Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
(IMMIGRATION AND ASYLUM CHAMBER)
Case No: UI-2025-002739

(First-tier Tribunal No: HU/59768/2023
LH/07333/2024)

THE IMMIGRATION ACTS
Decision & Reasons Issued:
On 3 November 2025

Before

DEPUTY UPPER TRIBUNAL JUDGE FROOM

Between

MR KESAVAN NAIR
(NO ANONYMITY ORDER MADE)
Appellant
and

THE ENTRY CLEARANCE OFFICER
Respondent

Representation:
For the Appellant: Mr A Pipe, Counsel, instructed by Clifton Law Solicitors
For the Respondent: Mr B Hulme, Senior Home Office Presenting Officer

Heard remotely by CVP on 21 October 2025 (Field House)

DECISION AND REASONS
1. The Appellant appeals with the permission of the First-tier Tribunal against a decision, dated 24 April 2025, of a Judge of the First-tier Tribunal sitting remotely (Nottingham) (“the Judge”) dismissing his appeal against a decision of the Respondent, dated 24 July 2023, refusing his application for leave to enter the United Kingdom to join his daughter, Ms Shalini Nair (“the sponsor”). The Appellant is a citizen of India born on 21 August 1937.
2. The First-tier Tribunal did not make an anonymity order and I saw no reason to make one either.
The factual background and First-tier Tribunal decision
3. The Appellant applied for entry clearance as long ago as 18 April 2023. The Respondent decided the Appellant did not meet the eligibility requirement of the Adult Dependent Relative rules found in paragraph E-ECDR.2.5 of Appendix FM of the Immigration Rules. That provision stated as follows:
“The applicant or, if the applicant and their partner are the sponsor's parents or grandparents, the applicant's partner, must be unable, even with the practical and financial help of the sponsor, to obtain the required level of care in the country where they are living, because-
(a) it is not available and there is no person in that country who can reasonably provide it; or
(b) it is not affordable.”
4. The Respondent accepted that the Appellant required care due to his health conditions (chronic hypertension, ischaemic chronic HFpEF, dyslipidaemia, atherosclerotic cardiovascular disease, hearing impairment and depression) but there was no evidence that the required care could not be provided to the Appellant in India. The Respondent also rejected the application on Article 8 grounds outside the rules.
5. At the beginning of the hearing in the First-tier Tribunal, the Judge noted the agreed issues were (i) whether the ADR rules were met, (ii) whether the Appellant met GEN 3.1 and 3.2 of the rules, and, (iii) whether removing the Appellant (sic) breached his or his family’s right to family life. She heard oral evidence from the sponsor and submissions from the parties. She noted there was no issue as to the affordability limb of the test under the rules and the only contested issue was the availability of care.
6. At [18] to [50] of her Decision, the Judge set out her reasons for finding against the Appellant on the issue of availability. The Judge said she found the sponsor had exaggerated some of her evidence ([19]). The Appellant had been able to live alone for three years since the decision with the support network he has, which had become clearer at the hearing than had been explained in the sponsor’s witness statement ([22]). The Judge was unimpressed by the doctor’s letter provided by the Appellant for the reasons she gave at [23] and [24]. This refers to the letter of Dr V K Abichandani, who practises in Ahmedabad, where the Appellant lives. The Judge was also unimpressed by the social worker’s report for the reasons she explained at [26] to [30]. This refers to the report of Ms Alison Tyrell, an independent social worker. The Judge repeated at [31] that it was accepted the Appellant is in frail health and elderly, but she reasoned that many people live alone in this way and self-care or have carers, as the Appellant has been doing for three years. Focussing on the issue in dispute, the Judge stated at [33] that the Appellant currently gets care and he has the options of receiving more care in his own home or moving to a care home. She set out the current circumstances at [35]:
“At present is (sic) was stated that he lives alone, he has a maid who does some cleaning, a neighbour sends him food which he can heat in the microwave, he has a neighbour’s son who pops in to check on him and stay with him when he showers and a friend of the Sponsor’s takes him to medical appointments. Although the Sponsor claims this is not sufficient he is not malnourished or dehydrated or the doctor would report that, there have been no confirmed incidents with him overdosing on medication and he has not sustained any injuries or falls that have needed medical intervention so the Tribunal find (sic) that he is managing at the moment with the support network he has.”
7. The Judge noted the sponsor’s concerns about the suitability of carers but observed that this problem exists worldwide. There are many agencies providing carers ([36)]. The appellant had other options, such as moving nearer his relatives in India ([37]) or going into a care home ([38], [39]-[40]). At [41] to [48] the Judge gave reasons for placing little weight on the expert report of Dr Wali.
