Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2025-000446

First-tier Tribunal No: HU/62099/2023
LH/07635/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:

On 27th of June 2025

Before

UPPER TRIBUNAL JUDGE KAMARA
DEPUTY UPPER TRIBUNAL MERRIGAN

Between

KISHAN LIMBU
(NO ANONYMITY ORDER MADE)
Appellant
and

THE ENTRY CLEARANCE OFFICER, SHEFFIELD
Respondent

Representation:
For the Appellant: Mr R. Sharma, Counsel
For the Respondent: Ms Nwachukwu, Senior Home Office Presenting Officer

Heard at Field House on 1 April 2025

DECISION AND REASONS
Introduction
1. The appellant is a citizen of Nepal. He appeals in time with permission against the decision (“the decision”) of First Tier Tribunal Judge Row (“the judge”), promulgated on 3 December 2024.
2. The appellant was born on 3 February 1980. On 31 July 2023 he applied for leave to enter the UK as the adult dependent child of his mother and as the adult child of a former Gurkha soldier, now deceased. His application was refused on 12 September 2023 on the basis that he did not meet the requirements for leave to enter as the child of a former soldier; nor was it accepted he was dependent on his mother. The appellant accepted the former reason for refusal; but appealed the latter on the basis that he should succeed outside of the Immigration Rules under Article 8 of the ECHR, relying on his dependency. Following the negative Respondent’s Review dated 13 November 2024, the matter proceeded to an oral hearing before the judge.
Background
3. Apart from a period between 2011 and 2014, when the appellant worked in Malaysia, he has always resided in Nepal. He married a Nepalese citizen in 2008; and they divorced in 2023. Apparently, they lived together for most of the marriage.
4. The appellant’s sponsor (“the sponsor”) is his mother. She was granted settlement in the UK in 2018; and three of the appellant’s younger (adult) siblings joined her in a year later. The appellant relies on money transfers made from the sponsor to the appellant, evidenced before the judge, to support his contention that he is financially dependent upon the sponsor. The appellant’s statement dated 2 June 2024 says the following at paragraph 19 and 20.
“My mother has returned to Nepal three times since being in the UK. During her return to Nepal in 2022, we were informed that the old bank where the widow pension was being deposited, had been acquired by another bank. My mother and I attended the bank together in the hopes that she would continue to allow me to have the authority of the withdrawal. Unfortunately, we were told that this cannot continue because my mother was unable to sign. She reassured me that she would send me money from the UK.
My sister Pabitra and Krishna Kumari’s marriages ended, and they returned to the family home to live with me. My mother has been supporting all of us financially. Most times the money is sent in my name but sometimes in their names too. We all share the money equally. My mother sends us money almost every month. Sometimes when the amount is more, she sends it in longer intervals. I would not be able to survive without her support. I have continued to live in the family home. I would not be able to afford rent to live elsewhere.”
5. In considering whether Article 8 is engaged, the judge made a number of findings.
a. “There is evidence of money transfers…Counsel confirmed [th]at the earliest appeared to be dated 9 May 2023, some three months before the application was made.” [21]
b. “There is evidence of communication [between the appellant and the sponsor].” [23]
c. “The fact that the sponsor came to the United Kingdom in 2018 and left the appellant in Nepal is not relevant. A family life could still exist between them.” [27]
d. “The money transfers might be evidence of dependency.” [29]
6. The judge went on to reflect at [30] that “it would be expected that family members would keep in touch with their parents. It does not mean that there is a family life between adults.” The focus in submissions today is however the finding at [31] that “There is no reason why a 44-year-old man who has worked abroad in the past, worked in Nepal, and is capable of doing so now should be financially dependent on anyone let alone a parent whom he supported for many years”.
Grounds of appeal
7. The appellant was granted permission to appeal by First-tier Judge Mulready on 29 January 2025. Judge Mulready summarised the four grounds relied upon in the grounds of appeal dated 24 December 2024 as follows.
“The judge accepted there were payments from the sponsor to the appellant. For Article 8 to be engaged there is need only be support between them which is real, or effective, or committed. It is not clear from the decision why, or whether, the judge found the provision of money from the sponsor to the appellant to not constitute any of these three kinds of support.”
Hearing and submissions
8. We have before us a bundle containing all the documents relied upon by the parties.
