Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2025-000620

First-tier Tribunal No: HU/60310/2024
LH/06835/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:

On 19th of June 2025

Before

UPPER TRIBUNAL JUDGE LOUGHRAN
DEPUTY UPPER TRIBUNAL JUDGE SMEATON

Between

VALLIYAMMAI YOGARAJA
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMNT
Respondent

Representation:
For the Appellant: Ms A Seehra (counsel, instructed on a public access basis)
For the Respondent: Mr M Parvar (senior presenting officer)

Heard at Field House on 12 June 2025

DECISION AND REASONS

1. The appellant is a citizen of Sri Lanka born on 12 June 1946. She appeals, with the permission of the First-tier Tribunal (‘FTT’) (Judge Clarke) against the decision of the FTT (Judge S. J. Clarke) dated 2 December 2024, dismissing her human rights appeal.

Background

2. The appellant is from Akkaraipattu, a town in eastern Sri Lanka.

3. On 8 June 2024, the appellant made an application for entry clearance as the adult dependent relative of a British citizen, her son (Mr Kantharuban Yogaraja) (referred to hereafter as ‘the sponsor’). Mr Yogaraja arrived in the UK in 2010 and claimed asylum. He was granted leave to remain as a spouse in 2012 and naturalised as a British citizen in 2020.

4. In her application, the Appellant maintained that she had been living alone in Sri Lanka since February 2024, having returned there after living in a refugee camp in India between 1990 and 2024. She said that she suffers from restricted movement, joint pain, and heart and kidney issues and that she was reliant on carers in Sri Lanka paid for by the sponsor.

5. The application was refused on 12 August 2024. The respondent accepts that the appellant and the sponsor are related as claimed but does not accept that:

(1) the appellant, as a result of age, illness or disability, requires long-term personal care to perform everyday tasks;
(2) the care the sponsor requires is not available or there is no person in Sri Lanka who can reasonably provide that care, or it is not affordable;
(3) there would be adequate maintenance for the appellant without further recourse to public funds;
(4) there are exceptional circumstances which would render refusal a breach of article 8 ECHR because it would result in unjustifiably harsh consequence for the appellant or another family member.

The appeal to the FTT

6. The appellant appealed to the FTT. Her appeal was heard by FTT Judge S. J Clarke (‘the Judge’) sitting at Taylor House IAC on 21 November 2024. The sponsor gave evidence on her behalf. She was not legally represented. The issues for the FTT, identified in the respondent’s review, were:

(1) has the appellant demonstrated that she meets the eligibility dependency requirements of paragraphs ADR-5.1-5.2?
(2) has the appellant demonstrated that she meets the eligibility financial requirements of paragraphs ADR 6.1-6.5?
(3) would refusal be a breach of article 8 ECHR?

7. The Judge did not accept that family life exists between the appellant and the sponsor and therefore found that 8 ECHR was not engaged. She rejected the medical evidence as self-serving and did not accept either that the appellant requires long-term personal care to perform everyday tasks or that such care is not available or unaffordable in Sri Lanka.

The appeal to the Upper Tribunal (‘the UT’)

8. The appellant appealed on three grounds. Permission was granted by the FTT (Judge Clarke) on all grounds.

9. The matter was listed for hearing before this Tribunal panel on 12 June 2025. We were provided with a bundle of documents comprising 683 pages and a separate copy of the grounds of appeal.

10. Shortly before the hearing, the appellant filed three additional documents:

(1) a copy of the FTT’s directions dated 11 October 2024;
(2) a short statement from the sponsor and his wife confirming, in the absence of a record of proceedings, their account of what took place at the FTT hearing, as set out in the grounds of appeal; and
(3) recent medical evidence relating to the sponsor.

11. Mr Parvar did not object to the first two documents being admitted as evidence. They are plainly relevant to the grounds of appeal and their inclusion even at this late stage does not prejudice the respondent in any way. We agreed to admit them. Mr Parvar did object to the last document being admitted. He queried the relevance of it to the issues before us. We agreed and declined to admit it.

12. We heard submissions from both representatives. We do not propose to rehearse the submissions here, but will consider what was said during our analysis of the grounds of appeal.

13. At the end of the hearing, we indicated that our decision would be reserved.

14. We have reminded ourselves of the authorities which set out the distinction between errors of fact and errors of law and which emphasise the importance of an appellate tribunal exercising judicial restraint when reviewing findings of fact reached by first instance judges (as summarised by Lewison LJ in Volpi & Anor v Volpi [2022] EWCA Civ 464). In reaching our conclusions, we acknowledge that the UT should be slow to infer that a relevant point has not been taken into account simply because it is not expressly mentioned by the judge below (applying MA (Somalia) v SSHD [2010] UKSC 49 and Volpi & Anor v Volpi [2022] EWCA Civ 464) and should not too readily assume that the FTT misdirected itself just because not every step in its reasoning is fully set out (R (on the application of JR (Jamaica)) v SSHD [2014] EWCA Civ 477).

