Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No.: UI-2025-000867

First-tier Tribunal Nos: HU/62933/2023
LH/00619/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:

7th May 2025

Before

DEPUTY UPPER TRIBUNAL JUDGE MONSON

Between

AMAN JUNG SHAHI
(ANONYMITY DIRECTION NOT MADE)
Appellant
and

ENTRY CLEARANCE OFFICER
Respondent

Representation:
For the Appellant: Mr Matthew Moriarty, Counsel instructed by Everest Law Solicitors
For the Respondent: Mr J Thompson, Senior Home Office Presenting Officer

Heard at Field House on 17 April 2025

DECISION AND REASONS

1. The appellant appeals against the decision of First-tier Tribunal Judge Beg promulgated on 25 November 2024 (“the Decision”). By the Decision, Judge Beg dismissed the appellant’s appeal against the decision of an Entry Clearance Officer to refuse to grant him entry clearance for the purposes of settlement in the capacity of a dependent adult child of a former member of the Brigade of Gurkhas.

Relevant Background

2. The appellant is a citizen of Nepal, whose date of birth is 23 June 1980. On 17 April 2023 the appellant applied for entry clearance to join his father, a former soldier who had served in the Brigade of Gurkhas and who had settled in the UK in 2009.

3. In the refusal decision dated 2 June 2023, the respondent accepted that his father was a Gurkha discharged prior to 1 July 1997, and that his father had thereby been granted a settlement visa on 11 August 2009.

4. To qualify for settlement as an adult dependent child, the applicant must not have been living apart from the former Gurkha for more than 2 years on the date of application, and must never have lived apart from the sponsor for more than 2 years at a time, unless this was by reason of education or something similar. His sponsor had been resident in the UK since 2009, and so he had lived apart from the sponsor for more than 2 years, other than by reason of education or something similar.

5. Furthermore, the evidence provided in his application led to the conclusion that he had established his own independent family unit away from his sponsor. An applicant must not have formed an independent family unit. He stated in his visa application form that he was married, and he had provided details of his three children on his visa application form as well as their birth certificates. As he had been able to establish an independent family unit away from his parents, the application was refused on the additional basis that he must not have formed an independent family unit.

6. While it was acknowledged that he might receive some financial support from his father and that he had remained in contact with him, he had not demonstrated that he was financially and emotionally dependent upon his father beyond that normally expected between a parent and adult child.

7. The appellant’s case on appeal was set out in an appeal skeleton argument (ASA) settled by Ms Revill of Counsel. She submitted that the appellant had always lived in the family home belonging to the sponsor. He had married Bhagwati Shahi in 1994. She moved into the family home and they had raised their 3 children there with help from the appellant’s parents. The appellant’s wife had sadly died of cancer on 15 January 2024. The appellant’s children were now adults. Two had moved away, and the one remaining at home planned to do so in the near future. The appellant was not formally employed, but he did ad hoc seasonal labour work. He survived through money sent by the sponsor, and food grown on the sponsor’s land in Nepal. The appellant maintained regular contact with the sponsor and there was a real, effective and committed support between them.

8. The birth certificates for the appellant’s three children that were included in the appeal bundle showed that they had been born on 15 October 1998. 20 May 2021 and 11 June 2003 respectively in Ward No.3, Rupa Rural Municipality, Kaski District.

9. In his appeal statement dated 29 May 2024, the sponsor said that he and his wife had had 6 children. Chuman, the eldest, was born on 28 June 1975. Nayan was born on 7 July 1979 and now lived in the UK. The appellant was their 3rd child, and lived in the family home. Sharjila was born on 6 October 1984 and lived with her husband in Limbini. Suman was born on 1 July 1987 and lived in the UK. Kranti was born on 3 July 1990 and lived in the UK.

10. Following his discharge from the army, he did not receive any pension, leaving them solely reliant on the produce from the farming activities conducted on land owned by his father. After a decade of residing in the ancestral house, his father purchased a plot of land further down the hillside in Takanja, Rupa 3, where they built a new house. The land plot associated with the house in Takanja was smaller compared to the one at the ancestral house, resulting in limited agricultural production insufficient to sustain the family’s needs.

11. He and his wife made the decision to relocate to the UK in 2009. Their children remained in the family home, apart from Chuman who ventured to Kathmandu in pursuit of employment opportunities. After a couple of years, he decided to apply for his children to join him in the UK. But he came to the realisation that he could only afford to make applications for three of them. The appellant, who also relied upon his financial support, was already married. As he was earning money in Kathmandu, Chuman suggested that it would be better to prioritise the applications of the other siblings. His daughter, Sharjila, was also by this time married and living with her husband in Limbini.

