286/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On 11 September 2025

Before

UPPER TRIBUNAL JUDGE SHERIDAN

Between

Ramesh Gurung (First Appellant)
Puspa Kumari (Second Appellant)
(NO ANONYMITY ORDER MADE)
Appellants
and

The Secretary of State for the Home Department
Respondent

Representation:
For the Appellants: Ms D Revill, Counsel instructed by Everest Law Solicitors
For the Respondent: Ms L Clewley, Senior Home Office Presenting Officer

Heard at Field House on 9 June 2025

DECISION AND REASONS
1. The appellants are a brother and sister from Nepal, born in 1979 and 1980. They are the children of a former Ghurkha soldier who (along with his wife) is present and settled in the UK. I will refer to the appellants’ father as “the sponsor”.
2. On 30 August 2023 the appellants applied for entry clearance to join the sponsor and his wife (their mother) in the UK. The applications were refused on 12 October 2023. They appealed to the First-tier Tribunal where their appeal came before Judge of the First-tier Tribunal Murray. Judge Murray dismissed their appeal. The appellants appealed to the Upper Tribunal, where their appeal was considered by a panel comprising of Deputy Upper Tribunal Judge Walsh and myself. By a decision issued 22 April 2025 (a copy of which is appended to this decision) we set aside the decision of the First-tier Tribunal and directed that the appeal would be remade at a resumed hearing in the Upper Tribunal. The case has now come before me to remake the decision of the First-tier Tribunal.
3. The legal framework was not in dispute. In summary, the burden is on the appellants to establish that:
(a) they have a family life with the sponsor and their mother that engages article 8 ECHR, a threshold that requires there to be real, committed or effective support, which goes beyond what could be characterised as “normal emotional ties”: see Rai v ECO, New Delhi [2017] EWCA Civ 320; and
(b) that refusing them entry constitutes a disproportionate interference with the family life they enjoy with the sponsor and their mother. In cases, such as this, where there has been a “historic injustice” because a former Ghurka soldier ought to have been, but was not, given the opportunity to settle in the UK following his military service, the case law is clear that the historic injustice must carry significant weight on the appellants’ side of the balance in the proportionality asessment. As explained in Ghising and others (Ghurkas/BOCs: historic wrong; weight) [2013] UKUT 567 [59]:
“Historic injustice will carry significant weight on the appellant’s side of the balance and is likely to outweigh the matters relied on by the respondent where these consist solely of the public interest in maintaining a firm immigration policy.”
4. I heard evidence from the sponsor, the sponsor’s wife, and the sponsor’s son, Harry, who lives in the UK, having succeeded in an appeal against a decision to refuse to grant him entry in 2022.
5. The undisputed evidence is that the sponsor provides – and has done for at least several years - a not insignificant amount of financial support to the appellants. The most significant source of financial support is the sponsor’s army pension, which is approximately £340 a month. The documentary evidence demonstrates that the sponsor and his wife do not use the pension and it is used exclusively by the appellants who have access to it and withdraw money from it regularly. A second source of support is regular transfers by the sponsor to the appellants of around £100 a month.
6. The evidence indicates that the sponsor and the appellants keep in close contact and have a close relationship where they are concerned about each other’s wellbeing.
7. Whilst the regular contact between the sponsor and appellants indicates that the appellants and sponsor have a close relationship characterised by love and affection, it does not, in my view, establish that there is effective, real or committed emotional support between the sponsor and appellants that goes beyond the norm that typically exists between a parent and adult child and which would justify a finding that family life engaging Article 8 exists. The evidence does not establish that the emotional connection and support between the appellants and the sponsor is sufficient to engage Article 8.
8. However, in contrast, I am satisfied that the evidence does demonstrate effective, real and committed financial support. The sponsor is on a relatively low income in the UK and he transfers approximately £100 a month to the appellants to support them. Moreover, he makes available to them the entirety of his military pension, which is a significant share of his overall monthly income. The money that the sponsor sends to, and makes available to, the appellants is a substantial amount of money in Nepal; and it is a substantial amount of money for individuals in the financial circumstances of the sponsor and his wife.
9. The respondent argued that the appellants have not demonstrated that the funds received from the sponsor (and taken from his pension) are used for their basic needs, or that they are unable to earn funds for themselves. I agree. However, it does not matter that the appellants could earn income themselves or may have other sources of income that they use for their basic needs. What matters, for the purpose of establishing whether article 8 is engaged, is that the sponsor has provided (and continues to provide) a significant amount of regular financial support to the appellants. This financial support is effective, real and committed and as such is sufficient for the threshold for the engagement of Article 8 ECHR to be met.
10. As family life is engaged, it is necessary to proceed to address whether the respondent’s interference with family life (ie refusing the appellants’ entry to the UK) is a disproportionate interference with it.
11. If this were not a case concerning a Ghurka ex-serviceman the appellants’ article 8 claim would be hopeless. This is because they do not satisfy the requirements of the Immigration Rules and the public interest in the maintenance of effective immigration controls would outweigh, to a very substantial extent, the considerations weighing in favour of granting entry clearance.
12. However, this is a “Gurkha case”; that is, a case where the sponsor belongs to a class of person (Ghurka ex-servicemen) who were wrongly treated, in immigration terms, in the past; and where that injustice should be recognised in dealing with applications made now. The case law makes clear that in an article 8 proportionality assessment the historic injustice faced by Ghurka ex-servicemen should outweigh the public interest in effective immigration controls, so that it is only where another factor is weighing in favour of refusal (such as the commission of criminal offences or a poor immigration record) that the historic injustice can be outweighed by public interest considerations. See the discussion of this in Patel (historic injustice; NIAA Part 5A) [2020] UKUT 00351(IAC). The respondent has not identified any public interest weighing against a grant of entry clearance other than the maintenance of effective immigration controls. Accordingly, the weight that I must attach to the historic injustice suffered by the sponsor means that balance under article 8 falls in favour of the appellants. I therefore allow the appeal on the basis that refusing the appellants’ entry to the UK breaches article 8 ECHR and therefore the respondent’s decision was unlawful under section 6 of the Human Rights Act 1998.
Notice of Decision
13. The appeal is allowed on human rights grounds.
D. Sheridan