8. Turning to Article 8, the Judge found the sponsor came to the United Kingdom 23 years ago such that there was not an “exceptional level of dependency” and she appears to conclude at [55] that there was no family life as between the Appellant and sponsor so as to engage Article 8. However, she explained at [56] that, even if there were family life, the refusal of entry clearance would be proportionate because of the weight to be given to the public interest in maintaining immigration controls.
9. The grounds seeking permission to appeal argue, in summary, as follows:
(a) The Judge misdirected herself at [55] as requiring exceptional circumstances in order to find family life;
(b) The Judge had erred in her assessment of family life by overlooking the fact the sponsor has been having treatment for breast cancer;
(c) The Judge had erred by leaving out of her consideration the Appellant’s need for emotional support and she had considered an irrelevant matter, namely, the choice of the sponsor and her brother to move abroad;
(d) The Judge had overlooked the addendum bundle which contained evidence of MRI scans on the Appellant’s brain and a further witness statement by the sponsor describing, among other things, an electrical fire at the Appellant’s home;
(e) The Judge made contradictory findings at [39] and [40] as to whether the sponsor had looked into care homes in India; and
(f) The Judge’s rejection as “speculative” the doctor’s opinion that the Appellant was not likely to be able to take care of himself was irrational.
10. Judge of the First-tier Tribunal Seelhoff granted permission to appeal on all grounds. In relation to ground (e), he pointed out that paragraph [39] could be read in two ways.
11. The Respondent has filed a Rule 24 Response opposing the appeal. In summary, it responds to the grounds as follows:
(a) Any error is immaterial because the Judge found the decision would be proportionate;
(b) The Judge had factored in the sponsor’s surgery at [55] and this needed to be read with [56];
(c) Any error by the Judge in her reliance on BritCits v SSHD [2017] EWCA Civ 368 was immaterial because the Judge had clearly looked at all the relevant factors;
(d) The material in the addendum bundle was not such that overlooking it amounted to a material error;
(e) There was no contradiction between the Judge’s findings at [39] and [40] and the ground was merely disagreement with the Judge’s decision; and
(f) Again, the grounds are mere disagreement with the Judge’s assessment of the report, which was adequate.
The submissions
12. The hearing took place by means of CVP video link. The connection worked well and I was not told of any issues as regards the ability of the parties to participate in the hearing fully.
13. Mr Pipe elaborated on the grounds seeking permission to appeal. In relation to (a), he said the wrong test of family life had been applied and the Respondent acknowledged this in the Rule 24 response. In relation to (b), which he argued addressed the materiality of the error in (a), Mr Pipe referred to the evidence showing the sponsor had spent time with the Appellant prior to her diagnosis and treatment for breast cancer. She had been prevented from travelling and her illness had added to the Appellant’s emotional distress.
14. Mr Pipe’s submissions on the rules began with (c) and he highlighted the Judge’s statement at [32] that, having noted the Appellant’s desire for love and affection and emotional support from the sponsor: “This is of course what every elderly person reasonably wants but it is not what the law intends. [The appellant’s] children chosen (sic) to move to the UK and USA which means that this situation, that an elderly parent will at some time be left alone in another country, was a foreseeable consequence of their personal immigration choices and which they both made knowing the cultural expectation that the sponsor says falls on them to care for their parents in old age”.
15. Relying on the full test from BritCits (above), Mr Pipe argued this showed the Judge had given insufficient attention to the emotional aspect of the case and had thereby closed her mind to a material consideration. Furthermore, by criticising the choices made by the Appellant’s children, the Judge had given consideration to an immaterial matter.
16. Moving on to (d), Mr Pipe said the addendum bundle had been before the Judge and she had overlooked the evidence of the neighbour being called in the night by the Appellant, being taken to hospital and the electrical fire in his home. There was also medical evidence that the Appellant had been given a brain scan which showed “white matter disease”.
17. As regards (e), Mr Pipe acknowledged the point made by Judge Seelhoff that paragraph [39] could be read both ways and he said this was not his strongest ground. Finally, dealing with (f), he argued that the doctor’s letter contained an opinion that the appellant needed care and he would not be likely to look after himself. This was not speculation, as the Judge said at [23].