12. Later, he observed another married Gurkha adult dependent child settling in the UK, which prompted him to consider making an application for the appellant. However, his wife was diagnosed with cancer at this point. All the money he had been sending to the appellant was used for his wife’s treatment. Unfortunately, his wife eventually succumbed to her illness.

13. Between those years, he did not keep receipts for the money transfers. They held on to the hope that his wife would eventually recover from cancer, allowing them to resume a normal life together. Consequently, he did not see the need to keep records of these transactions. Moreover, his wife suffered from episodes of psychosis, during which she often destroyed documents, including any receipts that he might have had in his possession. As a result, he had only a minimal amount of money transfer receipts.

14. In his appeal statement, the appellant indicated that Chuman and Sharjila had long since moved out of the family home before his parents moved to the UK in 2009. He said that his father, along with his other siblings, collectively raised his three children and meanwhile he and his brother Nayan worked as labourers to provide for the family’s needs.

15. In a Review dated 23 August 2024, the Pre-Appeal Review Unit (PARU) stated that the evidence provided by the appellant showed that the appellant had his own adult children in Nepal, which further showed that he had established an independent family life of his own beyond the relationships he shared with his parents. The appellant had long since established his own family unit with his children when the sponsor left Nepal.

16. The appellant had provided chat logs dated from 2021 onwards. The respondent would expect to see earlier evidence of communication prior to 2021. The lack of evidence of prior to 2021 cast doubt on the veracity of the claimed emotional dependency.

17. The evidence of financial support was dated 2022 onwards. If the appellant had remained financially dependent upon the sponsor since his relocation to the UK in 2009, then evidence of this would be available. The sponsor stated that previous money transfer receipts were not retained as they had been destroyed by Mrs Shahi who suffered from dementia and experienced psychotic episodes. The appellant had provided a medical letter as evidence of Mrs Shahi’s diagnosis. The respondent would expect the appellant to be able to provide alternative evidence such as bank statements showing debits. It was noted that there were no bank statements from the appellant or the sponsor. The lack of evidence prior to 2022 cast doubt on the veracity of the claimed financial dependency.

The Hearing Before, and the Decision of, the First-Tier Tribunal

18. The appellant’s appeal came before First-tier Tribunal Judge Beg for a remote hearing at Manchester on 25 November 2024. Both parties were legally represented, with Ms Revill of Counsel appearing on behalf of the appellant.

19. In the Decision at para [15], the Judge said that the sponsor had given evidence, and that his evidence was recorded in full in the record of proceedings which, “I do not rehearse here.”

20. The Judge’s discussion and findings began at para [16]. At para [25] the Judge said that it was common ground that the sponsor had 4 sons and 2 daughters. In evidence, the sponsor initially stated that he only had 4 children - then he said that he had 5 children - and he eventually accepted that he had 6 children.

21. At para [30] the Judge said that in evidence the sponsor said that he and his wife lived with the appellant, the appellant’s wife and their 3 children in the family home in Nepal, before he (the sponsor) settled in the UK: “I find however that there is no credible documentary evidence that all the family members lived together in the house which the sponsor described as having three rooms on the ground floor and two rooms on the upper floor. Moreover, the sponsor gave evidence that before his children married, all six of them were living in the same property. It is unclear when some of his children, other than the appellant, married and moved out.”

22. At para [31] the Judge said that the sponsor also gave evidence that the appellant did some seasonal work, but it was not enough to support himself all the time. Therefore, for some of the time when he was not working, he sent money to support his son. The Judge continued: “I find that whilst there is some documentary evidence of funds sent to the appellant by the sponsor, there is no credible documentary evidence that funds have been sent every month since the sponsor settled in the United Kingdom. I do not find it credible that the sponsor’s wife, who suffers from dementia, disposed of some of the money transfer receipts. There is no credible explanation as to how she did this, or where [the] money transfer receipts were kept.”

23. At para [32] the Judge held that Ms Revill had rightly submitted that financial dependency was not the sole issue in assessing whether there was family life between an adult child and a parent.

24. At para [33] the Judge said that she did not find it credible that the only work the appellant did was seasonal. He had provided no documentary evidence that he was only able to work for 4-6 months a year as a labourer. In her submissions, Ms Revill had referred to agricultural work, but in his own statement the appellant referred to working as a labourer on construction projects.

