Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER Case No: UI-2026-001765
First-tier Tribunal No: HU/56804/2024
LH/01078/2025

THE IMMIGRATION ACTS

Decision & Reasons Issued:

8th October 2026

Before

UPPER TRIBUNAL JUDGE HOFFMAN

Between

DILLI SER RAI
(NO ANONYMITY ORDER MADE)
Appellant
and

ENTRY CLEARANCE OFFICER
Respondent

Representation:
For the Appellant: Mr J Gazzain of Counsel, instructed by Everest Law Solicitors
For the Respondent: Mr E Terrell, Senior Home Office Presenting Officer

Heard at Field House on 5 October 2026

DECISION AND REASONS
1. The appellant appeals, with permission, against the decision of First-tier Tribunal Judge Aldridge (“the judge”) promulgated on 3 October 2025, dismissing his human rights appeal against the respondent’s decision dated 13 May 2024 refusing him entry clearance to join his mother (“the sponsor”) as her dependent.
Background
2. The appellant is a citizen of Nepal, where he still resides. He was born on 17 December 1974. At the time of the hearing before the First-tier Tribunal, he was married with two adult sons, one of whom lived with the appellant and his wife while the other lived and worked in the Maldives.
3. The appellant’s late father was a member of the Gurkha Brigade. He was discharged in 1977 and passed away in 2006. In 2011, the sponsor was granted settlement in the United Kingdom as his widow. The appellant has three siblings, of whom he is the eldest. His siblings all live in the United Kingdom.
The respondent’s decision
4. On 20 March 2024, the appellant applied for leave to enter the United Kingdom as the child of a former Gurkha or Hong Kong veteran discharged before 1997. His application was refused by the respondent on 13 May 2024. The respondent did not accept that the appellant met the requirements for leave to enter as the child of a former Gurkha under the Immigration Rules because he was unable to demonstrate that he had lived in the household of a veteran for more than two consecutive years prior to application. Furthermore, the respondent was satisfied that the appellant was living an independent family life because he was married.
The appeal to the First-tier Tribunal
5. The appellant appealed to the First-tier Tribunal. At the hearing, the appellant’s representative accepted that the appellant could not meet the requirements of the Immigration Rules. The judge therefore needed only to determine whether the refusal of entry clearance amounted to a disproportionate interference with the appellant’s and sponsor’s right to respect for family life under Article 8 ECHR. The respondent, however, contended that the appellant and the sponsor did not enjoy family life for the purposes of Article 8(1), and therefore no proportionality assessment was required. In dismissing the appeal, the judge found that the evidence of remittances from the sponsor to the appellant, together with the evidence of contact between them, was insufficient to establish the existence of a protected family life.
The appeal to the Upper Tribunal
6. On 22 May 2026, Upper Tribunal Judge Loughran granted the appellant permission to appeal on four grounds:
(1) The judge materially misdirected himself in law by applying the wrong legal test for determining whether the appellant and the sponsor enjoyed a protected family life for the purposes of Article 8(1).
(2) The judge erred by failing to look at the evidence holistically when considering whether Article 8(1) was engaged.
(3) The judge erred by applying a test of necessity when considering whether Article 8(1) was engaged.
(4) The judge misdirected himself with regards to the proportionality assessment under Article 8(2).
7. In a skeleton argument filed with the Tribunal on 22 September 2026, the respondent conceded that the judge had materially erred in his assessment of whether Article 8(1) was engaged. She therefore proposed that the error of law hearing be converted to a remaking hearing.
The hearing
Whether the appeal should be retained or remitted
8. At the outset of the hearing, I invited the parties to make submissions on whether I should proceed to rehear the appeal as a result of the respondent’s concession. Mr Terrell maintained the position set out in the respondent’s skeleton argument, namely that the findings of fact made by the First-tier Tribunal could be preserved and that the task for the Upper Tribunal was simply to apply those findings to the correct legal test for determining whether Article 8(1) was engaged. Mr Terrell accepted that, if Article 8(1) were found to be engaged, that would be dispositive of the appeal in the appellant’s favour. Mr Gazzain, however, submitted that the appeal should be remitted to the First-tier Tribunal on the basis that all of the facts would need to be reconsidered.
