Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2025-002280

First-tier Tribunal No: HU/54298/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:

On 5th of September 2025

Before

UPPER TRIBUNAL JUDGE REEDS
DEPUTY UPPER TRIBNAL JUDGE SYMES

Between

LILA KUMARI THAPA
(no ANONYMITY ORDER)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Ms McCarthy, Counsel instructed on behalf of the appellant
For the Respondent: Ms Clewley, Senior Presenting Officer

Heard at Field House on 23 July 2025

DECISION AND REASONS

1. This the appeal of Lili Kumari Thapa, a citizen of Nepal born 17 August 1981, against the decision of the First-tier Tribunal of 27 March 2025 to dismiss her appeal on human rights grounds, itself brought against the respondent’s refusal (dated 8 February 2024) of her entry clearance application to join her family in the UK.

Procedural background

2. The appellant's application sought to take advantage of the immigration route for family members of Gurkhas who served in the British Army and were discharged before 1 July 1997.

3. The appellant's case as advanced below was essentially this. She is the daughter of Nar Kumari Sen, the Sponsor. She met her husband, Birendra Thapa, when in ninth grade in school (i.e. aged around fifteen). She fell in love with him, and they eloped together and married in June 1998. Their relationship initially received her parents’ blessing and she had a son, Youare, in February 2000, and a daughter, Yumi, in October 2004. However once Mr Thapa moved abroad for work she was mistreated by her in-laws, and her husband took their side. The children were sent away to stay with Mr Thapa’s elder brother’s family. She never lived with Mr Thapa for more than a year in total although she was culturally bound to that relationship, divorce being taboo. As a consequence she often lived with her mother (her father’s second wife), her brother, Bhel Bahadur, and her step-mother (her father’s first wife), at their family home in the remote village of Malyankot.

4. Her father died on 31 October 2007, and in 2015 her mother learned that she could take up the option of coming to live in the UK due to his service in the Brigade of Gurkhas. The appellant's step-mother died that year. The appellant's mother and brother moved to Kathmandu for a while before her mother relocated to the UK in July 2017; her brother joined her after his application’s refusal was overturned on appeal. In the meantime the appellant remained in Malyankot.

5. Following her mother’s departure to the UK, the appellant lived in Kathmandu in rented accommodation, financially supported by her mother, originally via a loan secured against her mother’s jewellery and subsequently via the direct remittance of funds. She spoke to her mother nearly every day and her mother had visited her in Nepal for a month in 2018, and for two months in each of 2019 and 2022. The family came to understand that her ongoing marriage represented a barrier to an entry clearance application and so she procured a divorce from her husband on 5 January 2024.

6. Based on those facts, the appellant asserted that given her long-term dependency and frequent historic cohabitation with her mother she enjoyed family life with her such that, bearing in mind the historic injustice visited on the Gurkhas and their original inability to relocate to the UK with their dependent family members, it would be disproportionate to refuse her entry clearance.

7. The respondent refused her application for the following reasons (we cite the relevant aspects of the Immigration Rules, albeit that the First-tier Tribunal did not do so itself).

(a) She was not living in the same household as her father, had lived in a different household for more than two years continuously immediately before her application date, and also for over two years continuously overall, for reasons other than education or something similar. The appellant's mother had mostly lived in the UK since June 2017. Moreover a witness statement provided in the appellant's brother’s own appeal against the refusal of entry clearance referred to her not having seen her mother until 2004, having run away from home whilst still at school, which was more than five years after her eighteenth birthday (AF (GHK) 13.2(b)-(d)).

(b) The appellant's application referenced being divorced and having two dependent children. Her marriage certificate from 1998 and divorce certificate from 2024 indicated that she had formed an independent family unit (AF (GHK) 13.2(e)).

The First-tier Tribunal’s decision

8. The First-tier Tribunal dismissed the appeal making the following findings.

(a) The timing of the divorce in January 2024 appeared to be motivated primarily a wish to improve the immigration application, and did not undermine the starting point suggested otherwise by the fact of her marriage, i.e. that the appellant had made an independent life for herself.