Discussion

Ground one – family life

15. Ms Seehra argued that the Judge erred in concluding that family life did not exist between the appellant and the sponsor such that article 8 ECHR was not engaged by:

(i) making material errors of fact about the historic financial support provided by the sponsor;
(ii) failing to take into account material evidence before the FTT concerning the appellant’s financial circumstances in Sri Lanka; and
(iii) conducting the proceedings in a procedurally unfair manner, wrongly excluding material evidence about financial remittances that was available at the hearing.

16. We accept that the Judge made an error of fact concerning the historical financial support provided by the sponsor. The Judge erroneously considered the appellant’s evidence to be that financial support from the sponsor and his wife in the UK only started in 2016. In fact, it was the appellant’s case that the sponsor had been providing her with financial support since 2011, shortly after his marriage to his wife. That is a much longer period of financial support, which is relevant to the question of whether the support is real, committed and effective (the test identified in Kugathas v SSHD [2003] EWCA Civ 31, [2003] I.N.L.R. 170 and referred to by the Judge).

17. We accept that the Judge failed to take into account material evidence concerning the appellant’s financial circumstances in Sri Lanka. In the application form, the appellant made clear that the house she was living in was owned by her nephew, that her care is paid for by the sponsor and that the sponsor looks after her financially. In the appendix to the application form, the appellant reiterated that the sponsor supports her financially and that she does not have any income or savings of her own. No reference was made to this by the Judge. That failure is material given that the Judge found that there was no evidence about the financial situation of the appellant and that that was significant, concluding that ‘context is all’.

18. We also accept that the Judge acted in a procedurally unfair manner by excluding evidence of financial remittances from the sponsor’s wife during the period the appellant was living in India. Although the appellant was directed to serve evidence in support of her appeal in advance of the hearing, and although sanctions in the event of non-compliance can include the exclusion of evidence, such exclusion must be ‘just’ (Maleci (non-admission of late evidence) [2024] UKUT 00028 (IAC)). What is ‘just’ will depend on the particular circumstances of the case. There was no engagement by the Judge here with the principles laid down in that case. The Judge did not consider the seriousness or significance of the failure to provide the evidence earlier, the reason why the evidence was not provided earlier, the relevance of the documents or the relative prejudice to each party of excluding it. We note that the Judge appeared willing to consider the case taking the appellant’s case at its highest, accepting that remittances had been made as claimed (albeit that, as set out above, the Judge was mistaken in identifying the starting date for such remittances). However, we consider that the combined with the other errors of fact identified above it demonstrates that the Judge did not have an accurate understanding of the financial situation of the appellant.

19. Taken together, the errors identified are material, undermining the conclusion that the appellant has not shown real, effective or committed support by the sponsor. The conclusion that article 8 ECHR is not engaged cannot stand.

20. The appeal on ground one succeeds.

Ground two – long-term personal care

21. Ms Seehra argued that the Judge erred in concluding that the appellant did not require long-term personal care by:

(a) conducting the proceedings in a procedurally unfair manner by relying on the absence of historical medical evidence when the appellant had been directed by the FTT to file and serve current medical evidence only; and
(b) misdirecting herself in law and/or failing to give adequate reasons on a material issue and/or failing to have regard to material evidence in rejecting the medical evidence as self-serving.

22. On 11 October 2024, the appellant was directed to provide medical evidence showing her current medical condition and needs. She provided medical evidence from 2024 with her application. In dismissing the appeal, the Judge referred to a ‘complete gap in evidence about the medical health of the appellant’ noting in particular that there was no medical evidence from India (prior to the date of application). We accept that it was procedurally unfair for the Judge to rely on this absence of historic medical evidence in circumstances in which the appellant, acting as a litigant in person, had been directed to provide evidence of her current medical condition and needs only.

23. Of more significance for this appeal, however, is the Judge’s finding that less weight can be placed on the medical evidence presented by the appellant after the application and for the purpose of the appeal because it is ‘self-serving’. This is precisely the evidence the appellant was directed to provide and the evidence the FTT required to understand the appellant’s care needs. We have had regard to the discussion of the term ‘self-serving’ in R (on the application of SS) v Secretary of State for the Home Department ("self-serving" statements) [2017] UKUT 00164 (IAC). The expression is a protean one which tells us little or nothing. What is needed is a reason, however brief, for that designation. The fact that medical evidence has been produced, in compliance with a direction, for the purposes of an appeal to demonstrate the current care needs of an appellant in an adult dependent relative case does not, by itself, render the evidence self-serving.