25. At para [34] the Judge found that even if the appellant had low-paid employment, it was more than seasonal work. The sponsor said that all 3 of the appellant’s children were adults and were working and were providing financial assistance to the appellant. Additionally, the appellant’s siblings in the UK periodically sent money to him. She accepted that the appellant presently lived rent-free in the family property. However, in return, he maintained the property.

26. At para [37] the Judge took into account that the call logs demonstrated that there was some telephone contact between the appellant and his father. But while there was frequent contact, it was not daily contact. The sponsor gave evidence that he had similar contact - usually every 2-3 days - with his eldest son Chuman. The sponsor did not mention in his oral evidence the emotional support that his sons in Nepal provided him. There was no credible detailed evidence as to what they talked about in their conversations.

27. At para [39] the Judge found that the appellant had established an independent family unit when he married Bhagwati Shahi in 1994. She did not find it credible that, after he and his wife had had 3 children, they only ever lived in the family home. The appellant had worked to provide for his family; and he continued to work. His income was supplemented by his children and other family members living in the UK.

28. At para [40] the Judge found that, from the time the sponsor settled in the UK, the appellant did not cease to have an independent life.

29. At para [41] the Judge said that, taking the evidence as a whole, the appellant and the sponsor did not have family life within the meaning and purpose of Article 8. Their relationship did not go beyond normal emotional ties to a relationship of real, committed and effective support: “I find that the sponsor has emotional support from his children in the United Kingdom, including his son, with whom he lives. I accept that he maintains regular contact with his two sons in Nepal, and less frequent contact with his daughter Sharjila.”

The Grounds of Appeal to the Upper Tribunal

30. Ms Revill of Counsel settled the grounds of appeal. Ground 1 was that the Judge had materially erred in rejecting the appellant’s claim to have lived with the sponsor until the latter moved to the UK, despite this not having been disputed by the respondent in the Review, in cross-examination or in oral submissions. Ground 2 was that the Judge had materially erred in rejecting the sponsor’s evidence that money transfer receipts had been destroyed by his wife, despite this not having been disputed by the respondent in the Review, in cross-examination or in oral submissions. Ground 3 was that the Judge materially erred in placing weight on irrelevant matters - namely the fact that the sponsor had emotional support from and contact with other family members - when finding that the appellant had not shown family life with the sponsor.

31. As to Grounds 1 and 2, Ms Revill submitted that fairness generally required that if the evidence of the witness was to be rejected, it should be challenged at the hearing so as to give them an opportunity to address the challenge: Abdi & Others -v- ECO [2023] EWCA Civ 1455 at [33], summarising TUI UK Ltd -v- Griffiths [2023] UKSC 48. Similarly, it was fairer for a Judge to ask questions about matters going to “the central factual issue” than to leave her concern unaddressed without giving witnesses an opportunity to deal with them: Hussain -v- SSHD [2024] EWCA Civ 608 at [77]. The Judge failed to follow this approach. The appellant could not reasonably have produced documentary evidence regarding matters that he was not told were in dispute. Nor were his witness and representative put on notice that the evidence might be disbelieved. By disbelieving the appellant and the sponsor on matters that were never disputed, the Judge had adopted an unfair procedure.

The Reasons for the Grant of Permission to Appeal

32. On 21 February 2025, First-tier Tribunal Judge Sills granted permission to appeal as it was arguable that, for the reasons set out in Grounds 1 and 2, the decision was procedurally unfair.

33. Judge Sills considered that Ground 3 had less merit, as the sponsor’s relationship with his other children was a relevant, although not a determinative. factor.

The Hearing in the Upper Tribunal

34. At the hearing before me to determine whether an error of law was made out, Mr Moriarty developed the case put forward in the grounds of appeal. On behalf of the respondent, Mr Thompson submitted that Grounds 1 and 2 were in essence an expression of disagreement with findings of fact that were reasonably open to the Judge on the evidence. In addition, there was no record of proceedings showing that the matters in question were not raised at the hearing.

35. In reply, Mr Moriarty submitted that the respondent had not, by way of response to the grant of permission to appeal, taken issue with the factual premise which underlay Grounds 1 and 2. He submitted that an error of law was made out, as the Judge had made adverse credibility findings without giving the sponsor the opportunity to respond to them. Although the findings went to “narrow issues” they were nonetheless important.

Discussion and Conclusions

36. The facts of Abdi were that the appellants were applying for EEA family permits as the extended family members of the sponsor, who was a national of the Netherlands, having been granted asylum there, and who had subsequently been living at all material times in England.