(b) The appellant's application form, by referencing two dependent children (albeit that it was confirmed at the hearing that they were now living abroad and self-sufficient), also suggested that they were not truly independent of the appellant, in turn inviting the inference that she had maintained an independent family unit.

(c) In the appellant's brother’s appeal in 2021, his evidence referred to the appellant being married and residing with her own family. This was a significant discrepancy going to the heart of the family’s asserted living arrangements and substantially undermined the account’s credibility.

(d) The evidence of financial support was intermittent rather than sustained.

(e) The proof of emotional support was unsatisfactory: the screenshots included many missed calls and undated records, and overall provided limited traceable evidence of the frequency, duration, or content of any communications between the appellant and her mother.

(f) The appellant's brother’s evidence before the First-tier Tribunal in the present appeal was contradictory step and lacked precision; he was unable to explain why a settlement application was not made earlier or why the divorce had not been pursued sooner given the underlying relationship had broken down so many years earlier, and his explanation that the appellant's husband remained abroad and could not be served with the relevant divorce papers was vague and uncorroborated by documentary evidence.

9. Based on those findings the First-tier Tribunal concluded that family life was not established between the appellant and her mother and brother in the UK. Accordingly it was unnecessary to go on to determine whether interference with family life was proportionate. Though had that exercise been necessary, the Tribunal opined that the appellant's inability to meet the Immigration Rules, the degree of independent life she had maintained over the years and the absence of evidence of unjustifiably harsh consequences attending the application’s refusal, together indicated the decision was a proportionate one.

The appeal to the Upper Tribunal

10. The appellant's grounds of appeal contend that the First-tier Tribunal erred in law in the following ways.

(a) The fact that evidence of financial remittances might not be consistent over time failed to take account of an immigration appeal’s focus on circumstances appertaining at the hearing date; besides, even intermittent financial support could demonstrate real and effective support over time. The FTT's reference to “sustained or comprehensive” financial support and a pattern of “prolonged or regular dependency” indicated the wrong test had been applied.

(b) The entry clearance application read as a whole did not indicate that the appellant still had dependent children given that the divorce agreement supplied therein recorded that they were in the protection and preservation of their father and the witness statements explained they were studying in Australia and the UK. Besides, the appellant's relationship with her children was irrelevant to whether she enjoyed effective and committed support from her mother. The Tribunal was wrong to record the evidence before it from the appellant's mother and brother as to the effect that she had lived continuously with them. Rather she was mainly living with them given her unhappy marriage and poor relationship with her in-laws.

(c) There was ample evidence of emotional ties between the appellant and her mother found in their witness statements, aside from the records of calls and messaging between them. The Tribunal's treatment of the divorce’s timing failed to take account of the cultural milieu in which the family lived; their decision to postpone that socially controversial step was a rational one.

(d) Once the proportionality assessment was reached, the grant of entry clearance to the Sponsor and the appellant's brother showed that the public interest balance was in favour of permitting her to join them.

11. The First-tier Tribunal (Judge Athwal) granted permission to appeal on 23 May 2025 on the basis that the first two grounds were distinctly arguable, and the other grounds overlapped with the first two.

12. For the appellant Ms McCarthy developed the grounds of appeal and submitted that the First-tier Tribunal had failed to apply the Kugathas test and wrongly required sustained support when the focus should have been on whether there was recent effective and committed support. There was no significant discrepancy between the information provided on the application and the evidence provided for the appeal hearing as to the appellant’s dependency on her mother. Her brother’s evidence as to the appellant's location in the context of his own appeal hearing was brief and not intended to give a detailed narrative of her living arrangements, given that he was focussing on the strength of his own ties with his mother at the time. The witness statement evidence of the appellant's unhappy marriage had been overlooked.