18. Mr Hulme replied, opposing the appeal. He accepted the Judge’s requirement for exceptional circumstances in relation to the test for family life would be erroneous but he argued this error was not material as the Judge had gone on to find in the alternative that the decision was proportionate. In relation to her proportionality assessment, there could be no material error because the Judge was plainly aware of the sponsor’s medical condition and surgery as she referred to it. Mr Hulme argued paragraph [32] should be read with [33] and the Judge was reminding herself of the correct test. In relation to the absence of any reference to the evidence in the addendum bundle, Mr Hulme said the incident of the fire did not arise from the Appellant’s medical condition. There was no contradiction between [39] and [40] and the Judge’s conclusion was reasonably open to her on the evidence. Irrationality has a high threshold and it had not been reached in this case. The Judge was entitled to place little weight on the doctor’s letter for the reasons she gave.
19. In reply, Mr Pipe agreed with me that the Respondent’s decision did not indicate that the existence of family life was disputed. The sponsor’s cancer diagnosis had had an impact on the family unit as a whole.
Decision on error of law
20. Having heard the parties’ submissions, I announced that I would reserve my decision. Having considered the submissions made, I have decided that the Judge’s Decision does not contain any material error of law and it shall stand. My reasons are as follows.
21. It is clear that, with respect to the rules, the only issue in contention was the availability of care for the Appellant. It is important to keep that in mind when scrutinising the Decision. It was conceded that the Appellant requires care due to his age and various health conditions and the sponsor confirmed she could afford it.
22. The Judge referred to the BritCits case at [20]. The guidance given in that case states in full at [59] of the judgment as follows:
“Second, as is apparent from the Rules and the Guidance, the focus is on whether the care required by the ADR applicant can be "reasonably" provided and to "the required level" in their home country. As Mr Sheldon confirmed in his oral submissions, the provision of care in the home country must be reasonable both from the perspective of the provider and the perspective of the applicant, and the standard of such care must be what is required for that particular applicant. It is possible that insufficient attention has been paid in the past to these considerations, which focus on what care is both necessary and reasonable for the applicant to receive in their home country. Those considerations include issues as to the accessibility and geographical location of the provision of care and the standard of care. They are capable of embracing emotional and psychological requirements verified by expert medical evidence. What is reasonable is, of course, to be objectively assessed.”
23. Whilst the Judge only explicitly referred to the first part of the above paragraph at [20], it is clear she was aware of the authority and her failure to set out the entire paragraph, including reference to emotional support, does not justify the conclusion that she was unaware of it. The issue is whether the decision read as a whole shows she applied it and, in my judgement, it does. The Decision contains numerous cogent reasons, based on the evidence, for the Judge’s overall conclusion that suitable care for this Appellant is available in India. She found the sponsor had exaggerated her evidence and there is no challenge to that assessment. The Judge noted the Appellant had been able to live alone for the last three years with the support network which was in place, despite the inability of the sponsor to travel to India as often as she would like.
24. It is true that, at [32] the Judge moves fairly abruptly from noting the sponsor’s evidence that her father needs her emotional support to noting the choices made by her and her brother to emigrate with the foreseeable consequence that an elderly parent might be left alone. As comment, this would be unnecessary. However, I consider it has to be understood in the context of the Judge’s reaction to the sponsor’s evidence about the cultural expectation that children will look after their parents.
25. It is not a fair reading of the decision to say the Judge erred by leaving out of her consideration the Appellant’s need for emotional support. She clearly accepted the Appellant is isolated. She reminds herself again of the test at [29] when rejecting the evidence of Ms Tyrell: “The issue for the Tribunal is (sic) reasonable available care not which would be better or which he or the Sponsor would prefer.” Then at [31]: “It is accepted that [the Appellant] is elderly and in frail health, but many people live alone in this way and self-care or have carers as he is and has been doing for three years now.” The Judge shows she was aware the test was objective. In relation to the option of the Appellant going into a care home, the Judge noted at [39] this could not replace family love and affection “but this does not mean he will not be well looked after and visits can continue and phone calls as they do now.” The Judge showed she understood the emotional support provided would not be equal to that which could be provided by family members, but she considered that nonetheless it would be sufficient to meet the Appellant’s needs. She rejected the sponsor’s claim that her father would be lonely in a care home.