9. I was not persuaded by Mr Gazzain’s submission that none of the judge’s findings of fact could be preserved. The grounds of appeal did not expressly challenge any of the judge’s factual findings. Rather, as Mr Terrell correctly observed, the grounds argued that the judge had misapplied the legal test for determining whether Article 8(1) was engaged. I therefore informed the parties that I was satisfied it was unnecessary to depart from the general principle that appeals should ordinarily be retained by the Upper Tribunal for remaking. In the present case, the extent of any further fact-finding required was not such as to justify remittal to the First-tier Tribunal. Moreover, it was difficult to see any advantage to the appellant in remitting the case given the additional delay that would inevitably arise before the appeal could be relisted.
The new evidence
10. I next turned to the question of whether to admit the appellant’s further evidence under rule 15 of the Tribunal Procedure (Upper Tribunal) Rules 2008. Mr Terrell did not object to the appellant relying upon the material contained in Part B of the consolidated hearing bundle, as it had been filed in accordance with the Tribunal’s directions. He did, however, object to the admission of additional evidence that had been filed with the Tribunal on 1 October 2026. Owing to the lateness of its filing, I had not seen that material before the hearing. It also transpired that it had apparently not been served on the respondent at all. Accordingly, Mr Terrell had not seen the documents until Mr Gazzain emailed them to him during the hearing. I therefore granted Mr Terrell a short adjournment to consider the material.
11. I was satisfied that the delay of ten days in filing the evidence was both serious and significant. Furthermore, Mr Gazzain was unable to provide any cogent explanation as to why his instructing solicitors had failed to comply with the Tribunal’s directions. Nevertheless, having considered all the circumstances of the case, including the need to ensure procedural rigour and compliance with the Procedure Rules, the length of the delay, the absence of any satisfactory explanation, the lack of a formal application for an extension of time, and the prejudice caused to the respondent, I decided to admit the evidence pursuant to rule 15(2). I reached that conclusion because the late evidence was brief and consisted of two short witness statements from the appellant and the sponsor. The contents of those statements were relevant to, and to an extent, explanatory of, the additional documentary evidence contained in Part B of the bundle, which had been filed in accordance with the Tribunal’s directions. Excluding the witness statements would likely have resulted in additional matters needing to be explored in evidence-in-chief and cross-examination, thereby prolonging the hearing without any corresponding benefit. In those circumstances, I was satisfied that admitting the material would best further the overriding objective.
Whether to adjourn the remaking hearing to another date
12. Mr Terrell submitted that the Tribunal could proceed directly to the remaking hearing and that there was no need to adjourn the matter. Mr Gazzain, however, applied for an adjournment on the basis that he wished to prepare a skeleton argument and give further consideration to the decision in IA v Secretary of State for the Home Department [2025] 2 WLR 1001.
13. I refused Mr Gazzain’s application for an adjournment. The appellant had been afforded a sufficient opportunity to file a skeleton argument in advance of the hearing. Moreover, IA is a significant and well-known authority which had been handed down several months before the hearing. Judge Loughran had expressly referred to it in her decision granting permission to appeal, and I was not persuaded that any further time was required in order to consider its implications. In reaching my decision, I also took into account the following matters. First, the standard directions provide, at note (v), that there is a presumption that, where the Tribunal concludes that the decision of the First-tier Tribunal is to be set aside for material error of law, the decision will ordinarily be remade at the same hearing. Second, the appellant had been on notice from the respondent’s skeleton argument that the respondent accepted that the First-tier Tribunal had erred in law and was inviting the Tribunal to proceed directly to remaking. Third, the appellant had already served the additional evidence upon which he sought to rely at the remaking hearing. Fourth, the sponsor had attended the hearing and, at the appellant’s solicitors’ request, a Nepali interpreter had been arranged for her at public expense. She was therefore available to give evidence. In those circumstances, I was not satisfied that proceeding with the remaking hearing would cause any unfairness or prejudice to the appellant. On the contrary, it avoided any further delay in the resolution of the appeal.
