Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER Case No: UI-2025-004559
First-tier Tribunal No: HU/54646/2024
LH/01625/2025

THE IMMIGRATION ACTS

Decision & Reasons Issued:

On 26th of March 2026

Before

UPPER TRIBUNAL JUDGE NEVILLE

Between

MIKI DIHANG SAMBAHAMPHE
(NO ANONYMITY ORDER MADE)
Appellant
and

ENTRY CLEARANCE OFFICER
Respondent

Representation:
For the Appellant: Mr R Jesurum, counsel
For the Respondent: Mr K Ojo, Senior Presenting Officer

Heard at Field House on 19 January 2026

DECISION AND REASONS
1. The appellant is a national of Nepal who applied for entry clearance as the child of a person with leave to remain in the United Kingdom. His mother lives in the UK but he has remained in Nepal, living with his paternal grandmother. The entry clearance officer decided that the appellant did not meet the requirement in the Immigration Rules that his parent “had and continues to have sole responsibility for [his] upbringing”. The following reasons were given:
…to meet the requirements of the Immigration Rules, you need to demonstrate that your mother [provides] you with all the emotional, financial, and other needs which you may and do have and that she can and does exercise full control over the major aspects of your life, such as schooling, religion, medical care etc. You have provided no evidence which shows that your mother has had day-to-day responsibility for you. You have not stated how often you see your mother or when you last saw her. You have provided no reason as to why you wish to join your mother at this stage and no evidence of your current care arrangements in Nepal. You state that your mother and your father are divorced but have provided no details or evidence of your father's current whereabouts, or the role he plays in your upbringing. I am therefore not satisfied that your sponsor has had sole responsibility for your upbringing.
2. The application was refused and the appellant appealed to the First-tier Tribunal (FtT), where a Judge had to decide the same issue. The Judge disbelieved the appellant’s mother, and in her reasons explained why:
17. I asked her why she had left behind her child in Nepal instead of bringing him with her to the United Kingdom. She answered that it was because she had no support from the father of her child. She offered further evidence by stating that she made the entry clearance application to come to the United Kingdom through her mother. I then asked whether she had declared her child on the entry clearance application.
18. […] I considered that it was relevant to find out why she had left her child behind in Nepal. It was relevant in the context of sole responsibility; whether she had relinquished her responsibility to him by leaving him in Nepal after her divorce and why she stated in her entry clearance application that she was single failing to mention that she had a child.
[…]
39. […] She gave evidence that she came to the United Kingdom in March 2020 because she had indefinite leave to remain. [It was] confirmed that she obtained indefinite leave to remain because she is the daughter of a former Gurkha soldier. She initially stated in cross-examination that she did not bring her child with her because she was stressed.
40. However, later in her evidence, she said that the entry clearance application was made through her mother and that she did not know if in the application she declared her child. She went on to state that the agency, who helped make the application came to her home. She said that she was never asked about whether she had a child and therefore she did not know if it was declared in the application. She also said she does not know anything.
41. I do not find her a credible witness. She applied for settlement as an adult dependent child of a former Ghurkha soldier who was not leading an independent life. I find that the reason she did not declare her child in the entry clearance application is because she stated that she was single and did not want to reveal that she had a dependent child. It is unclear whether she declared either of her marriages. I find that she chose to leave her child behind in Nepal to be cared for by his paternal grandmother.
3. The Judge also explained why the other evidence relied upon was not sufficiently reliable to prove sole responsibility.
4. Permission to appeal was granted on a single ground, the arguments under which can be summarised as follows:
a. The Judge assumed that the appellant’s mother’s 2018 immigration application would have required her to declare that she had a child;
b. This was a mistake – the form in use at the time only asked for the details of any dependent children;
c. That distinction was never appreciated or explored at the hearing; no one had a copy of the form because the issue was only raised for the first time there and then by the Judge;
d. If the true position had been known, the appellant’s representative could have pointed out that the appellant’s mother claimed at the time to be dependent on her own mother, meaning that so too was her child – she had no dependent children so answered the form correctly;
e. This all amounted was a mistake of fact of the type that stands as an error of law, was material to the result, and the Judge’s decision should be set aside.
5. Evidence was submitted with the grounds to prove that the form had not been before the Judge. In her rule 24 Response, the Secretary of State accepted that the Judge may have made a mistake of fact, but argued that the Judge had given other reasons for rejecting sole responsibility and that the decision should stand. After that, the appellant was able to obtain a copy of the form itself and has provided that too.
6. At the start of the hearing, Mr Ojo confirmed that the Secretary of State had no objection to the appellant relying upon the evidence she had filed, and I granted permission under rule 15(2A).
7. Mr Jesurum, for the appellant, very properly drew my attention to the fact that the Judge had been right to proceed on the basis that the appellant had not been mentioned in the form. Those that came closest to asking about her, however, appeared to be the following:

43 WHAT IS YOUR MARITAL STATUS? SINGLE

DEPENDENT CHILDREN

54 DO YOU HAVE ANY DEPENDENT CHILDREN? NO

NON DEPENDENT CHILDREN

55 ARE ANY OTHER CHILDREN TRAVELLING WITH YOU? NO

PART 8 > ADDITIONAL INFORMATION
ADDITIONAL INFORMATION

79 IS THERE ANY OTHER INFORMATION YOU WISH TO BE CONSIDERED AS PART OF YOUR APPLICATION? I AM ADULT DEPENDENT OF FORMER BRITISH APPLYING UNDER ANNEX K. I AM SOLELY DEPENDENT ON MY MOTHER WHO PAYS MY WHOLE BILLS INCLUDING FOOD. I AM UNMARRIED AND EMOTIONALLY DEPENDENT ON MY MOTHER.
8. Mr Jesurum addressed each in turn: the appellant’s mother was single in the sense that by then she was divorced back in the family home, as had been confirmed in her witness statement adopted before the Judge; both she and the appellant were dependent on her mother, so she had no dependent children; no other children were travelling with her; and the final question only asked for further information upon which the applicant positively relied. In proceeding on the basis that the form required the existence of the appellant to be declared, the Judge committed a mistake of fact.
9. Mr Ojo argued that the concealment of a child and a previous marriage were reasonable inferences from the Judge to draw from the surrounding evidence. While I agree that drawing such an inference might well fall within the range of rational responses to the evidence overall, I disagree that this is why the Judge drew it here. In response to the appellant’s counsel (not Mr Jesurum) having objected to the Judge asking questions on the subject, her reasons explain its relevance to her decision:
18. […] I told him that his objection would be noted and that I disagreed. I considered that it was relevant to find out why she had left her child behind in Nepal. It was relevant in the context of sole responsibility; whether she had relinquished her responsibility to him by leaving him in Nepal after her divorce and why she stated in her entry clearance application that she was single failing to mention that she had a child.
10. The evidence now relied upon shows that the Judge did not have the form and did not appreciate that the question comes with the qualifier ‘dependent’. Her use of the word ‘failing’ is likely, reading the decision as a whole, to connote a failure to comply with an obligation. I therefore agree that the Judge drew an adverse inference based on the appellant’s mother having been required to mention the appellant in the form but failing to do so.
11. Mr Ojo responded by adopting the arguments in the rule 24 Response, which points out that whether responsibility is shared or sole is a “fact rich” issue: see TD (Paragraph 297(i)(e): “sole responsibility”) Yemen [2006] UKAIT 49 at [51]. While I accept that the Judge gave other reasons for doubting the appellant’s mother’s evidence, she quite properly adopted a holistic evaluation to the evidence in which the conclusion concerning completion of the form made a material contribution. Her rejection of the evidence cannot stand.
12. As the outcome of the decision rested on those findings, it must be set aside. The representatives submitted that in those circumstances the extent of fact-finding required is such that the correct disposal is to remit the case to the First-tier Tribunal to be re-heard. I agree; moreover, it would be unfair in the circumstances to deprive the appellant of the two-tier appellate structure by retaining the appeal in the Upper Tribunal.
Notice of Decision
(i) The decision of the First-tier Tribunal involved the making of an error of law and is set aside.
(ii) The case is remitted to the First-tier Tribunal for re-hearing with no facts preserved, to be heard by a different judge.

J Neville
Judge of the Upper Tribunal
Immigration and Asylum Chamber

23 March 2026