Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2025-001861

First-tier Tribunal No: HU/53654/2023

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On 18 July 2025

Before

DEPUTY UPPER TRIBUNAL JUDGE PARKES

Between

BIR BAHADUR RAI
(NO ANONYMITY ORDER MADE)
Appellant
and

ENTRY CLEARANCE OFFICER
Respondent

Representation:
For the Appellant: Mr D Bhattari (Counsel, instructed by Gordon and Thompson Solicitors)
For the Respondent: Ms N Kerr (Senior Presenting Officer)

Heard at Field House on 25 June 2025

DECISION AND REASONS
1. The Appellant, a citizen of Nepal, applied for entry clearance as the adult dependent of a former Gurkha soldier. The application was refused the ECO and the Appellant's appeal against the refusal was heard by First-tier Tribunal Judge Beg at Manchester by CVP on the 20th of February 2025. The appeal was dismissed for the reasons given in the decision promulgated on the same day.
2. The Appellant sought permission to appeal in grounds of application of the 20th of March 2025. Under a heading asserting that the Judge had applied an elevated or higher legal threshold in the assessment of family life under article 8 a number of arguments were raised. It was argued that the Judge had accepted the Appellant was accommodated by his mother, paragraph 26 of the decision, and that he was financially dependent on her, paragraph 28. At paragraph 30 the Judge noted that the Appellant was lonely without his mother as they had always lived together.
3. The grounds take issue with the Judge’s approach to the Appellant's having been married and then divorced, it is argued that it is a factor but the fact of marriage did not break family life with a parent. The test is whether there was real, committed or effective support and it is argued that the Judge failed to make relevant findings and reached a conclusion contrary to the evidence. Permission to appeal was granted by the First-tier Tribunal on the 24th of April 2025,
4. For the hearing on the 25th of June 2025 an Appeal Skeleton Argument was prepared, this is at page 16 of the CE file. This expanded the basis on which the Appellant's case was put and Mr Bhattari made oral submissions in support to which the Home Office responded and Mr Bhattari replied.
5. The grounds argue that the Judge applied an elevated threshold in the assessment of family life under article 8. The grounds refer to paragraph 26 where the Judge noted that the Appellant had married in 2017 and remained in the family property for economic reasons. In paragraph 28 the Judge had noted Appellant's financial support from the Sponsor and it is stated that there was no adverse credibility finding. The Judge noted in paragraph 30 that the Appellant was lonely without the Sponsor and had considered the evidence of communication between them.
6. Turning to paragraph 31 it is argued that the Judge relied on the fact that the Appellant had been married and submit that the fact of a previous marriage did not automatically lead to the conclusion that family life with a parent had been broken. Reliance is placed on the case of Patel and others v ECO, Mumbai [2010] EWCA Civ 17, regarding the possible continuation of family life between adult children and their parents in the context of a lengthy time apart.
7. The Home Office maintained that the decision was open to the Judge submitting that this was a structured assessment directed at the issue involved which included the Appellant's age. His marriage represented independence and it was argued that had broken the chain of independence. The Judge had noted that the transfers were of modest amounts and sent intermittently and found that the ties were not real, effective or committed support. The question of the historic injustice arose for consideration at the proportionality stage.
8. In reply Mr Bhattari observed that the reference to Agyarko in paragraph 17 and section 117B did not reflect the test to be applied and were not the correct approach. Other submissions repeated the Skeleton Argument.
9. The decision under appeal could not be characterised as superficial. In paragraph 6 the Judge referred to the relevant cases of Gurung and Gishing and noted that where article 8 was found to be engaged that would ordinarily be determinative of the appeal. In terms of assessing whether there was family life the Judge properly referred to Kugathas in paragraph 8 and in the discussion at paragraphs 16 to 18 had in mind both Razgar and Agyarko and also referred to section 117B of the Nationality, Immigration and Asylum Act 2002. At paragraph 23 the Judge referred to both Rai and Patel and appreciated that family life could fall short of dependency.
10. Accordingly from paragraph 26 onwards the Judge’s discussion focussed on whether the Appellant and the Sponsor, his mother, had family life before she came to the UK and whether that had continued. In paragraph 26 the Judge found that the Appellant established his own independent family unit on his marriage and that the divorce was in December 2022, after the Sponsor had settled in the UK.
11. The money transfers were addressed in paragraph 27 with the Judge observing that the sum sent was £50 and that was not sent every month. Even if the Appellant relied on his mother for financial support that was only one relevant factor. The evidence from the Municipality, considered in paragraph 29, was not factually accurate. It is clear that the Judge attached effectively no weight to the document and for the reasons given that was open to the Judge.
12. The Judge took into account the Appellant's and Sponsor's witness statements and the evidence of communication between them. It was found to be a good relationship but not one that went beyond the normal emotional ties to be a relationship of real, committed and effective support. The Judge noted the support the Appellant received from his siblings in Nepal.
13. The Judge gave reasons for finding that article 8 was not engaged. The findings were in the context of appropriate directions and with the Judge having set out the relevant legal background and case law. The decision has to be read as a whole and in doing so I am satisfied that the decision was open to the Judge for the reasons given. The references to Agyarko and section 117B of the 2002 Act were not material to the decision. The decision was open to the Judge for the reasons given and the decision does not contain any error or law.
14. I apologise for the delay in the promulgation of this decision which has been caused by technical difficulties in the manner in which it has been saved.
Notice of decision
15. The decision of Judge Beg stands as the decision in this appeal, the Appellant's appeal is dismissed.

Judge Parkes

Deputy Judge of the Upper Tribunal
Immigration and Asylum Chamber

11th July 2025