Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2025-003188

First-tier Tribunal No: HU/51536/2024
LH/00386/2025

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On 12th November 2025

Before

DEPUTY UPPER TRIBUNAL JUDGE HARRIS

Between

CHANDRA MAY GURUNG
Appellant
and

ENTRY CLEARANCE OFFICER
Respondent

Representation:
For the Appellant: Ms McCarthy of Counsel
For the Respondent: Mr Tyrell, Senior Home Office Presenting Officer

Heard at Field House on 30 October 2025

DECISION AND REASONS
1. The appellant is a citizen of Nepal. She appeals with permission against the decision dated 22 May 2025 of First-tier Tribunal Judge J P Howard (“the FTTJ”) to dismiss her appeal on human rights grounds.
2. The basis of the appellant’s claim is that she is the adult dependent daughter-in-law of a former member of the Brigade of Gurkhas, the sponsor Mr Narkaji Gurung. She accepts that she cannot succeed under the Immigration Rules but does argue that the refusal of entry clearance to her is a disproportionate interference with her right to respect for family life under Article 8.
3. The respondent disputes that the appellant demonstrates she has family life under Article 8 with the sponsor and that, if there is such family life, it is disproportionate to refuse the appellant entry clearance.
4. The FFTJ agreed with the respondent when dismissing the appeal.
5. This appeal comes before me to decide whether there is an error of law in the decision of the First-tier Tribunal. If I determine that the First-tier Tribunal decision does contain an error of law, I need then to decide whether to set aside the decision. If I set aside the decision, I must then decide whether this Tribunal should remake the decision or whether I should remit the appeal to the First-tier Tribunal to do so.
Application to amend grounds of appeal
6. At the hearing before me Ms McCarthy, in the course of replying to the submissions of the respondent, applied to amend the permitted grounds of appeal to add a ground challenging the lawfulness of the adverse credibility findings made by the FTTJ at paragraphs 45 to 47 of the decision. Ms McCarthy submitted the application was made in response to the submission of the respondent that, even if the FTTJ had erred regarding findings made about Article 8(1), by considering matters in the alternative as regards proportionality, any error of law was not material and requiring the decision be set aside. The application was opposed by Mr Tyrell as being too late and unfair to the respondent.
7. It is the First-tier Tribunal which granted permission to appeal to the appellant.
8. Clearly, an application to this Tribunal to permit the arguing of amended grounds of appeal, which is made during a reply by the appellant, is very late in proceedings. I am not persuaded by the justification offered by the appellant that the application was necessitated by arguments raised in submissions by the respondent. I consider that if a ground of appeal is to have merit, the merit should stand alone and not be dependent on submissions made at an error of law hearing. The appellant has had considerable opportunity before the hearing to make the application and put the respondent on notice of the argument. This Tribunal is entitled to expect procedural rigour from the parties. Accordingly, I refuse the application on the basis that it is not in the interests of justice to grant it.
Discussion of existing grounds of appeal
9. I turn to the points raised in the grounds of appeal given permission by the First-tier Tribunal. There is in fact only one ground raised. This focuses on the findings made by the FTTJ under Article 8(1) regarding whether or not the appellant demonstrated there was family life between her and the sponsor with which the respondent’s refusal of entry clearance has interfered.
10. The respondent acknowledges, rightly in my view, that the FTTJ gives a contradictory finding at paragraph 57 of the decision by finding Article 8(1) is engaged in the appeal because of there being family life between the appellant and her parents-in-law. This is despite the previous findings at paragraphs 43 to 55 of the decision about the lack of sufficient reliable evidence as regards claimed support by the sponsor of the appellant.
11. The contradiction is compounded by the express finding which ends paragraph 57 of the decision that the FTTJ is not satisfied that the ties that do exist go beyond normal emotional ties.
12. The tests of whether there are more than normal emotional ties between adult relatives and whether there is real, effective or committed support come, of course, from the long established authority of Kugathas [2003] EWCA Civ 31. The context for these tests is the Court of Appeal holding that generally, the protection of family life under Article 8 involves cohabiting dependents, such as parents and their dependent, minor children. Whether it extends to other relationships depends on the circumstances of the particular case.
13. The FTTJ does not explain how Article 8(1) is engaged if the established tests for demonstrating the existence of family life for the purposes of Article 8, which are referred to in the reasoning of the decision, are not met.
14. The respondent also accepts, again rightly in my view, that the FTTJ applies the wrong test in law in paragraphs 43 to 55 of the decision by requiring the appellant to demonstrate there is support which is real, effective and committed. To reiterate, the correct test is whether support is real, effective or committed.
15. One submission of the respondent has been that even if the judge applied the wrong test in paragraphs 43 to 55 of the decision, the actual findings of fact have not been challenged and support a negative finding if the proper test is applied. In short, if the FTTJ has made an error of law, it is not a material one. However, I consider that even if this submission is correct it does not address the problem of the FTTJ going on in Paragraph 57 to find Article 8(1) is engaged in the appellant’s case because of family life notwithstanding the adverse findings in paragraphs 43 to 55 and the finding in paragraph 57 that there is a lack of more than normal emotional ties.
16. The appellant is entitled to a decision that can be understood in terms of the applicable law.
17. The respondent’s primary argument is that, even accepting that the FTTJ does err in law regarding the findings under Article 8(1), the error is not a material one because of the proportionality assessment the FTTJ carries out at paragraphs 58 to 75 of the decision. The respondent particularly takes issue with the assertion made at paragraph 10 of the grounds of appeal that in historic injustice cases such as this, if the appellant established there was family life, then the appeal should have succeeded.
