Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2024-006006

First-tier Tribunal Nos: HU/58047/2023
LH/04310/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:

7th August 2025

Before

UPPER TRIBUNAL JUDGE LOUGHRAN

Between

Puran Tamang
(NO ANONYMITY ORDER MADE)
Appellant
and

The Secretary of State for the Home Department
Respondent

Representation:
For the Appellant: Ms K McCarthy of Counsel, instructed by Everest Law Solicitors
For the Respondent: Ms L Clewley, Senior Home Office Presenting Officer

Heard at Field House on 10 July 2025

DECISION AND REASONS
Introduction
1. The appellant appeals with the permission of First-tier Tribunal Judge J Dixon against the decision of First-tier Tribunal Judge Lloyd-Lawrie (‘the judge’) dated 26 June 2024.
Background
2. The appellant asserts a right to enter on Article 8 grounds as an adult dependent child of the sponsor, his father Bhim Bahadur Taman, a former member of the Brigade of Gurkhas, who has been settled in the UK since 2010.
3. In a decision dated 23 June 2023 the respondent refused the appellant’s human rights claim.
The Appeal to the First-tier Tribunal
4. The appellant lodged an appeal against that decision. The respondent maintained her decision in a review dated 29 April 2024 and the appeal came before the judge on 26 June 2024.
5. The appellant was represented by Mr West of counsel. The respondent was not represented.
6. The judge identified the following as the hearing was in dispute:
i) Does the appellant enjoy family life with the sponsor?
ii) Is the refusal a breach of Article 8 of the ECHR?
7. The judge heard evidence from the sponsor through a Nepalese interpreter.
8. In a decision dated 26 June 2024 the judge found that Article 8(1) was not engaged. The judge stated:
“I find that the appellant enjoys a close bond with his father and step-mother. I find that since his parents have come to the UK he has seen them on several occasions but these are not as regular as he stated in his witness statement and the position stated by the sponsor of seeing the appellant 2-3 times during the 10 years he worked abroad was accurate. I accept that the appellant was having some financial support from the sponsor and was living in the same home as the sponsor when the sponsor left for the UK and has been having varying levels of financial support since. I however find that the appellant has formed a family of his own and despite the divorce certificate, is living as a family with his wife and two daughters and has his own private life in that he is working, albeit no longer in a regular role.”
9. The judge concluded that the appellant did not have a family life with the sponsor and that he enjoys a typically close relationship with his father and stepmother but the family life he does enjoy is with his partner and children in Nepal.
The Appeal to the Upper Tribunal
10. The appellant applied for permission to appeal to the Upper Tribunal relying on two grounds:
i) the judge misdirected herself as to the status of the appellant’s witness statement, in particular the judge erred by directing that she must give the appellant’s witness statement little weight because he did not give evidence live so as to be tested on it; and
ii) the judge erred in her self-direction as to Article 8(1) and the issue of independence.
11. The First-tier Tribunal granted permission on 12 August 2024. Permission was granted in the following terms.
“The appellant claims to have family life for the purposes of Article 8 with his father (retired Ghurkha) who is settled in the UK. The grounds assert that the Judge erred in considering it mandatory to attach no weight to the appellant’s witness statement as she had no oral evidence from him and also erred as regards the test for Article 8. Both grounds are arguable although the first appears to be stronger.”
12. The respondent did not serve or file a response under Rule 24 of the Tribunal Procedure (Upper Tribunal) Rules 2008.
The Hearing
13. At the hearing I heard submissions from Ms K McCarthy on behalf of the appellant and Ms L Clewley on behalf of the respondent.
14. I also informed the parties that although it had not been raised in the appellant’s grounds I had concerns in respect of the judge’s consideration of the sponsor’s evidence. Both Ms K McCarthy and Ms L Clewley addressed me on this issue.
Discussion
15. In her consideration of the sponsor’s evidence the judge records that she found the sponsor “an honest and credible witness.” The judge notes that “even though his oral evidence differed in parts from his written evidence…’the sponsor was at great pains to ensure that he got his evidence right and was clear.” She recorded that she placed considerable weight on his evidence.
16. In his witness statement, the sponsor gave the following evidence:
“12. Puran informed me of his romantic relationship with Rakhee Tamang. We accepted their relationship and organized their marriage. My granddaughter Rihanna Tamang (DOB 04.02.2010) was born a few years after their marriage. Initially I did not observe any issues in their relationship. However, I witnessed the arguments in their relationship grow increasingly. Puran did not have a sustained form of income and financial issues had become a major cause of conflict. I was receiving some pension by this time. I supported Puran financially with which he supported his family.
[…]
16. I was informed of the birth of my grandson Kunsang Tamang (DOB 10.06.2016) by Lachhmi. I had been told that Rakhee was very upset and angry about the fact that Puran had been unable to make it to Nepal for the birth of their son. She made demands that Puran return to Nepal for good.
[…]
17. COVID was a very difficult time for us as a family…’ Rakhee left the family home with my grandchildren to live with her family. I was informed that she later filed for divorce.
18. Puran returned to Nepal for good in 2022. I travelled back to lend him support. I made many attempts to speak to Rakhee and return to the family home. I had wanted for their marriage to work. Unfortunately, she did not heed. Their divorce was finalized, and she took the grandchildren with her. Puran had become very hopeless and lonely.”
17. As highlighted above, the judge indicated that there was some difference between the sponsor’s evidence in his witness statement and his oral evidence before the judge. It is clearly the sponsor’s evidence in his witness statement that the appellant and his wife are divorced and are living separately.
18. The judge records the sponsor’s oral evidence as follows:
“9. I heard evidence from the sponsor only who confirmed the contents of his 2 witness statements. As the respondent was not represented, I put the points from the respondent’s review to the sponsor. In answering the questions, he confirmed that his son now rents a home in Terai where the school is for his daughter. In re-examination he confirmed that that had been the case for around 5-6 months. Further, he advised that his son, his son’s wife and his daughters used to live in his home but they had had to move due to requiring schooling for their daughters. When asked to again clarify if the son had his own family, the sponsor said yes he has a wife and daughters. He confirmed that his son had previously worked outside Nepal and that when he was working there he was sending money to his own wife, the sponsor’s daughter-in-law. In re-examination he confirmed that the appellant was paying his rent by the money he earns from doing a ”little bit of work as a labourer” and that the rest of the money is sent from the sponsor.”
19. Ms Clewley sought to persuade me that it is clear from the extract citing above that it was the sponsor’s oral evidence that the appellant was in a relationship with his wife at the time of the hearing. I am not persuaded by that submission. I cannot conclude from the record of the sponsor’s evidence that this was his evidence before the judge, particularly in the circumstances where it was the sponsor’s evidence in his witness statements (which he adopted without correction) that they were divorced and living apart.
20. If indeed, it was the sponsor’s oral evidence that the appellant was in a relationship with his wife at the time of the hearing it is not clear how the judge reconciled that evidence with the evidence in the sponsor’s witness statement that they were divorced and living separately.
21. I am satisfied that that the judge materially erred in her approach to the sponsor’s evidence. It is not possible to understand whether the judge accepted or rejected the sponsor's evidence in his witness statements and if she rejected it why she did so having found him to be a honest and credible witness.
22. I am also satisfied that the judge materially erred in law in her approach to the appellant’s witness statement. At paragraph 12 the judge finds, “…’that the appellant did not, understandably, give evidence, and that I must give his statement little weight as he did not give evidence live so as to be tested on it, if necessary.”
23. The appellant’s witness statement included the following:
“18. My father has always been my biggest source of support. I have continued to live in the family home which is in his name. He has returned every year to visit me and lend support. He gives me cash on every visit knowing that I am jobless. He has been sending me money regularly since my return to Nepal from Macau….’
19. I am in regular contact with my father, stepmother and siblings in the UK. Mostly we communicate through Facebook Messenger. I have been left alone in the family home. I feel lonely and helpless. I was very disheartened by my refusal.”
