Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2025-000084

First-tier Tribunal No: HU/64612/2023
LH/06672/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On 11 April 2025

Before

UPPER TRIBUNAL JUDGE SARAH GREY

Between

RINA SUBBA
Appellant
and

ENTRY CLEARANCE OFFICER
Respondent

Representation:
For the Appellant: Mr M. West, Counsel instructed by Everest Law Solicitors
For the Respondent: Ms S. Cunha, Senior Presenting Officer

Heard at Field House on 1 April 2025

DECISION AND REASONS
Relevant background
1. The appellant is a citizen of Nepal born in 1978. She is now 47 years of age. This appeal is brought by the appellant against the decision of First-tier Tribunal Judge Rothwell (“the Judge”) dated 27 October 2024, in which she dismissed the appellant’s human rights appeal against the respondent’s decision of 22 November 2023 to refuse her application for entry clearance to join her father who is a former member of the Brigade of Gurkhas. The appellant applied for entry clearance to join her parents on 3 October 2023.
2. The appellant’s father arrived to settle in the United Kingdon in May 2010 and his wife joined him the following year. The appellant’s younger sister, Madina, joined her parents in the UK in 2021.
The decision of the First-tier Tribunal
3. The appellant’s appeal against the respondent’s refusal decision came before the Judge in the virtual region of the First-tier Tribunal on 27 October 2024.
4. The Judge found that the appellant was 46 years old and had travelled to work abroad in Assam, India since she was 18 or 19. The appellant also carries out agricultural work in her village although the Judge accepted that she would not do this during the Monsoon season. The Judge noted that Madina’s statement referred to the appellant “mainly living in Nepal” since 2020 (whereas the appellant’s statement at [7] claimed she had not left her village since that time). The Judge accepted that the appellant stayed at the family home when she was not working in Assam. It was accepted that the sponsor and appellant are in contact but the Judge found that this did not go beyond the normal emotional family ties. The Judge found that there was evidence of just three remittances made by the sponsor to the appellant.
5. At [19] of the decision it states:

“When I look at the evidence of financial support in the round and apply the balance of probabilities, I find that the evidence of Madina is that the appellant appears not always to be in Nepal and there is a lack of evidence relating to financial support from the sponsor and the family in the United Kingdom, which indicates to me that she has not been in Nepal or she has not received financial support.”
6. At [20] the Judge concludes:

“When I look at the evidence in the round, I do not find on the evidence that is currently before me that this support is real, effective, or committed and/or that it goes beyond normal emotional ties between adult relatives.”
7. The Judge dismissed the appellant’s appeal having found that she did not accept there was family life in the legal sense between the sponsor and appellant.
The grounds, permission and error of law hearing
8. Permission to appeal was sought by the appellant on two grounds. The first ground was that the Judge had made a critical mistake of fact in her findings. It was asserted that there had been six money remittances made by the sponsor to the appellant rather than just three as found by the Judge. It was asserted that this was important because of the Judge’s finding that there was a lack of evidence of financial support and this error would have “seriously tainted” the Judge’s view of the issue of financial support in the Kugathas sense.
9. In respect of ground two the appellant asserts that the Judge erred in her analysis of Article 8(1) in failing to attach any or any appropriate weight to the fact the appellant lives in the family home when she is in Nepal.
10. Permission was granted on both grounds by First-tier Tribunal Judge I Boyes. The permission decision stated that “The grounds are clearly arguable. They need no further explanation or elucidation from me. They speak for themselves.”.
11. Regrettably, when granting permission Judge Boyes failed to identify that it was apparent from the appellant’s bundle before the First-tier Tribunal that the Judge had made no factual error in relation to the remittances. It is clear from the remittance receipts adduced that there were indeed just three remittances in favour of the appellant, as correctly stated in the decision. At the error of law hearing Mr West accepted this position and confirmed that he did not propose to proceed with ground one.
12. In submissions Mr West relied on his helpful written grounds in relation to ground two, which I have considered fully. He emphasised that there was a relatively low threshold to establish that Article 8(1) was engaged on the basis of family life and the appellant’s challenge was in respect of the weight to be attached to the finding that the appellant lived in the family home when she was in Nepal. The appellant’s case is that although the Judge acknowledged this matter in her findings, she had failed to demonstrate that this factor had been taken into account in her Article 8(1) analysis.
13. Ms Cunha confirmed that there was no Rule 24 response but that the respondent resists the appeal. In her submission since the challenge was in relation to the matter of weight that the Judge attached to evidence, the relevant question to consider was whether no other reasonable judge would arrive at the same conclusion as the Judge. She submitted that the Judge directed herself and applied the law correctly and addressed the case that the appellant had put to her to determine. The appellant’s case was that she was wholly financially dependent on the sponsor and her sister Madina. The Judge considered the evidence in the round but determined that the appellant had failed to establish her case as put, the Judge referring to a lack of evidence.
14. At the conclusion of the hearing I indicated that I would reserve my decision which I now give with my reasons. I do not find that the grounds have been established.
Discussion and conclusions
15. It is well established that judicial caution and restraint is required when considering whether to set aside a decision of a specialist fact-finding tribunal. The principles and cautious approach to be applied by an appellate court to first instance findings of fact are well established and set out in Volpi v Volpi [2022] EWCA Civ 464 at [2]. I have kept in mind the role of the First Tier Tribunal as an expert Tribunal and bear in mind the principles set out in Volpi and articulated by the Supreme Court in HA (Iraq) v Secretary of State for the Home Department [2022] UKSC 22, 1 WLR 3784 at [72] including:
“(iii) When it comes to the reasons given by the tribunal, the court should exercise judicial restraint and should not assume that the tribunal misdirected itself just because not every step in its reasoning is fully set out - see R (Jones) v First-tier Tribunal (Social Entitlement Chamber) [2013] UKSC 19; [2013] 2 AC 48 at para 25 per Lord Hope.”
16. I accept, as submitted by Ms Cunha that the Judge directed herself correctly on the law. This has not been challenged by the appellant. I further accept there is a relatively low threshold in relation to the matter of whether Article 8(1) is engaged. It is clear, however, that family life cannot be presumed and the determination of whether or not family life exists involves a fact-sensitive assessment in each case. I remind myself of the judgment of Lady Justice Arden in Kugathas [2003] EWCA Civ 31:
“24. There is no presumption that a person has a family life, even with the members of a person's immediate family. The court has to scrutinise the relevant factors. Such factors include identifying who are the near relatives of the appellant, the nature of the links between them and the appellant, the age of the appellant, where and with whom he has resided in the past, and the forms of contact he has maintained with the other members of the family with whom he claims to have a family life.
25. Because there is no presumption of family life, in my judgment a family life is not established between an adult child and his surviving parent or other siblings unless something more exists than normal emotional ties: see S v United Kingdom (1984) 40 DR 196 and Abdulaziz, Cabales and Balkandali v United Kingdom [1985] 7 EHRR 471. Such ties might exist if the appellant were dependent on his family or vice versa. It is not, however, essential that the members of the family should be in the same country. The Secretary of State accepts that that possibility may exist, although in my judgment it will probably be exceptional. Accordingly there is no absolute rule that there must be family life in the United Kingdom, as the Immigration Appeal Tribunal held.”
17. The appellant’s challenge is in essence in relation to the weight that the Judge attached, or failed to attach, to a factor that was said to be in the appellant’s favour; the fact that she lives in the family home when she is in Nepal. In Mr West’s submission the fact that the appellant lives at the family home when she is in Nepal is a significant factor in the Article 8(1) analysis but although the Judge had acknowledged this fact she had given it no weight “in the balancing exercise”.
18. In his submissions and written grounds Mr West relies on Mobeen v the Secretary of State for the Home Department [2021] EWCA Civ 886 at [46] where Carr LJ held that “t]he existence of effective, real or committed support is an indicator of family life. Co-habitation is generally a strong pointer towards the existence of family life..”. He also relied on Uddin v. The Secretary of State for the Home Department [2020] EWCA Civ 338 at [40iii] where the Senior President of Tribunals in the Court of Appeal held that “continuing cohabitation after adulthood will be suggestive of ongoing real, effective or committed support which is the hallmark of a family life.”.
19. It is clear from the passages cited by Mr West from Mobeen and Uddin that the matter of co-habitation is a “strong pointer” and “suggestive” of family life. However, neither case goes so far as to suggest it is conclusive of this issue.
20. On examining the decision under challenge, in my view it is apparent that the Judge conducted a careful fact-sensitive assessment of the appellant’s circumstances. She acknowledged the contact between the appellant and sponsor. She accepted that remittances had been made on three occasions and that when the appellant was in Nepal she would be at the family home.
21. The Judge factored in that when the appellant was in Nepal she would live at the family home in her factual findings at [16] and at [21] where the Judge states “She has been able to live and work as a seasonal worker in Assam for many years, albeit returning to Nepal and living in the family home.”.
22. What was apparently not clear to the Judge from the evidence was how often the appellant was at the family home and for how long. The Judge found that the lack of evidence of financial support indicated that the appellant was either not in Nepal as claimed or has not received financial support.
23. The weight to be given to particular aspects of the evidence is for a first instance judge to decide. Having assessed the weight of the evidence before her the Judge determined that the evidence did not establish the case put by the appellant to the Tribunal.
24. Although the Judge accepted that when the appellant was in Nepal she would stay at the family home, it was not clear on the evidence how much the appellant is in Nepal. There does not appear to have been any or any sufficient evidence that would establish that the appellant was “co-habiting” with the sponsor at the time he left Nepal in 2011 or that she was co-habiting with him at the time of the decision under challenge.
25. In my view, given the various express references made by the Judge to the appellant living at the family home when she was in Nepal, notably including that the end of [21] as the final point before setting out her conclusion at [22] having considered the evidence in the round; it is clear that this factor had been in the Judge’s mind when conducting her overall assessment of the evidence of the appellant’s circumstances and when concluding that she had failed to establish family life with the sponsor in the legal sense. The weight that the Judge attached to this matter was a matter for the Judge and she unarguably reached a reasonable conclusion on the evidence before her in light of the circumstances.
26. In the context where the appellant was unlikely to have been living with the sponsor at the time he left to settle in the UK and where is appears there were inconsistencies in the evidence about whether the appellant had remained in Nepal since 2020 and a lack of evidence of financial support, the conclusion of the Judge on whether there is family life was an entirely reasonable one that was open to her on the evidence.
27. I am not persuaded that in conducting her assessment of whether family life exists, the Judge did not factor in her findings about the appellant living at the family home when she was in Nepal or that she did not appropriately assess what weight to attach to this matter.
28. The appellant has failed to establish that the decision of the Judge involved the making of an error of law. The decision of the First-tier Tribunal shall stand.
Notice of Decision

The appeal is dismissed.

Sarah Grey

Judge of the Upper Tribunal
Immigration and Asylum Chamber

7 April 2025