Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER Case No: UI-2025-004169
First-tier Tribunal No: HU/63313/2023
LH/07875/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On 9th March 2026

Before

UPPER TRIBUNAL JUDGE KAMARA

Between

YO MAYA GURUNG
(NO ANONYMITY ORDER MADE)
Appellant
and

The Entry Clearance Officer
Respondent

Representation:
For the Appellant: Ms K McCarthy, counsel instructed by Everest Law Solicitors Limited
For the Respondent: Ms A Everett, Senior Home Office Presenting Officer

Heard at Field House on 3 March 2026

DECISION AND REASONS
Introduction
1. Following an error of law hearing which took place on 6 November 2025, the First-tier Tribunal decision dismissing the appellant’s appeal was set aside with no preserved findings. The appeal was retained in the Upper Tribunal for remaking.
Anonymity
2. The First-tier Tribunal did not issue an anonymity order. I take into account the principle of open justice and see no reason to make an order, so none is made.

Factual Background
3. The appellant is a national of Nepal born in 1982. On 12 September 2023 she made a human rights application for leave to enter the United Kingdom as the adult child of a widow of a Gurkha discharged from service prior to 1 July 1997. The appellant’s father was granted settlement in the United Kingdom during 2012 but has since died.
4. That application was refused in a decision dated 23 October 2023. The reasons provided included that the appellant was unable to meet the requirements of the Immigration Rules relating to dependent relatives of former Gurkhas or more generally. As she could not meet the terms of any discretionary arrangements, the respondent considered it as a human rights application. The respondent stated that only ‘limited’ documentation of financial and emotional dependence had been submitted which did not demonstrate that she was financially and emotionally dependent upon her mother beyond that normally expected between a parent and adult child. The following extract of the decision encapsulates the respondent’s view of the appellant’s Article 8 claim:
You have grown up in Nepal. I am mindful that the adult children of the widow of a former Gurkha do not automatically qualify for settlement. There is no bar to your mother returning to Nepal either permanently or temporarily. Even if I am to accept that refusal may be an interference with private life, I am not satisfied that you have established family life with your parents over and above that between an adult child and his parent(s) or that you have demonstrated "real" or "committed" or "effective" support from you.
5. It was not, therefore, accepted by the respondent that Article 8 was engaged. Alternatively, it was considered that the decision to refuse entry clearance was justified and proportionate.
The remaking hearing
6. The matter comes before the Upper Tribunal to re-determine the appellant’s appeal against the decision refusing entry clearance.
7. A 164-page bundle of evidence was submitted by the appellant in advance of the hearing. The respondent’s evidence is contained in a composite bundle of 159 pages which was produced for the error of law hearing.
8. I heard oral evidence from the appellant’s mother, Mrs Lachhi Gurung and her sister, Ms Sima Gurung. The hearing was attended by representatives for both parties as above. Both representatives made submissions and the conclusions below reflect those arguments and submissions where necessary.
9. At the end of the hearing, I allowed the appeal and provide my reasons below.
Discussion
10. In remaking this appeal, I have taken into consideration all the evidence before me, including that contained in the appellant’s 164-page bundle of evidence as well as the respondent’s bundle which was before the First-tier Tribunal.
11. There were no concerns raised on the respondent’s behalf as to the credibility of the witnesses. I am satisfied that they provided an honest account of the family circumstances, giving their evidence without hesitation and consistently with their witness statements. Nor was any issue taken with any aspect of the evidence adduced on the appellant’s behalf.
12. Ms Everett relied upon the decision of 23 October 2023 as well as the respondent’s review dated 4 November 2024. In the latter document, it was acknowledged, at paragraphs 12-13 of that document that there was evidence of financial support as well as call logs provided showing contact between the appellant and her mother.
13. The principal issue in dispute was, therefore, whether the evidence showed a ‘strong’ engagement with Article 8 going beyond a normal relationship between an adult child and their parent. Ms Everett developed this further during her own submissions, when she argued that the appellant had not established a family life with her mother, despite being very attached to her. She suggested that had the appellant’s mother not asked her to look after the family home in the village, the appellant would be with her adult children who are studying in Kathmandu and that would be her principal family unit.
14. The approach to Article 8(1) family life among adults was revisited in IA & Ors [2025] EWCA Civ 1516. Relevant to this case is the following passage from {10} where the judgment states:
First, the consistent jurisprudence of the European Court of Human Rights (the ECtHR) has been that “family life for the purpose of Article 8 … is normally limited to the core family and that there will be no family life between parents and adult children or adult siblings unless they can demonstrate “additional elements of dependence, involving more than the normal emotional ties”” (see Kumari v. The Netherlands 44051/20, 10 December 2024 (Kumari) at [35], and Beoku-Betts v. SSHD [2008] UKHL 39, [2009] 1 AC 115 (Beoku-Betts) at [39]). The FTT did not apply that test, but instead asked itself whether the sponsor had provided “real, effective or committed support” to his brother and the family (see [18] and [25] of the FTT decision). The real, effective or committed support test is lower than the additional elements of dependence test.
15. I have further considered the earlier authorities, including what was said in Gurung [2013] EWCA Civ 8, at [45]: “Ultimately, the question whether an individual enjoys family life is one of fact and depends on a careful consideration of all the relevant facts of the particular case.”