24. The appellant’s witness statement also addressed his relationship with his wife:
“11. I met Rakhee Tamang when I was quite young. We formed a romantic relationship. Our families were not accepting of a live in relationship, so we decided to get married in 2006…’ Things were alright in the beginning, and she supported me. Our daughter Rihanna Tamang (DOB 04.02.2010) was born a few years after the marriage. Rakhee became increasingly possessive and controlling after our daughter’s birth. My poor income was often the reason for arguments. She insulted me for not being able to provide for our daughter.
[…]
13….’ I found a job in a casino in Macau as a security guard and left for Macau in 2012.
[…]
15. A few months after my return to Macau after a holiday in Nepal in 2015, Rakhee informed me that she was pregnant with our second child. Our son Kunsang Tamang (DOB 10.06.2016) was born in my absence. Rakhee was very upset and angry about the fact that I was unable to support her during pregnancy and childbirth. She gave me an ultimatum to return home permanently. Knowing the dire situation in Nepal with jobs, I requested her to understand my plight. I had no choice to continue working in Macau to provide for my family.
16. I had intended to give up the job and return to Nepal permanently. Unfortunately, COVID emerged and destroyed my plans….’ Rakhee informed me that she is no longer able to cope with me being abroad and demanded a divorce.
17. I returned to Nepal for good in 2022…’ Rakhee had left the children and returned to her maternal home and my father was in the UK. My father returned to Nepal to support me. He implored Rakhee to work on our marriage. She vehemently refused to do so and filed for divorce. She took our children with her.”
25. The appellant’s witness statement contains clearly relevant evidence. In the decision refusing the appellant’s human rights claim the respondent was not satisfied that the appellant had established family life with the sponsor. Although the respondent maintained that conclusion in her review, she did not take any specific issues with the appellant’s account as detailed in his witness statement. The respondent acknowledged that witness statements are capable of adding weight to claim, but need to be considered in the round. The respondent stated that when considering them in the round she put little weight on them and submitted that the witness statements were not of significant value. The respondent was not represented at the hearing.
26. I am satisfied that in those circumstances the judge erred by rejecting the appellant’s evidence solely on the basis that he was not available to be cross examined. It is not clear from the decision what (if any) aspects of the appellant’s evidence the judge accepted or rejected.
27. I am also satisfied that the judge materially misdirected herself in law in respect of what was required to establish that Article 8(1) was met. The judge found that “some financial or emotional dependency that goes beyond normal bonds between adult relatives is enough alone when the person had not formed their own independent life.” The judge then found that the appellant had formed his own independent life with his wife.
28. The judge made a significant number of positive findings as to the nature of the relationship between the appellant and the sponsor. The only reason why the judge seems to consider that their relationship did not amount to family life was because she considered that the appellant had a family life with his wife. I am satisfied that the judge materially erred in law in considering this determinative of whether the appellant could also have family life with the sponsor.
Conclusion
29. Looked at as a whole, I am satisfied that the judge materially erred in law and that the decision should be set aside. In light of my findings that the judge erred in her approach to both the appellant and the sponsor’s evidence I am satisfied that no findings of fact can be preserved.
30. Applying the guidance in paragraph 7 of the Senior President’s Practice Statement and AEB v Secretary of State for the Home Department [2022] EWCA Civ 1512 and Begum (Remaking or remittal) [2023] UKUT 00046 (IAC), given the issues and the amount of fact-finding that will be required to do, I consider that the appeal should be remitted to the First-tier Tribunal.
Notice of Decision
(a) There is an error of law in the decision of the First-tier Tribunal. Accordingly the decision of the First-tier Tribunal is set aside.
(b) The decision will be remitted to the First tier Tribunal to be heard by a different judge.
(c) No findings of fact are preserved.

G. Loughran
Judge of the Upper Tribunal
Immigration and Asylum Chamber

24 July 2025