9. In oral argument, Mr Sharma relied upon the grounds of appeal. His starting point is that the test for whether Article 8 is engaged or whether there is a relationship of real, committed or effective support: Rai v ECO, New Delhi EWCA Civ 320. The judge refers himself to Rai at [13]. Mr Sharma argues however that the judge has misapplied that test. He relies upon AG (Eritrea v SSHD [2007] EWCA Civ 801 for the proposition that the judge applied too high a threshold for the engagement of Article 8. We note that at paragraph 28 of AG, Lord Sedley writes:
“It follows, in our judgment, that while an interference with private or family life must be real if it is to engage art 8(1), the threshold of engagement (the “minimum level”) is not a specially high one”
10. Closely linked to this argument is Mr Sharma’s submission that the judge’s explanation of the guidance in Rai at [14] demonstrates that he has erroneously elevated the legal test. The judge states:
“There is no presumption of family life. It is a matter to be established by the appellant with evidence. Whether there is a family life depends on the facts of each case. A family life is not established between an adult child and his surviving parent unless something more exists than normal emotional ties. Dependency requires support, real, committed, or effective. It is the irreducible minimum of what family life implies.”
11. There is no difficulty with the first three sentences. The error, Mr Sharma, submits, arises from the judge’s treatment of the word ‘normal’. Paragraph 17 of Rai in turn summarises Arden LJ’s guidance given in Kugathas v SSHD [2003] EWCA Civ 31:
“She [Arden LJ] acknowledged (at paragraph 25) that “there is no presumption of family life”. Thus “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. She added that “[such] ties might exist if the appellant were dependent on his family or vice versa”.”
12. Mr Sharma’s point is that dependency, if found, in of itself creates a situation of ‘more than normal’ emotional ties. The test as set out by the judge in [14] of the decision implies that dependency should further be examined to see if it is sufficient to create more than normal emotional ties.
13. Mr Sharma continues that the judge should have found that Article 8 was engaged. Whether or not the appellant had supported the sponsor in the past is not relevant: the question is whether at the time of his application in July 2023 he was – and remains – financially dependent on the sponsor. The judge found at [29] that the money transfers ‘might’ be evidence of dependency. The judge therefore needed to explain why the money transfers were not evidence of dependency. There are two possible explanations given in the decision:
“Parents might wish to give gifts of money to their children. It is what parents do. It may have been transferred to assist other family members. It may have been transferred to give the impression of dependency. The timing of the money transfers might bear that impression.” [29]
“There is no reason why a 44-year-old man who has worked abroad in the past, worked in Nepal, and is capable of doing so now should be financially dependent on anyone let alone a parent whom he supported for years.” [31]
14. Neither reason, says Mr Sharma, is sufficient. [31] misses the fundamental point that the payments have been made, as found by the judge. As such, it merely raises an irrelevant issue. As to [29], parents do give gifts to children, but that does not mean that the money transfers here were made by way of support. And as to whether the money transfers were made to create a false impression of dependency, there are insufficient reasons given as to why that might be the case.
15. Finally, Mr Sharma seeks to clarify a matter raised by the judge:
“At the time the sponsor came to the United Kingdom the appellant appears to have been living separately with his wife. That was where his family life lay. The decision to divorce is a recent occurrence. If a family life did not exist between the appellant and the sponsor before the divorce it is difficult to see how it has been acquired since.” [28]
16. This, Mr Sharma says, is based on a confusion in the sponsor’s oral evidence at [18], which she immediately corrected at [19]:
“She [the sponsor] was asked where the appellant had lived before he was divorced. She said he lived in the maternal home. His wife lived with him. They were living in a hut. The appellant and his wife lived there alone.” [18]
“She then said that whilst she was living in Nepal all the family lived together in the same hut.” [19]
17. Mr Sharma concludes that the judge misdirected himself, leading to a material error in law. The appellant was at the relevant time and remains to be financially dependent on the sponsor, thereby engaging Article 8.
18. In response, Ms Nwachukwu relies on the Respondent’s Review dated 13 November 2024.
19. She says that we should not read any error into [14] of the decision: the judge has correctly referred himself to the test set out in Rai and there is nothing in [14] that discloses an elevation of what constitutes ‘normal emotional ties’.