16. The relevant question was whether there existed a degree of dependency over and above that which would be expected in a normal family. I accept that the appellant is and has been since her separation from her husband in 2007 as well as her divorce from her husband in 2021, accommodated by and wholly financially and emotionally supported by her parents and more recently, the sponsor. The appellant is uneducated and without work experience. She currently takes care of the family home and vegetable garden in the village. Her mother sends her money and sends money to the appellant’s adult children in Kathmandu to help cover their costs.
17. I accept that this support, which is not disputed, is effective to take care of the appellant’s financial needs. I further find and, again this is not disputed, that there is frequent telephone contact between the appellant and her mother, in which they provide emotional support to one another. There was no evidence to suggest that the appellant would be in Kathmandu with her children were it not for this appeal. The undisputed evidence was that the children are living with her sister Sima’s in-laws in Kathmandu and that the appellant could not also reside there. In addition, her mother’s evidence was that she had asked the appellant to look after the home and vegetable patch and while she had wondered if the appellant would rather be in Kathmandu, she did not know what the appellant’s view was of this.
18. I accept that emotional and support by themselves are insufficient to conclude that there is a qualifying family life. The following matters elevate this case to one which involves elements of family life which are over and above what could normally be expected between an adult child and a parent.
19. The appellant, in contrast to her four older married siblings was in an unhappy marriage, in that she was subjected to violence owing to giving birth to only daughters as well as her husband being an alcoholic. That marriage broke down in 2007 after the birth of the final daughter. The witness statements of the family show that the appellant’s parents intervened to prevent her from returning to her husband and provided her with a home as well as financial and emotional support thereafter. For cultural reasons, involving stigma, the appellant and her husband did not divorce until 2021, however I am satisfied that the appellant re-established a family life with her parents from around 2007 onwards.
20. There is also the relevance of the personal care the appellant provided for her father who chose to return to Nepal after his cancer diagnosis rather than to remain in the United Kingdom for medical treatment. That care was provided by the appellant over a protracted period before her father died during 2022. I am satisfied that this provides further evidence of mutual dependency beyond what could be expected in a normal loving family. The sponsor is concerned for the appellant’s welfare and has frequently returned to the village to spend time with her while her application and appeal has been pending.
21. In considering the issue of proportionality, I am required to have regard to the matters set out in section 117B of the 2002 Act, as amended. Those matters being that the maintenance of effective immigration control is in the public interest. There are no concerns with the appellant’s conduct in this regard, in that she has made the appropriate paid-for application for entry clearance. The appellant does not speak English which is not a factor in her favour. She is financially supported and accommodated by her mother following the death of her father. Nonetheless this is a neutral factor.
22. I acknowledge the issue of historic injustice and have considered the findings in Ghising [2013] UKUT 567 (IAC). I accept that the fact that an adult child has been prevented from following their parents due to an historic injustice is a relevant factor in the proportionality exercise.
23. I am also bound by what was said at {20} of Pun [2017] EWCA Civ 2016:
The critical feature for the right to rely on the historic injustice is dependency. ..Both the FTT and the Upper Tribunal…have found that there is no dependency and that, to our mind, prevents the historic injustice from having the same considerable weight it must have for adults dependent on their parents at the time when the application is made.”
24. In the appellant’s case, the unchallenged evidence is that the appellant is emotionally and financially dependent on the sponsor and was so at the time of the application. Documentary evidence of that dependency has been provided along with a consistent, coherent account provided by the appellant’s mother as well as the appellant’s sister.
25. It is relevant that the sponsor would, most likely, have settled in the United Kingdom earlier were it not for the historic injustice and the appellant would have been born here and been a British citizen. Given the foregoing findings, I have attached considerable weight to the historic injustice issue. It is not contended on the respondent’s behalf that there are any considerations beyond the ordinary interests of immigration control to weigh against the historic injustice.
26. I conclude that considering all the evidence and submissions heard, that the appellant’s circumstances are, and it is a finely balanced decision, sufficiently compelling to outweigh the public interest considerations applicable in this case.
27. In conclusion, the respondent’s decision to refuse the appellant entry clearance was disproportionate given the circumstances.

Notice of Decision
The appeal is allowed.

T Kamara

Judge of the Upper Tribunal
Immigration and Asylum Chamber

4 March 2026

TO THE RESPONDENT
FEE AWARD
As I have allowed the appeal and because a fee has been paid or is payable, I have considered making a fee award and have decided to make a whole fee award of any fee which has been paid or may be payable (adjusted where full award not justified) for the following reason. The appeal has been allowed on substantially the same evidence as was before the respondent.

T Kamara

Judge of the Upper Tribunal
Immigration and Asylum Chamber

4 March 2026