Judge of the Upper Tribunal
Immigration and Asylum Chamber

1 September 2025

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2024-005851/UI-2024-05852

First-tier Tribunal No:
HU/63146&63144/2023

THE IMMIGRATION ACTS

Decision & Reasons Issued:

…………………………………

Before

UPPER TRIBUNAL JUDGE SHERIDAN
DEPUTY TRIBUNAL JUDGE WALSH

Between

RAMESH GURUNG
PUSPA KUMARI GURUAN
(NO ANONYMITY ORDER MADE)
Appellant
and

ENTRY CLEARANCE OFFICER
Respondent

Representation:
For the Appellant: Ms. Fisher, Counsel instructed by Everest Law Solicitors
For the Respondent: Mr. Wain, Senior Presenting Officer

Heard at Field House on 7 March 2025

DECISION AND REASONS
1. This is an appeal against a decision of Judge of the First-tier Tribunal Murray (“the judge”) dated 21 October 2024.
2. The appellants are Nepalese nationals. Ramesh Gurung was born on 5 February 1980. Puspa Kumari Guruan was born on 17 June 1979. The appellants are siblings.
3. On 30 August 2023, the appellants applied to settle in the United Kingdom as the adult dependent children of their father, Ram Prasad Gurung, a former Gurkha soldier who was granted settlement in the United Kingdom on 18 December 2009.
4. On 12 October 2023 the respondent refused the appellant’s application, determining that the appellants failed to satisfy the criteria under relevant provisions of the Immigration Rules and that Article 8 of the European Convention on Human Rights was not engaged as the appellants had not established that family life existed with the sponsor and if Article 8 was engaged, the decision was proportionate. This decision was maintained in a respondent’s review.
5. The appellants’ appeal to the First-tier was limited to the respondent’s rejection of their claim under Article 8.
6. We note at the outset that the appellants’ brother, Hari Prasad Gurung, was granted leave to enter in 2022 following a successful appeal to the Upper Tribunal. We did not have sight either of the original decision of the First-tier, the initial appeal, nor the remaking decision of the Upper Tier allowing Hari Prasad Gurung’s appeal.
First-tier Tribunal Decision
7. The judge observed that the situation of the two appellants was different and dealt with them in turn. It was common ground the first appellant had married and formed a family leaving his parents’ home in 2005. The sponsor left for the UK in 2010, his wife followed the year after and the unchallenged evidence was that the sponsor asked the first appellant to return with his family to the parent’s home to look after the property.
8. The judge found at [22] that at the point of the sponsor’s departure, the appellant no longer had family life with his parents.
9. The judge then went on to consider whether the first appellant re-established family life with the sponsor after his relationship broke down in 2016 and he went to live with his brother Hari as advised by the sponsor.
10. The judge accepted the following facts [24-25]:

(a) The sponsor annually visited the appellants in Nepal except during period of Covid travel restrictions and at other times to save money to fund the appeals.
(b) The sponsor sent money to appellants’ brother Hari who used the money from the withdrawals shown on sponsor’s bank statement for joint bills as they shared accommodation
(c) The appellants and Hari are likely to have shared food
(d) The ATM withdrawals since August 2022 (it being unchallenged that the source of which was the sponsor’s pension) are likely to have been for the benefit of the appellants
11. However, the judge was not satisfied there was financial dependence between 2019-2022 given the absence of bank statements and money transfers in that period [25] nor was the judge was satisfied that the evidence demonstrated that the first appellant established family life with his parents since returning to live with his siblings after his marriage broke down. Evidence of Viber calls was taken into consideration but the judge found it demonstrated no more than the normal emotional relationship between an adult son and his parents. The judge found that the first appellant did not enjoy family life with his parents and family life did not resume as they have not cohabitated since 2005 and thereafter their ties have been those between an adult child and parents.
12. With respect to the second appellant, the unchallenged evidence was that she was unmarried and unemployed. As to the period of time the second appellant lived at the family home, the judge observes that the second appellant does not say exactly where she was living when the parents left for the UK. At [27] the judge finds that the second appellant was not living at the family home when the parents left for the UK as if she had it would have been stated explicitly. The judge was not satisfied that family life existed between the second appellant and the father at the time of the parents’ departure given the lack of evidence as to the relationship at this point.
13. The findings regarding financial dependency in relation to the first appellant were applied to the second appellant. Whilst accepting that there was a higher degree of communication between the second appellant and her parents, the judge was not satisfied that this demonstrated more than a normal relationship between an adult child and her parents, ultimately finding that the second appellant has not demonstrated that she had “real effective or committed support.
14. The judge made no adverse credibility findings.
15. Ground of Appeal
16. The sole ground of appeal is that the Judge materially erred in failing to give any, or any adequate, reasons for finding that the Appellants had not demonstrated family life, specifically by failing to provide reasons as to why the father’s provision of financial support to the appellants did not demonstrate real, effective or committed support.
Discussion
17. In considering our decision we have reminded ourselves of the following principles in particular:
(a) The test for adult family members to establish family life is to show there is real, committed or effective support. Something more than normal emotional ties alone must be shown. Kugathas V Secretary of State for the Home Department [2003] EWCA Civ 31.
(b) The threshold of real, committed or effective support was emphasised in Rai v Entry Clearance Officer, New Delhi [2017] EWCA Civ 320 confirming that there is no requirement of exceptionality and that “all depends on the facts, and that there must be something more than the love and affection between an adult and his parents or siblings which will not itself justify a finding of family life.”
(c) What may constitute an extant family life falls well short of what constitutes dependency” Patel, Modha and Odera [2010] EWCA Civ 17 [14]
(d) Adult children may still have family life with parents “who are now settled here not by leave or by force of circumstance but by long-delayed right” Patel, Modha and Odera [2010] EWCA Civ 17 [14]
(e) With respect to proportionality, “Historic injustice will carry significant weight on the appellant’s side of the balance and is likely to outweigh the matters relied on by the respondent where these consist solely of the public interest in maintaining a firm immigration policy.” Ghising and others (Ghurkas/BOCs: historic wrong; weight) [2013] UKUT 567 [59]
18. We also reminded ourselves of principles governing the jurisdiction of the UT as distilled at [26] in Ullah [2024] EWCA Civ 201, the Practice Direction of the Senior President of the Tribunals: Reasons for Decisions, 4 June 2024 and the headnote in Azizi (succinct credibility findings, lies) [2024] UKUT 00065:
A determination in relation to an appeal must deal with the principal controversial issues presented to the judge, and it may be possible in some circumstances to provide adequate reasons in relation to those issues succinctly, provided they deal with the points raised by the party and enable the parties to understand why the decision has been reached.
19. In submissions before us, Ms. Fisher argued that the judge failed to properly engage with the “real” “committed” and “effective” support test. In particular, she submitted that the judge did not deal with the unchallenged evidence that the sponsor provided support to the appellants over a substantial period of time and they had no other source of financial support.