The remaking hearing
14. Having made my decision to admit the late evidence, Mr Terrell confirmed that he did not need further time to consider the witness statements. He explained that he had read them and was in a position to cross-examine the sponsor.
15. The sponsor adopted her latest witness statement as her evidence-in-chief. She was then cross-examined by Mr Terrell. Mr Gazzain did not have any questions in re-examination. Her evidence is recorded in her written statements and the record of proceedings and is not rehearsed here.
16. I then heard closing submissions from each advocate, which are summarised below in Part B.
17. At the end of the hearing, I reserved my decision.
PART A: ERROR OF LAW
Discussion
18. As already explained, the respondent has conceded that the First-tier Tribunal did make a material error of law. In particular, the respondent notes, and I accept, that the judge erred by applying the test of “real, committed, and effective support” when considering whether the appellant and the sponsor enjoyed family life for the purpose of Article 8(1). As the Court of Appeal has since clarified in the case of IA, the correct test is whether there are “additional elements of dependence, involving more than the normal emotional ties”.
Conclusion
19. I am therefore satisfied that the judge made a material error of law in his decision. The respondent is correct that the grounds of appeal do not challenge any of the judge’s factual findings. I therefore set aside the decision of the First-tier Tribunal but preserve the factual findings. As discussed earlier, I am satisfied that the appeal should be retained by the Upper Tribunal for remaking. My task on remaking will therefore be to apply the preserved facts, as well as my findings in relation to the latest evidence, to the correct legal test for determining whether family life exists for the purposes of Article 8(1). If I am satisfied that Article 8(1) is engaged, that will determine the appeal in the appellant’s favour given Mr Terrell’s concession with respect to proportionality under Article 8(2).
PART B: REMAKING
Submissions
20. For the respondent, Mr Terrell submitted that, applying IA, the appellant had failed to establish the requisite dependency to engage Article 8(1). He relied on the preserved findings of the First-tier Tribunal, in particular the findings that although financial support had been provided, there was insufficient reliable evidence that the appellant was dependent on that support or that his needs had been established. He submitted that the sponsor’s oral evidence was unreliable, pointing to inconsistencies concerning her recent stay in Nepal, the alleged loan used to fund her medical treatment, and the appellant’s relationship with his youngest son. The appellant’s divorce and increased contact with his mother were said to show no more than ordinary family affection and support. The recent remittances, chat logs and further evidence did not materially alter the position. If Article 8(1) was established, however, the respondent accepted that the appeal should succeed under Article 8(2).
21. For the appellant, Mr Gazzain submitted that the Tribunal should assess dependency holistically, taking account of the financial support provided by the sponsor, the regular contact between mother and son, and the sponsor’s recent visit to Nepal. Relying on IA, he argued that dependency need not be exclusive or complete and that the facts were materially different from those in that case. He submitted that the evidence demonstrated a longstanding and consistent pattern of financial support, supplemented by significant emotional support, particularly in light of the appellant’s recent divorce. Any shortcomings in the sponsor’s evidence were attributable to her age and health, and the Tribunal was invited to place limited weight on them. He further submitted that, having regard to the updated evidence and the fact that the assessment falls to be made as at the date of hearing, the Tribunal could depart from the First-tier Tribunal’s earlier findings and conclude that Article 8 family life existed between the appellant and the sponsor.
Findings
22. In reaching my decision below, I have had regard to the cases of IA and Gurung & Others (Gurkhas; historic injustice; Article 8) [2026] UKUT 00191 (IAC).