18. Here I remind myself of what was said by the Court of Appeal in the leading case of R(Gurung) [2013] EWCA Civ 8 at paragraph 41, when commenting about the nature of the historic injustice in respect of settlement suffered by the Gurkhas (in comparison to that elsewhere found to have been suffered by British Overseas Citizens):
The crucial point is that there was an historic injustice in both cases, the consequences of which was that members of both groups were prevented from settling in the UK. That is why the historic injustice is such an important factor to be taken into account in the balancing exercise and why the applicant dependent child of a Ghurkha who is settle in the UK has such a strong claim to have his article 8(1) right vindicated, notwithstanding the potency of the countervailing public interest in the maintaining of a firm immigration policy.
19. The respondent correctly points out that a distinctive feature of this case, relevant to assessing the effect, if any, of historic injustice, is that the appellant is not the direct descendant of the sponsor but the daughter in law.
20. At the core of Mr Tyrell’s submission here is that it cannot simply be said that the historic injustice which prevented the sponsor settling in the UK upon his discharge has consequently prevented the appellant being settled in this country as part of his family. Even accepting the notional birth and settlement in this country of the appellant’s late husband, the appellant’s settlement in this country was not automatic but would have been contingent upon the appellant also satisfying existing entry clearance requirements including financial requirements. The respondent draws attention to what is said at paragraph 24 of the appellant’s skeleton argument before the FTTJ as implicit acknowledgment of this.
21. The skeleton argument of the appellant before the FTTJ is indeed more nuanced than the grounds of appeal to this Tribunal in its submissions about the effect of historic injustice on the appellant’s case: see paragraphs 24 and 25 of the skeleton argument. It would appear looking at paragraph 63 of the FTTJ’s decision that Counsel representing the appellant before the FTTJ made submissions in line with paragraphs 24 and 25 of the skeleton argument: firstly, a determinative consequence of the historic injustice was that the sponsor as well as the appellant’s late husband were denied the opportunity of the appellant becoming part of the family settled in the UK; secondly, even if the historic justice is not determinative, the historic injustice has denied to the sponsor and his wife the opportunity to live with their son in the UK during his life time and this reduces the strength of the public interest in denying entry clearance to their son’s wife, the appellant, whose relationship with them is like that of a daughter.
22. Looking at the decision, the respondent is able to point out that the FTTJ at paragraph 63 expressly considers the issue of historic injustice as part of the reasoning for finding the refusal of entry clearance to the appellant to be proportionate. The FTTJ also expressly attaches significance to the factor of the appellant’s late husband having to demonstrate sufficient income to sponsor the appellant coming to the UK.
23. However, rather than reject outright that the matter of historic injustice has any weight at all in the appellant’s particular circumstances because of the contingency of meeting notional financial requirements for settlement in the UK as the wife of the sponsor’s son, the FTTJ “takes account” of the submission made by the appellant without explaining on what basis. I consider a clear explanation is required at this point because the arguments made at paragraphs 24 and 25 of the skeleton argument are based on family life said to be now existing between the appellant and sponsor and expressly address the contingency issue.
24. I observe that the FTTJ does not say that the proportionality assessment is being undertaken in the alternative by taking the appellant’s case at its fullest. Rather, it appears that the factors which the FTTJ weighs up in the proportionality assessment are based on the earlier findings regarding the circumstances of the appellant, including any family life with the sponsor and his wife.
25. I note that, as confirmed before me by Mr Tyrell, the respondent does not argue that the appellant’s case is bound to fail under Article 8, even if the facts are taken at the highest.
Conclusion
26. In the circumstances, I consider the problematic findings at paragraph 57 of the FTTJ’s decision continue to have an effect at the proportionality stage of the Article 8 assessment. Accordingly, I am not persuaded by the argument of Mr Tyrell that the FTTJ’s error of law under Article 8(1) is not a material one.
27. That said, I observe that, to some extent, it could be asked what is the appellant to complain about if, despite the FTTJ rejecting many parts of her case, to the apparent good fortune of the appellant, the FTTJ nevertheless treats Article 8(1) as engaged and goes on to consider the next disputed issue, that of proportionality.
28. Yet, bearing in mind what is said in the case law, I consider this is a case requiring there to be clear findings made on the nature of the relationship between the appellant and sponsor and, if there is Article 8(1) family life, precisely on what basis. This is because such findings are relevant to not just to the issue of whether Article 8(1) is engaged in this case but also to the assessment of proportionality. Such clarity is lacking in the decision of the FTTJ and makes me conclude that the error of law made by the FTTJ regarding whether or not Article 8(1) is engaged permeates the rest of the decision.
29. Accordingly, I find that the FTTJ has made a material error of law requiring the decision of the FTTJ to be set aside.
30. The normal course of action is for the Upper Tribunal to remake the decision even if it requires further findings of fact to be made on the evidence. However, given that fresh findings will need to be made in relation to the fundamental issue concerning the extent, if at all, there is family life between the appellant and sponsor within the meaning of Article 8(1), I find that the appropriate course of action is to remit the appeal to the First-tier Tribunal for a fresh hearing

Notice of Decision
The decision dated 22 May 2025 of First-tier Tribunal Judge J P Howard contains a material error of law. I set aside that decision and direct that the appeal be remitted to the First-tier Tribunal for a fresh hearing before any judge except for Judge J P Howard.

M Harris

Deputy Judge of the Upper Tribunal
Immigration and Asylum Chamber

7 November 2025