20. Ms. Fisher also argued that the judge erred by presuming that second appellant was not living at the family home at the time of father’s departure and by placing undue weight/taking into account that the sponsor and appellants had been living apart since the sponsor left for the UK.
21. Mr. Wain submitted that when the decision is read in entirety it is clear that the judge had in mind and applied the correct test in determining whether the appellants had established family life. He argued that the judge took account of the relevant factors including the gaps in the bank statements and transfers, the fact that the first appellant had formed a family and had properly considered whether family life had been re-established thereafter. Further or in any event, Mr. Wain submitted that the initial decision to refuse the application was proportionate.
22. At [15]- [17] the judge set out the relevant authorities and we are clear that the judge had the correct test in mind. The issue for us was whether that test was properly applied and adequate reasons given.
23. Having set out in [25] the evidence which was accepted, the judge immediately goes on to find that the evidence did not demonstrate that the first appellant re-established family life with his parents since returning to live with his siblings but provides no rationale for so finding. It is therefore unclear to us how, if at all, the judge considered the accepted evidence which demonstrates financial support over a considerable period of time, in the context of the threshold test of “real” “effective and “committed” support.
24. In the absence of a clear rationale, given the repeated references to “dependency” we are uncertain as to whether the judge properly “read down” dependency in accordance with the authorities.
25. There is also a lack of reasoning to explain the judge’s finding at [25] that family life between the first appellant and the sponsor “did not resume as they have not cohabitated since 2005.”
26. In respect of the second appellant, we agree with the judge that the evidence is vague in relation to the second appellant’s living arrangements and relationship with the sponsor at the time of the parents’ departure [27]. However, even if the second appellant was not living in the family home at the time of the sponsor’s departure, there was accepted evidence that she had benefited from financial support from the sponsor since at least 2016, had not formed her own family and there was no evidence of any other form of financial support. The judge’s reasoning is deficient because it fails to explain how, and to what extent, this evidence was factored into the finding at [28] that the second appellant has not demonstrated “real support,” “effective support” or “committed support.”
27. We are unsure as to the judge’s use of the word “independently” in [28] in relation to the time the second appellant lived with her siblings given that the evidence was that the second appellant lived with her sister looking after her children for two years and lived with the first appellant and their brother Hari being supported by the sponsor. It is not clear whether taken into account the second appellant being considered to have lived independently was taken into account in the decision making process.
28. As set out above, the absence of a clear rationale gives rise to concerns as to whether material evidence was taken into account and/or whether immaterial facts were taken into consideration.
29. We find, therefore, that the judge materially erred in failing to provide adequate reasons to explain why he considered that the accepted evidence as to the financial support provided by the sponsor did not establish that there was family life.
30. Given our decision, we do not need to consider proportionality. Nevertheless we observe that as the respondent averred no justification for interference with the appellants’ Article 8 rights other than the maintenance of immigration control, Mr. Wain’s submission on this point would be undermined by Ghising [2013].
Notice of Decision
31. The decision of the First-tier Tribunal involved the making of an error of law.
32. The decision will be remade at a resumed hearing in the Upper Tribunal.
33. We considered whether any findings of the First-tier Tribunal should be preserved. However, we have not had sight of the remaking decision in respect of the appellant’s brother Hari Prasad Gurung which may contain information relevant to the appellant’s appeal. As such we did not consider it appropriate to preserve any findings of fact.
Directions
34. The appellants shall file the remaking decision in their brother Hari Prasad Gurung’s case at least fourteen days before the resumed hearing.
35. Parties have permission to rely on evidence that was not before the First-tier Tribunal. Any such evidence must be filed with the Upper Tribunal and served on the other parties at least fourteen days before the resumed hearing

Martha Walsh

Deputy Judge of the Upper Tribunal
Immigration and Asylum Chamber

10 April 2025