24. By placing less weight on the medical evidence because it was self-serving, the Judge misdirected herself in law and failed to give adequate reasons for not placing weight on the medical evidence provided. The result was that the Judge failed to take into account material evidence which included evidence from a doctor who had treated the appellant for kidney-related issues, a doctor treating her for osteo-arthritis and lower back pain, a care home where the appellant had stayed for one week and the appellant’s current carer. That medical evidence was key in assessing whether the appellant requires long-term personal care to perform everyday tasks. The failure to take that evidence into account is compounded by the Judge’s failure to make findings on the evidence given by the appellant herself and by the sponsor as to her care needs.

25. Although we acknowledge, as submitted by Mr Parvar, that it was not incumbent on the Judge to address every piece of evidence relied upon by the appellant, the failure to engage in any meaningful way with the evidence on this key issue, and instead to dismiss the evidence on the sole basis that it is self-serving, amounts to a material error of law.

26. The conclusion that the appellant does not meet the test to show that she requires long-term personal care to perform everyday tasks cannot stand.

27. The appeal on ground two succeeds.

Ground three – availability of care

28. Ms Seehra argued that the Judge erred in concluding that the appellant was unable to receive the required level of care in Sri Lanka care by:

(a) making a material mistake of fact about the number of carers the appellant has;
(b) making a material mistake of fact about the availability of a support network;
(c) misdirecting herself in law and/or failing to give adequate reasons on a material issue and/or failing to have regard to material evidence in rejecting the evidence from the care home as self-serving;
(d) failing to have regard to material evidence concerning the availability of care homes in Sri Lanka; and
(e) making a material misdirection of law in respect of the correct test to be applied when considering the reasonableness of the care available.

29. We do not accept that the Judge made a material mistake of fact concerning the number of carers the appellant has. Although the Judge did refer to four carers it is not clear from the decision that she understood the appellant to have four carers at any one time (as opposed to one after another). In any event, the judge did not appear to place any reliance on the fact of there being four carers, as opposed to one.

30. We accept that the Judge made a mistake of fact concerning the availability of a support network in Sri Lanka. The Judge found that, in addition to the nephew who owns the appellant’s home and lives relatively nearby, there are ‘other nephews and nieces the appellant has’ who could be called upon to assist. It is unclear what evidence the Judge relied upon in reaching this decision. The appellant’s case was that she had one nephew. By itself, this error may not be material but is relevant when considering the reliability of the decision on this issue overall.

31. We accept that the Judge materially erred in her approach to the letter from the care home. As with the other medical evidence, the Judge rejected that letter, and what it said about the availability of care for the appellant, on the basis that it is self-serving. For the same reasons as set out above under ground two, that was a material misdirection in law. The result of that misdirection is that the Judge has not taken into account material evidence from the care home and/or has failed to give adequate reasons for rejecting that evidence. The Judge suggested that the appellant had not given herself enough time to properly settle in to the care home before leaving it, but the evidence from the care home itself is that it was not equipped to provide the level of one-on-one care that the appellant seemed to require, leading to it discharging her. The Judge ought to have taken that evidence into account and given adequate reasons for either accepting or rejecting it. That was not done.

32. Although we do not find a separate, material error of law in this respect, we note the absence in the decision of any reference to the approach in in R (on the application of) Britcits v SSHD [2017] EWCA Civ 368, [2017] 1 W.L.R. 334. The Judge was required to consider the reasonableness of the care available both from the perspective of the provider and the appellant. The letter from the care home arguably suggests that they did not feel that it was reasonable to provide the appellant with the care she required. This issue ought to have been addressed.

33. Those failures are compounded by the failure to taken into account the country background evidence which the appellant relied on in support of her submission that there is a lack of appropriate, quality care from private elder care services available in Sri Lanka. No reference is made to that evidence in the decision.

34. The conclusion that the appellant does not meet the test to show that the care she requires is not available in Sri Lanka, or cannot be afforded, cannot stand.

35. The appeal on ground three succeeds.

Disposal

36. 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) we agree with Ms Seehra that, in light of the extensive errors in this appeal, the matter ought to be remitted to the FTT to be considered de novo. Mr Parvar’s position on this was neutral. We are satisfied that no findings of fact can be preserved.

Notice of Decision

37. The decision of the FTT (Judge S. J. Clarke) dated 2 December 2024 contained material errors of law. The decision is set aside and remitted to the FTT to be reconsidered to be heard by a different judge with no findings of fact preserved

J. SMEATON

Deputy Judge of the Upper Tribunal
Immigration and Asylum Chamber

16 June 2025