Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2025-000059

First-tier Tribunal No: HU/54929/2021

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On the 20 March 2025

Before

DEPUTY UPPER TRIBUNAL JUDGE KUDHAIL

Between

KISAN GURUNG
(NO ANONYMITY ORDER MADE)
Appellant
and

THE ENTRY CLEARENCE OFFICER
Respondent

Representation:
For the Appellant: Mr. Kashif, Legal Representative
For the Respondent: Mr Tufan, Senior Home Office Presenting Officer

Heard at Field House on 10 March 2025

DECISION AND REASONS

1. The appellant appeals with permission against the decision of First-tier Tribunal Judge L K Gibbs (“the Judge”) promulgated on 27 November 2024, in which the appellant’s appeal against the decision to refuse him entry dated 16 July 2021 was dismissed.
2. The appellant is a national of Nepal, who is the adult son of an ex-Gurkha soldier. He applied for entry clearance to join his mother, the wife of an ex Gurkha soldier (“the sponsor”). The human rights claim was predicated on family life said to exist at all material times between the appellant and the sponsor, in combination with the well known historic injustice issue related to the position of children of former Gurkha soldiers.

First-tier Tribunal Decision
3. The sole issue before the Judge was whether, given the age of the appellant (49), family life exists between him and the sponsor for the purposes of Article 8 ECHR. The Judge found the appellant and sponsor had not lived together since 2014 as he was in Saudi Arabia. Further that she was bound by Judge Bonavero’s decision (from an earlier application ), finding that until 2019 family life did not exist. The Judge found from 2019 -2021, whilst the appellant obtained money from his mothers pension and there was evidence of some remittances, he was leading an independent life. She accepted the appellant lived rent free in the sponsors home on occasions. She found there was no evidence of the appellant’s need for the pension money, thus she did not accept the appellant was ‘dependant‘ upon this money. Therefore, she was not satisfied that there is real, committed or effective support between the appellant and the sponsor. The Judge accordingly, dismissed the appeal.
Permission to Appeal
4. The First-tier Tribunal granted permission in the following terms:
“There are findings in the Decision in respect of the Appellant that he lives some of the time rent-free in a property owned by the sponsor, and that he receives financial support from the sponsor, but no explanation as to why this was not considered real, effective, or committed such as to engage Article 8. Were it engaged, this would be dispositive of the appeal in the Appellant’s favour.”
5. The respondent has not filed a Rule 24 response, but Mr Tufan indicated that the challenge to the decision of the First-tier Tribunal was resisted.
The appeal
6. The appellant appeals on 3 grounds, firstly that the Judge erred in applying Deevaseelan [2002] UKIAT 00702, as she placed weight upon the previous Tribunals findings and should have considered the circumstances before her at the time of the decision. He submitted family life did not have to be continuous or unbroken. In oral submissions, Mr Kashif argued that family life can be established at any point and the current jurisprudence does not require it to have been unbroken. He argued the Judge should have considered the circumstances as presented as at the date of hearing. He relied upon an unreported decision of the Upper Tier, which he argued settled the point. He had served this upon Mr Tufan. The Tribunal clarified that this was an application to use an unreported decision.
7. Mr Tufan objected to the late service and reliance upon an unreported decision, citing there was a protocol to follow and the appellant solicitors had not followed it. He referred to the report decision of AO (unreported determinations are not precedents) Japan [2008] UKAIT 00056 and submitted the practice direction had not been followed. He could not recall exactly which practice direction this was.
8. Mr Kashif, referred to paragraph 17 of the unreported decision and argued this clearly set out that family life did not have a start and end point. It could be established on the facts.
9. Secondly, it was submitted the Judge failed to give adequate reasons for finding that there was not real, committed or effective support, given her accepted findings that there was evidence of financial support and that the appellant lived in the sponsors home. He argued at paragraph 9, the Judge had evidence before her why the appellant needed financial assistance, namely his day to day living expenses, but argued when making findings at paragraph 14 stated that there was no evidence of need. The judge he argued did not give reasons for rejecting the sponsors evidence. He argued Kugathas v Secretary of State for the Home Department [2003] EWCA Civ 31, was clear that the frequency of support nor the need for support was relevant to the question of family life. He argued, that all that what was required was evidence of real, committed or , effective support. Mr Turfan argued that the Judges finding at paragraph 14 where open to her given the previous decision of Judge Bonavero. He relied on AAO [2011] EWCA Civ 840, which he submitted was authority for the proposition that financial dependency was not sufficient to constitute family life under Article 8 ECHR, although he accepted it may do under exceptional circumstances . As to the appellants reliance upon his mother’s house, he submitted the appellant was in his 40’s and this alone does not bring him within the ambit of establishing that there is a family life in existence.