37. The applications were refused on the ground that the money transfer receipts were dated sporadically from 2019 to 2020. This limited amount of evidence in isolation did not prove that they were financially dependent upon the sponsor, as the respondent would expect to see substantial evidence of financial dependency over a prolonged period.

38. The appeal came before Judge Barlett in the First-tier Tribunal. The respondent was not represented at the appeal. The Judge received oral evidence from the sponsor, and she asked him some questions. The Judge went on to dismiss the appeal, as she was not satisfied that the sponsor was the source of the funds that had been either sent to or used by the appellants for their essential living needs. Her reasoning was that the bundle included tax returns of the sponsor in 2019, 2020 and 2021. The Judge then analysed the payments made by the sponsor to the first and second appellants in the tax year 2020/2021 and calculated that in total they amounted to £5,500 sterling. She compared that with the total business profit of £5,627, and said that that would mean that the sponsor had only £127 in the entire year to meet his own essential living expenses. On this basis, she concluded that she was not satisfied that the funds which allegedly came from the sponsor actually came from the sponsor.

39. For the purposes of resolving the error of law challenge on procedural fairness grounds the Court of Appeal reviewed the authorities, observing inter alia as follows:

29. HA v Secretary of State for the Home Department (No 2) [2010] SC 457 [2010] CSIH 28 was a decision of an Extra Division of the Inner House of the Court of Session presided over by Lord Reed (now PSC), who delivered the Opinion. It made a number of general points about procedural fairness in the context of immigration cases, amongst which the following emerge at [4]-[13]. Subject to the procedural rules governing first instance tribunals, the tribunal has power to decide the procedure it adopts, but in doing so must act fairly. What fairness requires is essentially an intuitive judgment which is dependent on the context of the decision; although it is possible to identify a number of general principles, they cannot be applied by rote identically in every situation. An overall judgment must be made in the light of all the circumstances of a particular case. Whether there is procedural unfairness is fact-sensitive. See [4] and [13]. The tribunal may identify an issue which has not been raised by the parties to the proceedings, but it will be unfair, ordinarily at least, for it to base its decision upon its view of the issue without giving the parties an opportunity to address it upon the matter (see [7]). As an expert body, the tribunal is entitled to reject evidence notwithstanding that the evidence has not been challenged before it. Fairness may, however, require it to disclose its concerns about the evidence so as to afford the parties an opportunity to address them (see [18]). There is, on the other hand no general obligation on the tribunal to give notice to the parties during the hearing of all the matters on which it may rely in reaching its decision (see [10]). Where an applicant can generally be expected to be aware that the tribunal will have to assess their credibility, there will generally be no unfairness in a tribunal proceeding without drawing attention to a point which the applicant could reasonably expect to be plainly relevant to that assessment (at [11]-[12]).

30. In The Secretary of State for the Home Department v Maheshwaran [2002] EWCA Civ 173 [2004] 176 Imm AR, Schiemann LJ delivered the judgment of this court. He drew attention to the difficulties often faced by those sitting at first instance in immigration cases. Of relevance to the present appeal are the following observations. There are innumerable decisions which have stressed that the requirements of fairness are very much conditioned by the facts of each case (at [6]). A failure to put to a party a point which is decided against him can be grossly unfair and lead to injustice because he must have a proper opportunity to deal with the point (at [4]). Where much depends on the credibility of a party which has made several inconsistent statements, that party has a forensic problem as to whether to confront them or focus attention elsewhere. Fairness may in some such circumstances require the inconsistencies to be put to the witness but that will not usually be the case. Usually the tribunal can remain silent, especially if the party is represented, and see how the case unfolds (at [5]).

40. The Court of Appeal found that the First-tier Tribunal Judge had materially erred in law. Their reasoning was that the refusal letters had not challenged that the payments which the sponsor said he had made had not been made. Rather, the two points made in the refusal letters were that the number of payments were sporadic, and the other was the lack of information about the recipient’s financial circumstances. Neither of these raised any question about the credibility of the sponsor. The matter he was required to address, so far as his involvement was concerned, was simply the extent of the payments made by him. The evidence before the First-tier Tribunal included a greater number of payments having been advanced than in the initial application, with similar supporting documentation. There was no reason to anticipate an issue as to whether the sponsor had made them. There was no reason to anticipate a focus on how the sponsor had been able to remit the money. It was not a case in which some obvious inconsistency in the evidence which was being put forward should foreseeably have been addressed without the tribunal raising it.