13. For the respondent Ms Clewley replied that the Judge below had been entitled to make the findings that it did. The timeline of the appellant's living arrangements was unclear, and the critique of the evidence relied on to establish family life was in that context wholly reasonable.

Discussion

14. It is worth observing, before moving onto the substance of this appeal, that a series of decisions have recognised that the historic injustice visited on the ex-members of the Gurkha Brigade has the consequence that, if family life continues between their surviving partners and adult children, the refusal of entry clearance is likely to be disproportionate. A convenient summary is found in Pun [2017] EWCA Civ 2106 at §9-11:

“Veterans of the Brigade of Gurkhas discharged before 1997 were denied any opportunity to apply for settlement until 2004. This was found to be a historic injustice in R (Limbu) v SSHD [2008] EWHC 2261 (Admin) – see §68(i), and confirmed in R (Gurung).
The policy originally announced in 2004 acknowledged the debt owed to servicemen and their families: see ministerial statement in R (Limbu) at paragraph 12. However, the policy which attempted to correct the injustice to veterans (DSP 29.4) was found irrationally restrictive in the factors to which it purported to have regard (failing, for example to take into account length of service or particularly meritorious conduct, and emphasising ties to the UK which Gurkhas were inherently unlikely to acquire).
A second policy introduced in 2009 (and announced by the Secretary of State as being intended to correct the injustice) provided that wives and minor children would be granted indefinite leave to remain in line with the Sponsor. It was this policy which was considered in Gurung. The court rejected challenges to the lawfulness of the policy and held that, where there was a dependency, the historic injustice should have substantial weight when applications of adult dependent children to remain came to be considered.”

15. Sedley LJ in Kugathas [2003] EWCA Civ 31 stated §17 that "if dependency is read down as meaning "support", in the personal sense, and if one adds, echoing the Strasbourg jurisprudence, "real" or "committed" or "effective" to the word "support", then it represents … the irreducible minimum of what family life implies".

16. The Immigration Rules seek to reflect that case law, and the requirements therein as to periods of continuous residence with the Gurkha parent and of not having formed an independent family unit are aimed to measure the establishment and maintenance of family life. Of course, those criteria can be no more than general benchmarks in the context of a human rights appeal where the Tribunal's focus must ultimately be on ECHR Art 8, but they are relevant to that assessment. Thus it was that before the First-tier Tribunal the appellant conceded that she could not meet the terms of the Rules given the length of time she had lived separately from her parents but nevertheless maintained that the refusal was a disproportionate interference with their collective family life.

17. When considering this appeal, which essentially amounts to an assault on the factual findings below, we remind ourselves of the appropriate restraint we should exercise, see e.g. Yalcin [2024] EWCA Civ 74, per Underhill LJ §50-51 (for concision some of the case references are removed):

" 50. … I should recapitulate the approach that should be taken in considering whether the FTT made an error of law. At para. 72 of his judgment in HA (Iraq) (but with reference to the appeal in AA (Nigeria)) Lord Hamblen said:
"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. In particular:
(i) They alone are the judges of the facts. Their decisions should be respected unless it is quite clear that they have misdirected themselves in law. It is probable that in understanding and applying the law in their specialised field the tribunal will have got it right. Appellate courts should not rush to find misdirections simply because they might have reached a different conclusion on the facts or expressed themselves differently … .
(ii) Where a relevant point is not expressly mentioned by the tribunal, the court should be slow to infer that it has not been taken into account ….
(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 …"

18. It is right to acknowledge that one of the appellant's grounds of appeal has a degree of force. There was evidence from the family that she would not have ended her marriage via formal divorce proceedings due to the ensuing cultural stigma unless there was good reason to do so.

19. However, we consider that the findings of the First-tier Tribunal were otherwise sustainable. The appellant did indeed state on her application form that she had two children who were not only dependent on her, but lived with her, which the Judge below was entitled to treat as a strong indication that she was living in an independent family unit, whether or not their father was the main source of financial support (though we should say that her witness statement attributed their primary support to their uncle).