26. I consider Mr Pipe was correct not to press ground (e). A fair reading of paragraphs [39] and [40] shows that the Judge found the sponsor had considered the option of a care home but she did not accept her evidence that she had contacted them so as to support her claim that her enquiries had revealed that this was not a viable option for the Appellant. The Decision is strewn with typographical errors suggesting a lack of careful proof-reading and the first sentence of [40] is a prime example (“The Sponsor said she has constant care hones but there was no evidence of this and do not accept this as credible”). I proceeded on the basis this is intended to mean the sponsor claimed to have contacted a number of care homes but the Judge did not believe her evidence on this.
27. Returning to ground (d) and the addendum bundle, I agree with Mr Pipe that there is no reference to the bundle or its contents with which to satisfy myself that the Judge had taken it into account. However, I do not agree that this amounts to a material error of law because it is not possible that the Judge might have come to a different conclusion. The sponsor’s further witness statement supports the claim that the Appellant needs care but does not add materially to the case that this is not available to him in India. The neighbour assisted him, he was taken to hospital and, as said by Mr Hulme, the electrical fire was not a consequence of the Appellant’s ill-health or frailty. It was an electrical fault which could happen anywhere. The documents headed ‘Medimax’ show the Appellant can access the health investigations he needs, presumably because a friend is able to take him to appointments and his children can pay for them. The reports are clearly written for a medical partitioner to interpret and have not been explained. It is true that the opinion section of one document refers to “[a]ge related cerebral atrophic changes” but there is no explanation of the seriousness of this or how it might affect the Appellant’s reasonable need for care. The same could be said of the reference to “[h]igh likelihood of at least one stenosis”.
28. As for (f), I do not find the high threshold for showing irrationality has been reached. The part of the Decision highlighted is paragraph [23], where the Judge analyses the letter from the doctor. The letter is very brief and, as the Juddge notes, does not provide any explanation or cogent reasons for the bald conclusion that the Appellant is not likely to be able to take adequate care of himself”. As the Judge notes, the letter shows no familiarity with the Appellant’s current care arrangements. The Judge was entitled to give the doctor’s letter little weight in her application of the test of whether reasonable care is available.
29. I find no error in the Judge’s consideration of the rules. As the Judge directed herself at [14], where the rules are not met, the public interest normally lies in refusing leave to enter. The Respondent did not dispute the existence of family life engaging Article 8 notwithstanding the fact that Article 8 will not always be engaged whenever a United Kingdom citizen wishes to bring an elderly parent to the United Kingdom to look after them: BritCits, at [61].
30. I do find the Judge’s application of a test of exceptionality at [55] inconsistent with a correct application of the law, as explained in cases such as Rai v ECO, New Delhi [2017] EWCA Civ 320 and Mobeen v SSHD [2021] EWCA Civ 886. Ground (a) is made out. The Judge appeared to be on the right track in the preceding paragraph, where she set out the test for family life between adults in terms which suggests she had in mind the case of Kugathas v SSHD [2003] EWCA Civ 31. Subsequent cases have suggested Kugathas was wrong to imply a need to show exceptional circumstances and that is what the Judge appears to have done at [55].
31. However, I disagree with ground (b) and agree with Mr Hulme that the error is immaterial. The judge was entitled to find the decision was proportionate and that preponderant weight had to be given to the public interest in maintaining immigration controls for the reasons she gave. At [59] the Judge appears to be conflating the test in Kugathas, which sets out the parameters of what might be classed as family life so as to engage Article 8, with the balancing exercise. However, she was right to give significant weight to the factors set out in section 117B of the Nationality, Immigration and Asylum Act 2002. It is difficult to see how any other conclusion could have been reached.
32. Mr Pipe’s attack focused on the absence in the Article 8 analysis of any reference to the sponsor’s cancer diagnosis and treatment, which impacts on the family unit as a whole. I accept it does. However, having already shown that she had taken into account the sponsor’s health in her consideration of family life at [55], there was no requirement for the Judge to show that she had taken this into account when conducting the balancing exercise. To put it another way, she must have had this in mind. I do not accept therefore that the Judge had closed her mind to this consideration or its impact on the Appellant.
Notice of Decision
The making of the decision of the First-tier Tribunal did not involve the making of an error on a point of law and the decision of the First-tier Tribunal dismissing the Appellant’s appeal shall stand.

Signed
N Froom

Deputy Judge of the Upper Tribunal
Immigration and Asylum Chamber

Dated 22 October 2025