10. Thirdly, Mr Kashif submitted that the Judge misdirected herself in the law, when considering if the support received was real, committed or effective as she sought evidence of necessity. Mr Tufan argued there was no material error of law on this point.
Findings and reasons
Application to use unreported decision.
11. Having carefully considered Kugathus and Rai v ECO [2017] EWCA Civ 320, which set out the jurisprudence on factors to consider when assessing the existence of family life between adults, I am satisfied that these decisions are sufficient for this Tribunal to consider the point raised by Mr Kashif. Therefore, I do not consider I would be materially assisted by the unreported decision. I am also mindful that Mr Kashif provided the unreported decision during submissions and did not comply with condition 11.2 (c) of the Practice Direction 2018.
12. In the circumstances I do not accede to Mr Kashif’s application.
Error of law
13. I have considered the Judges decision with care and exercise appropriate judicial restraint before interfering with it. I am are guided by the Court of Appeal’s approach to challenging a finding of fact: see Volpi & Anor v Volpi [2022] EWCA Civ 464 (05 April 2022) at [2]-[5] in the judgment of Lord Justice Lewison, with whom Lord Justices Males and Snowden agreed. The Court emphasised that the Upper Tribunal may interfere with findings of fact and credibility only where such a finding is ‘plainly wrong’ or ‘rationally insupportable’.
14. I have also had regard to the guidance on judicial restraint in such interference given by the Court of Appeal in Ullah v Secretary of State for the Home Department [2024] EWCA Civ 201 at [26(i)] and [26](ii)] in the judgment of Lord Justice Green, with whom Lord Justices Lewison and Andrews agreed
15. Mr Kashif submitted that the Judges reliance upon Judge Bonavero’s decision was an error in law as she should have considered the facts as at the date of hearing. At paragraph 7, the Judge clearly sets out that she can “ take into account matters that have occurred following that decision. This is a human rights appeal, I must assess the facts as they are before me at this time. The previous decision is therefore my starting point but not necessarily my end point.” The Judge properly applied Deevaseelan as this was binding upon her. The central thread running through the authorities is that an assessment of family life under Article 8(1) is highly fact-sensitive and to be considered in light of the evidence as a whole. There is no misdirection and thus there is no error on law on this point.
16. I am satisfied that there is some force the submission that the Judges evaluation of the facts and in particular the positive findings of the support by way of remittances, payments from pensions and use of the sponsors home [§12] was at odds with her finding that the support was not real, effective or committed support [§14]. The appropriate test for family life as between parents and adult children is set out in Kugathus. The test is disjunctive and not conjunctive. The individual needs to demonstrate real, effective or committed support and the concept of dependency must be understood in that context. There is no requirement for necessity or exceptional circumstances. The Judges finding at paragraph 14, requiring evidence of necessity, demonstrates that the Judge’s approach to the test was flawed and a material misdirection of law on a material matter, thus there is a material error in law.
17. I am satisfied the material error of law identified above infects the entire decision, and that the decision should be set aside in its entirety.
18. I have decided that this case should be remitted to the First tier Tribunal, having applied 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) Bangladesh [2023] UKUT 00046 (IAC). We are satisfied that the nature and extent of the judicial fact finding which is necessary for this appeal to be re-made means that it is appropriate to remit the case to the First-tier Tribunal.

Notice of Decision
The decision of the First-tier Tribunal involved the making of an error of law.
The decision of the First-tier Tribunal is set aside in its entirety.
The decision is remitted to the First-tier Tribunal for a de novo hearing before a judge other than First-tier Tribunal Judge L K Gibbs.

S K KUDHAIL

Judge of the Upper Tribunal
Immigration and Asylum Chamber

18 March 2025