41. The case of Hussain goes to a different, but overlapping, point which is the extent to which a First-tier Tribunal Judge can or should depart from the role of silent listening. The appellant’s case in Hussain was that Judge Beg had overstepped the mark in the questions she had asked the appellant, who was accused by the respondent of having fraudulently obtained a TOEIC certificate from the Educational Testing Service (ETS).

42. The Court of Appeal held that Judge Beg had not been unduly interventionist, and in their discussion cited with approval the following guidance given by Mr Justice Ouseley:

57. The appellant in JK (Côte d'Ivoire) had relied on the earlier decision of Oyono [2002] UKIAT 2034 in which it had been said, in the passage quoted in JK, that when a witness was giving evidence and both parties are represented, "an Adjudicator's role is of silent listening". Ouseley J commented, at [42], that there was "a danger that the comments … in Oyono have been misunderstood". He pointed to a number of ways in which an Adjudicator might not only have the power but also the obligation to intervene. One was "during evidence-in-chief to seek clarification of an answer". Another was: "Even where the parties are both represented, it is still relevant for questions to be put by the Adjudicator to a witness if they raise matters which trouble the Adjudicator if they have not been raised or dealt with by the opposing advocate. This is especially so if the Adjudicator is concerned by the point and it is something which may affect the decision or indeed should affect the decision, but cannot fairly do so without the relevant witness being given the opportunity to deal with it. The comments made in this respect by the Adjudicator in paragraph 60 are entirely right." This is a relevant and important observation about the proper role of a judge in their conduct of a hearing. The Adjudicator's comments, which Ouseley J endorsed, had been made when the Adjudicator had been responding to an objection to the questions he was asking. He had said: "I did not agree … and pointed out that it was far fairer to allow the appellant an opportunity to explain matters that concerned me in his evidence".

58. Ouseley J also said, at [43]: "An Adjudicator ought not to interrupt examination-in-chief or cross-examination except in the circumstances to which we have referred or for other reasons associated with the general control of the case and the court room. If there are inconsistencies between documents and oral evidence or between answers which have been given already, it is nearly always best to wait until after cross-examination and re-examination to see what matters are put. However, it is wholly legitimate for the Adjudicator to ask his or her own questions on issues of inconsistency, points raised in the refusal letter or matters which trouble the Adjudicator whether or not they are raised by the other party. What is important, however, in relation to those matters is that the Adjudicator should not develop a different case from that being presented by the other party or pursue his or her own theory of the case."

43. Ground 1 relates to the Judge’s finding at para [30] that there was no credible documentary evidence that all the family members lived together in the house in Takanja and to her parallel finding at para [39] that it was not credible that after the appellant and his wife had had 3 children, they had only ever lived in the family home in Takanja. The appellant’s case is that these findings are procedurally unfair because they go outside the parameters of the case put forward in the Review and the issue was not raised in cross-examination of the sponsor or in oral submissions.

44. It was open to the respondent to challenge the factual premise underlying Ground 1 through the mechanism of a Rule 24 response and/or by providing the HOPO’s note of the hearing. As the respondent did not do so, I adopt the same approach as the Court of Appeal in Abdi, which is to proceed on the working assumption that the sponsor was not cross-examined to the effect that the appellant moved out of the family home after the birth of his third child, and nor was a closing submission made by the HOPO to this effect.

45. However, that is not the end of the matter. Firstly, the refusal decision advanced the case theory that the appellant formed an independent family unit away from his parents when he got married, which was in 1994, 15 years before his parents came to the UK. Secondly, although the Review did not expressly challenge the appellant’s claim that his wife had come to join him in the family home and that she and their three children were occupants of the family home, together with him, when his parents left in 2009, I do not consider that the Review conceded that the claim was true. On the contrary, the Review maintained that the appellant had formed an independent family unit long before his parents left for the UK.

46. Thirdly, it is apparent from the Judge’s findings that during the hearing oral evidence was elicited from the sponsor which was pertinent to the veracity of the claim. The sponsor’s appeal statement was silent on the issue of the asserted presence of the appellant’s wife and children in the family home prior to 2009. The sponsor’s appeal statement was also silent on the question of whether Chuman and Sharjila had got married prior to 2009, and when they had moved out. Moreover, as I have highlighted earlier, there was a stark inconsistency in the witness statement evidence with the appellant clearly stating that Chuman and Sharjila had moved out long before 2009, leaving him and another brother to support the remaining occupants, including their parents, through the income they earned by working as labourers, whereas the sponsor implied in his witness statement that all his six children remained in the family home until after he and his wife left in 2009.