23. As explained above, the findings of fact made by the First-tier Tribunal are preserved. While those findings remain my starting point, I accept Mr Gazzain’s submission that it remains open to me to depart from them if I am persuaded to do so by the latest evidence. However, I am not satisfied that the latest evidence justifies such a course.
24. According to his first witness statement, in 2001, when the appellant was 24 years old, he sought employment abroad in Malaysia. He returned to Nepal in 2003 but then went back to Malaysia in 2004. He returned to Nepal again in 2006, the same year his father died. The appellant then unsuccessfully attempted pig farming and, in 2010, returned to Malaysia to find work. In 2011, the sponsor moved to the United Kingdom. The appellant did not return to Nepal until 2013. He therefore had extensive periods away from the sponsor. Furthermore, the appellant established his own family unit when he was 21 or 22 years old upon marrying. In 1999, his first son, Chiranjibi Rai, was born, followed by his second son, Raju Rai, in 2000. I am satisfied that by 2001 the appellant had established his own family unit and was living independently abroad for extended periods. Those facts significantly weaken any suggestion that family life with the sponsor simply continued uninterrupted into adulthood. While I accept that the appellant may have re-established some form of family life with the sponsor between 2006 and 2010 when he had returned to Nepal and lived in the same house as her, any such relationship was interrupted once more when he returned to Malaysia.
25. The question, therefore, is whether the appellant and the sponsor have re-established family life since that time.
26. The First-tier Tribunal made unchallenged findings that the family home in which the appellant lives is no longer in the sponsor’s name but in that of the appellant’s brother. The First-tier Tribunal therefore found that it could not be said that the sponsor provided the appellant with his accommodation. I also note that, irrespective of whose name is now on the property, it is clear from paragraph 20 of the appellant’s first witness statement that the house formed part of the assets left by his late father to the family as a whole.
27. The First-tier Tribunal also found that it had not been presented with a true picture of the appellant’s financial circumstances in Nepal. It found that the appellant had alternative sources of income and means of support: he was able to farm the family’s land to produce food and income, and he undertook construction work whenever it was available. The judge also took account of the sponsor’s inconsistent evidence. Initially, she stated that the appellant had no source of income other than the money she sent to him. She subsequently accepted that he also received money from his brothers in the United Kingdom. The First-tier Tribunal therefore found that the sponsor was not the appellant’s main, or even a significant, source of income.
28. Having considered the remittance evidence then before it, the First-tier Tribunal found that evidence of support only commenced in August 2022. The judge considered the appellant’s explanation that, before then, money had been sent to his brothers in Nepal and shared with him, but did not accept that explanation for the reasons given at [27]. The judge also found that there were regular and significant gaps in the remittances, of up to eight months, and that the largest payment had been sent by one of the appellant’s brothers rather than by the sponsor.
29. The First-tier Tribunal also rejected as implausible the assertion that the appellant’s eldest son, who lived and worked in the Maldives, provided no financial assistance to his parents in Nepal.
30. The appellant has provided additional remittance receipts as part of his rule 15(2A) application. They show the following transfers:
a. £169 sent by the sponsor to the appellant on 14 May 2025;
b. £164 sent by the sponsor to the appellant on 4 July 2025;
c. £100 sent by Tul Bahadur Rai to the appellant on 18 April 2026;
d. £100 sent by the sponsor to the appellant on 2 June 2026;
e. £150 sent by the sponsor to the appellant on 7 July 2026;
f. £50 sent by the sponsor to the appellant on 29 July 2026;
g. £50 sent by Tul Bahadur Rai to the appellant on 25 August 2026; and
h. £100 sent by the sponsor to the appellant on 9 September 2026.