20. Ms Nwachukwu instead refers us to [17], where the judge states that “The sponsor gave different accounts of where she lived.” Ms Nwachukwu says that the discrepancy between [18] and [19] we have already referred to above cannot be dismissed so lightly and is part of a wider lack of clarity in the sponsor’s evidence that the judge sets out at [17] to [20]. This lack of clarity entitles the judge to be cautious in taking the evidence before him at face value, especially as regards the money transfers. While the judge found that money had indeed been transferred, he was entitled to find at [29] that the transfers were designed to create a false impression of dependency, especially as the earliest only pre-dated the appellant’s application by three months. As the judge rightly said at [32], it for the appellant to prove family life.
Decision
21. We repeat the observation made by First-tier Judge Mulready that for Article 8 to be engaged, there only needs to be support which is real, effective or committed.
22. We note that, per the summary in Rai at paragraph 17, dependency is specifically given by Arden LJ as a reason why family life may be established for the purpose of Article 8.
23. The judge found evidence establishing money transfers from the sponsor to the appellant at [21]; and further stated at [29] that the money transfers might be evidence of dependency”. We therefore look to the rest of [29] to consider the judge’s reasoning as to why the money transfers did not create a dependency.
24. We have already reproduced this part of the decision above. As Mr Sharma submits, the judge at [29] reasons that the money transfers might be gifts, or designed to create an impression of dependency. Save for some reference to banking at [22], which we consider below, and the assertion at [31] that there was no reason that the appellant should be dependant, there is nothing elsewhere in the decision that expands upon these alternatives.
25. The appellant has written in his statement at paragraph 20 that “I would not be able to survive without her support”. This addresses the first alternative. The judge has not explained at [29] or otherwise why he was not satisfied that the appellant needed the money in the face of the appellant’s assertion that he does.
26. The second alternative requires closer scrutiny of [22], which we produce in full:
“The appellant says that before that [9 May 2023] he took money out of a bank account. There is a bank statement page 172 and following. The dates it covers are unclear. The dating system in Nepal is different. The sponsor was unable to explain it.”
27. The oral evidence of both supports their written evidence at paragraph 19 (for the appellant) and paragraph 18 (for the sponsor). The appellant has advanced a case that he was being supported by the sponsor for a longer period than just the period of May 2023 to the date of the hearing before the judge. The judge has not explained why he either disbelieves the appellant – and the sponsor – as to when payments started; nor, if he did believe them, at what earlier date he found the payments had commenced, and why that longer period still did not satisfy him that the payments were made by the sponsor to address the appellant’s genuine financial need. It follows that the judge has not adequately explained his observation at [29] that “the timing of the money transfers might bear that [concocted] interpretation”.
28. In conclusion, we find that the judge did not provide adequate reasons as to why the money transfers did not create and evidence a dependency such that Article 8 ECHR was engaged. We therefore find an error of law in the decision.
29. We canvassed the views of the parties as to the venue of any remaking should the panel detect a material error of law and have taken them into account. Applying AEB [2022] EWCA Civ 1512 and Begum (Remaking or remittal) Bangladesh [2023] UKUT 00046 (IAC), the panel carefully considered whether to retain the matter for remaking in the Upper Tribunal, in line with the general principle set out in statement 7 of the Senior President’s Practice Statements. We took into consideration the history of this case and the nature and extent of the findings to be made. We consider that it would be unfair for either party to be unable to avail themselves of the two-tier decision-making process and we therefore remit the appeal to the First-tier Tribunal.
Notice of Decision
1. The judge’s decision involved the making of an error of law.
2. Specifically, we set aside [28] to [32] of the decision and the refusal of the appeal on Article 8 ECHR grounds.
3. We do not preserve any findings of the decision.
4. We remit the matter to the First-tier Tribunal to be heard by a different judge to decide the sole issue of whether the appellant should succeed outside of the Immigration Rules under Article 8 ECHR on the basis of his family life with the sponsor.

D. Merrigan

Deputy Judge of the Upper Tribunal
Immigration and Asylum Chamber

23 June 2025