Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER Case No: UI-2026-001135
UI-2026-001137
First-tier Tribunal No: HU/61707/2023 HU/61709/2023

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On 24 August 2026

Before

UPPER TRIBUNAL JUDGE KAMARA

Between

KABITA RAI BAL
BAL CHANDRA RAI
(NO ANONYMITY ORDER MADE)
Appellant
and

Entry Clearance Officer
Respondent

Representation:
For the Appellant: Mr M Kashif, partner, Bond Adams LLP Solicitors
For the Respondent: Ms A Nolan, Senior Home Office Presenting Officer

Heard at Field House on 10 August 2026

DECISION AND REASONS
Introduction
1. The appellants have been granted permission to appeal the decision of the First-tier Tribunal dismissing their human rights appeals following a hearing which took place on 22 December 2025.
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 appellants are nationals of Nepal and siblings aged in their forties. They sought entry clearance as the adult dependent children of the widow of a former Gurkha soldier discharged prior to 1 July 1997, with reference to Appendix ADR of the Immigration Rules, as well as Article 8 ECHR. Those applications were refused by way of decisions dated 4 September 2023. In summary, in the decision letters, the respondent noted that the discretionary arrangements for adult children of a former Gurkha did not apply the children of widows. It was noted that the appellants’ father passed away on 1 January 1997 and that he was not in the process of being granted settlement under an earlier concession. The respondent also noted that the second appellant was not named on the former Gurkha’s kindred roll until 22 years after the latter’s death; that their mother declared no dependent children when she sought settlement in 2015, and it was therefore not accepted that the second appellant had demonstrated that he was the child of a former Gurkha soldier. The decisions noted that the appellants were both too old to meet the eligibility requirements in the discretionary policy. In relation to the second appellant, it was noted that he was previously resident and employed in Kuwait between 2015 and 2022. The respondent considered that there was insufficient evidence to demonstrate that the provisions of Appendix ADR were met or that there was family life between the appellants and their sponsor.
The decision of the First-tier Tribunal
4. Following the hearing before the First-tier Tribunal, the judge concluded that Article 8(1) was not engaged. An alternative finding was made that the refusal of entry clearance was justified and proportionate.
The appeal to the Upper Tribunal
5. The grounds of appeal can be summarised as follows.
Ground one: There was a failure to give adequate reasons since the judge accepted that the appellants were in receipt of financial support by the sponsor, applying Rai [2017] EWCA Civ 320.
Ground two: misdirection by conflating engagement with proportionality and in applying the dependency test from IA rather than Rai.
6. Permission to appeal was granted on the basis sought, with the judge granting permission making the following remarks:
I am satisfied that each ground is arguable. In particular, it is arguable that the findings of emotional and financial support not being sufficient to establish family life are inadequately reasoned. It is also arguable that the Judge erred at [55] and that the consideration taken into account there is contrary to the guidance of the Court of Appeal in Rai, as argued under Ground 2. It does not appear that the ‘but for’ test has been assessed, arguably relevant in claimed historic injustice cases.
The Appellants will likely need to review the submissions made so as to adequately address IA v SSHD as the grounds as pleaded are lacking in this respect.
7. The respondent filed a Rule 24 response dated 19 May 2026, in which the appeal was opposed, with detailed comments being made.
The error of law hearing
8. The matter comes before the Upper Tribunal to determine whether the decision contains an error of law and, if it is so concluded, to either re-make the decision or remit the appeal to the First-tier Tribunal to do so. A bundle was submitted by the appellant containing, inter alia, the core documents in the appeal, including the appellant’s and respondent’s bundles before the First-tier Tribunal.
9. 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. I would add that Mr Kashif sought to rely on the judgment in Ali [2024] EWCA Civ 372 but was unable to coherently explain its relevance to these proceedings.
Discussion
Ground one:
10. It is argued on the appellants’ behalf that there has been a failure by the judge to apply the correct legal test or provide adequate reasons as to why Article 8 was not engaged.
11. In relation to the legal test, the judge directed themselves correctly, with reference to the relevant authorities including IA [2025] EWCA 1516. Furthermore, the judge’s approach was consistent with the Upper Tribunal’s decision in Gurung & Others (Gurkhas; historic injustice; Article 8) [2026] UKUT 191(IAC). Mr Kashif made a passing mention of a new argument his firm were running to the effect that Gurung & Others had been wrongly decided and that the issue of historic injustice should be considered under Article 8(1) as opposed to 8(2). Mr Kashif informed me that this argument had recently been made before a presidential panel in the case of UI-2026-001288. As these arguments were not made before the First-tier Tribunal in the instant case, not mentioned in the grounds and there was no application to amend the grounds, I shall say no more about them.