47. The key pieces of oral evidence that were elicited from the sponsor during the hearing were (a) his confirmation that all six children continued to reside at the family home until 2009; (b) his confirmation that his third child, the appellant, also continued to reside there with his wife and three children; and (c) that the house in Takanya consisted of three rooms on the ground floor and two rooms on the upper floor.

48. Having regard to the clear inconsistency over when Chuman and Sharjila moved out, and having regard to the oral evidence pertaining to the number of rooms available to the occupants of the family home, and having regard to the sponsor’s evident confusion over how many children he had, which the Judge made a point of highlighting at para [25], it was open to the Judge to disbelieve the sponsor’s evidence that the appellant had continued to reside in the family home after the birth of his third child and to find that he must have moved out with his family at some point between the birth of this third child and the departure of his parents to the UK in 2009.

49. It is not clear when the Judge formulated a concern over the ability, and hence likelihood, of the family home being able to accommodate the entire family, including the appellant, his wife and three children, but I am not persuaded that the Judge needed to have raised this concern during the hearing in order for her finding on this point to be fair. There was an obvious inconsistency in the evidence that was being put forward about the occupancy of the family home in the period leading up to 2009 and this should foreseeably have been addressed without the tribunal specifically raising it.

50. Ground 2 relates to the Judge’s finding at para [31] that it was not credible that the sponsor’s wife who suffered from dementia disposed of some of the money transfer receipts.

51. I assume that the sponsor was not cross-examined on this topic and I accept that there is no indication in the Judge’s discussion that she questioned the sponsor about this aspect of his evidence. But as was identified in the Review, there was no evidence whatsoever of any remittances prior to 2022. Hence, there was no documentary evidence of any financial support from the sponsor to the appellant for a period of 12 years, running from 2009 to 2021. In anticipation of the veracity challenge that was inevitably going to follow, and which was already implicit in the refusal decision, the sponsor offered two explanations in his appeal statement. The first was that he simply had not kept receipts, as he had not seen a need to do so. The second was that his wife had destroyed some of them during one or more psychotic episodes. Although the Review did not specifically challenge the second explanation, I do not consider that the Review conceded that it was a satisfactory or credible one. The medical letter referenced in the Review was a letter dated 27 February 2017 from a hospital giving a diagnosis of Lower Respiratory Infection, Cholecystitis, Type 2 Diabetes and Depression. In acknowledging that the appellant had provided a medical letter in support of the explanation offered by the sponsor, the respondent was not conceding that the medical evidence established the veracity of the explanation. The Review continued to challenge the veracity of the core claim on the ground that, if true, the appellant ought to be able to demonstrate financial support for the period 2009 to 2021 by other means, such as the production by him of his own bank statements showing monies received by him from his father and/or by the sponsor producing his bank statements to show money leaving his account for the purposes of making money transfers to the appellant.

52. In the Decision the Judge noted that the appeal bundle included GP records for the sponsor’s wife. Although not highlighted by her in her discussion, the GP records went back to 2017. The sponsor’s wife was first diagnosed with having a significant depressive disorder in 2021, and it was not until October 2022 that she was diagnosed with “recurrent major depressive episodes, severe, with psychosis”, followed by a diagnosis of dementia in January 2023. However, whereas it remained the case that there was no documentary evidence of any financial support prior to 2022, it also remained the case that the sponsor had produced numerous remittance receipts from 2022 onwards.

53. Against this background, it was clearly open to the Judge to disbelieve the sponsor’s explanation that the complete absence of remittance receipts prior to 2022 was partially explained by his wife having destroyed them due to her mental ill-health. Fairness did not require the Judge during the hearing to raise with the sponsor or with appellant’s Counsel a concern about the credibility of the explanation.

54. Ground 3 relates to the finding at paragraph [41], where the Judge found that the sponsor had emotional support from his children in the UK (including his son, with whom he lived). It is correct that there is no requirement that one of the parties is the other party’s only source of emotional support. However, in assessing whether there is extant family life between the adult dependent child in Nepal and the sponsor in the UK, the family ties that each of them has in the country where they reside is a relevant consideration. In Kugathas [2003] EWCA Civ 31 Arden LJ said at [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.”

Notice of Decision

The decision of the First-tier Tribunal did not contain an error of law, and accordingly the decision stands. This appeal to the Upper Tribunal is dismissed.

Andrew Monson
Deputy Judge of the Upper Tribunal
Immigration and Asylum Chamber
5 May 2025