20. The most significant issue on the appeal was the detail of the appellant's living arrangements over time. We have attempted to summarise her case as best we can above, but beyond the general proposition that she lived with her husband and then with his in-laws for a period, and then intermittently with her own family, it is very difficult to discern any clear chronology as to where she lived at any particular time. For one extended period she seems to have lived with her children in Malyankot whilst her mother and brother lived in Kathmandu. Thus it is that evidence such as that given by her brother at his own appeal hearing took on particular importance, because it represented a narrative against which the account as now put could be tested. His evidence at that earlier hearing is recorded as being that “He has one sister who lives in Nepal, but she is married with her own family.” That evidence was not on a peripheral issue to his own appeal: the family’s living arrangements over time were absolutely central to the case that was then being advanced. He had the benefit of legal representation at that hearing. If his sister had spent most of her time living with him and his mother in recent years, then it is very difficult to see that he would have given the answer that he did. We would add that examination of the underlying evidence as a whole as to the appellant's childrens’ circumstances casts doubt on whether the full picture has been properly explained. For example, a letter of 11 September 2024 from the appellant's landlord stated that the appellant had been living there with her children since 2022, which it is difficult to square with the proposition advanced elsewhere in the appeal that her husband was wholly responsible for their welfare.

21. Given the rather vague account of the appellant's living arrangements over time provided in the witness statements and oral evidence, the First-tier Tribunal was entitled to carefully scrutinise any independent evidence as to the existence of financial and emotional support. It was correct to say that the evidence of financial support was intermittent and that the call records are inconclusive as to the true extent of meaningful communication between mother and daughter. In so doing, we do not consider the Tribunal was misdirecting itself as to the correct legal test and demanding consistent evidence of constant emotional and financial support ever since the appellant's mother came to the UK. Indeed the Judge refers to the correct test of “real, effective or committed support” at paragraph 19 of the decision. Rather, the Judge’s conclusion was that the necessary evidence to make good the vagueness of the general narrative was wanting. As observed by Popplewell LJ in AA (Nigeria) [2020] EWCA Civ 1296 §9: “Judges who are experienced in these specialised courts should be assumed by any appellate court or tribunal to be well familiar with the principles, and to be applying them, without the need for extensive citation, unless it is clear from what they say that they have not done so.” The Judge’s language overall does not suggest that the test was misunderstood.

22. The First-tier Tribunal also made a finding within the range of reasonable responses when it concluded that the evidence as to the timing of the appellant's application was unsatisfactory. On the family’s narrative, her marriage had broken down many years earlier and she was living alone for a significant period before the application was made. It is unsurprising that the Judge found that the application having been deferred for so long was inconsistent with the appellant being seen as an integral part of the family unit.

23. Read as a whole and bearing in mind the weaknesses it identified in the evidence before it, the First-tier Tribunal’s findings are sustainable ones, having regard to the appropriate restraint we should exercise having regard to decisions such as Yalcin. As Sedley LJ remarked in Patel, Modha & Odedra v Entry Clearance Officer (Mumbai) [2010] EWCA Civ 17 §14: “You can set out to compensate for a historical wrong, but you cannot reverse the passage of time. Many of these children have now grown up and embarked on lives of their own.” Whilst there is doubtless genuine affection held for one another between the appellant, her mother and brother, the Judge below essentially found that this fell short of constituting family life in the Kugathas sense. That finding was fatal to the appeal.

24. Consequently for the reasons set out above the appellant has not established that the First-tier Tribunal’s decision involved the making of an error on a point of law, therefore its decision shall stand. The appellant’s appeal is dismissed.

Notice of Decision:

The decision of the First-tier Tribunal did not involve the making of an error on a point of law; its decision stands. The appellant’s appeal is dismissed.

15 August 2025

Mark Symes

Deputy Upper Tribunal Judge Symes

Deputy Judge of the Upper Tribunal
Immigration and Asylum Chamber