12. As for the reasons provided by the judge, they were detailed and sustainable and adequately explained the judge’s conclusion that Article 8 was not engaged. At [34], the judge notes that there are discrepancies between the accounts given by the appellants in the visa applications and the sponsor in her own application as to the address of the family home, noting that “No documentary evidence was produced to clarify or reconcile those discrepancies. “
13. At [35], the judge records that neither appellant has a medical condition or disability and that both undertake occasional manual labour in Nepal. The judge also raised concerns with the inability of the sponsor to quantify how often the appellants worked, how many weeks or months they worked in a year, or their income.
14. At [36], the judge noted that the second appellant lived and worked in Kuwait for seven years until 2022 and that there was ‘no documentary evidence’ as to the nature or frequency of contact between the second appellant and sponsor during the period he was in Kuwait.
15. The grounds emphasise the judge’s acceptance of the financial assistance provided by the sponsor to the appellants. This evidence is addressed by the judge at [37], where it is found that between approximately £50 and £150, is sent monthly or every two months. The judge accepted that these remittances contributed to the appellants’ subsistence. Nonetheless, the judge declined to accept that the evidence establishes that the appellants had no other means of support or that the sponsor.
16. As for the contact between the appellants and the sponsor, this was considered by the judge at [38]. The judge accepted that there was ongoing contact between the sponsor and the appellants but owing to the call records showing unanswered calls, the judge was not satisfied that the frequency and regularity of contact claimed by the sponsor could be determined from the evidence. In terms of visits, the judge noted the absence of supporting evidence that the sponsor had seen the appellants during her three visits to Nepal.
17. There was no challenge in the grounds nor in oral argument as to any of the judge’s discrete findings regarding the discrepancies, the omissions in or the nature of the evidence before the Tribunal.
18. The judge’s summary of the claimed family life can be found between [43-48], in which the judge considered the earlier findings at [31-41] cumulatively. In summary he concluded that the appellants are in regular contact with the sponsor, that there is affection and that the sponsor provides “some” financial assistance. The judge concluded that “emotional closeness and financial assistance, without more, are not sufficient to establish family life for the purposes of Article 8.” Those findings were more than adequate and ones which were entirely open to the judge on the evidence adduced.
19. Given that there was no error in approach by the judge in relation to whether Article 8 is engaged, this is dispositive of this appeal. However, I will consider the second ground for completeness.
Ground two:
20. This ground covers similar ground to the first ground, in that it is contended that the judge misdirected themselves in applying the dependency test from IA rather than Rai. On the latter point, the Court of Appeal in IA specifically considered Rai at paragraphs 75-77, noting that the approach in Rai lost sight of the ECtHR and domestic authorities which stated that the test was “additional elements of dependency.” It follows that the judge committed no error as to the correct test to be applied.
21. Addressing a second contention in ground two, there is no indication that the judge misunderstood or conflated the separate stages involved in an Article 8 assessment. The judge’s findings in relation to Article 8(2) was more of a belt and braces assessment in case the judge was wrong as to Article 8(1) not being engaged.
22. The grant of permission focuses on the issue of historic injustice and indeed Mr Kashif argued that the judge had failed to give this matter “appropriate” weight. There is no substance to that argument.
23. At [53-55], the judge addressed their mind to the issue of historic injustice, recognising that this “is” a weighty factor. At [55], the judge considered this matter on the basis that Article 8 was engaged. He concluded that this was a case where the appellants could not show that they would necessarily have settled in the United Kingdom as part of the family unit at an earlier stage, “but for” the historic injustice. The judge was cognisant of the fact that the appellants were born after their father’s discharge from the Brigade of Gurkhas, that their father died in 1997 and that he had not embarked upon a settlement application. Given those facts, the judge made no error in reaching the conclusion they did. That approach was also wholly in accordance with headnote 2 of Gurung & Others, as to the need to consider whether there is a causal connection between the historic injustice and an appellant’s circumstances.
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.
The decision of the First-tier Tribunal shall stand.

T Kamara

Judge of the Upper Tribunal
Immigration and Asylum Chamber

10 August 2026