31. The remittances of 14 May 2025 and 4 July 2025 pre-date the First-tier Tribunal’s decision. The transfers from the appellant’s brother, Tul Bahadur Rai, support the First-tier Tribunal’s finding that the sponsor is not the only family member who sends money to the appellant. Leaving aside the May and July 2025 transfers, the subsequent remittances commence only after permission to appeal had been granted by the Upper Tribunal. The absence of remittances between September 2025 and March 2026 is explained by the sponsor’s presence in Nepal during that period. However, I find that the absence of remittances outside that period lends some support to the First-tier Tribunal’s finding that there were significant gaps in the sponsor’s financial assistance. I therefore accept Mr Terrell’s submission that the latest evidence of remittances represents no more than a continuation of the occasional payments identified by the First-tier Tribunal and does not materially alter the factual circumstances of the appeal.
32. The most significant change in the appellant’s circumstances since the First-tier Tribunal’s decision is his claim to have divorced his wife in June 2026. Mr Terrell did not seek to suggest that the timing of the divorce should itself be viewed with suspicion, despite the fact that it occurred after the First-tier Tribunal had dismissed the appeal, in part because the appellant had established an independent family life with his wife and children, and shortly after permission to appeal had been granted by the Upper Tribunal. Rather, he argued that whether the divorce was genuine was ultimately irrelevant to the issue before me. Mr Terrell submitted that it was entirely unsurprising for an individual undergoing a divorce to seek comfort and support from a parent and that the sponsor’s provision of emotional support in those circumstances did not demonstrate anything beyond the normal emotional ties that exist between a parent and an adult child.
33. The sponsor also claimed in oral evidence that, following the divorce, the appellant’s youngest son no longer lived with him and had moved to reside with his mother and her family. I accept Mr Terrell’s submission that little weight can be attached to that assertion. First, the appellant states at paragraph 3 of his second witness statement that Raju Rai “remained closely connected to me throughout the breakdown of the marriage”. If that is the case, it is unclear why he would have chosen to leave his father and move elsewhere. Second, as Mr Terrell pointed out, the divorce agreement states that: “Partition share of our sons shall remains on the Respondent Father [sic]”. While it is unclear why a divorce agreement would make provision for the custody of a 25-year-old adult child, the wording is nevertheless inconsistent with the sponsor’s oral evidence. Taken together, those matters undermine the reliability of the claim that Raju has ceased to form part of the appellant’s family unit.
34. Reliance was also placed by Mr Gazzain on the sponsor’s visit to Nepal between September 2025 and March 2026 as evidence of the closeness of the relationship between the appellant and the sponsor. Mr Terrell submitted, however, that caution should be exercised when assessing the sponsor’s evidence concerning the amount of time she spent with the appellant during that visit. In cross-examination, the sponsor confirmed that she had travelled to Nepal in order to obtain medical treatment in Kathmandu. She initially stated that she had spent half her time in Kathmandu and half her time with the appellant. When it was pointed out that her second witness statement made no mention of spending half her time in Kathmandu, she suggested that she may simply have forgotten to include it. She later stated that she had spent most of her time with the appellant and perhaps two months in Kathmandu undergoing treatment with him. When the inconsistency was highlighted, she maintained that both accounts were correct: she had stayed in Kathmandu with the appellant whilst receiving treatment and had then returned with him to the family home. Mr Terrell submitted that her evidence regarding the extent of time spent with the appellant should therefore be approached with caution. Mr Gazzain argued that regard should be had to the sponsor’s age. I accept that age may be a relevant factor. However, if the sponsor is unable accurately to recall events, as illustrated by her inability to remember signing her second witness statement dated 1 October 2026 and her belief that it had been prepared two or three months earlier, then caution is still required when assessing the reliability of her evidence.
35. I am not satisfied on the evidence that the NPR 200,000 which the sponsor took to Nepal was expended principally for the appellant’s benefit. The sponsor accepted that she had travelled to Nepal in order to obtain medical treatment and had spent a significant period of time in Kathmandu. I agree with Mr Terrell’s submission that the sponsor’s evidence concerning the loan she had allegedly taken out to fund her treatment was vague and lacking in detail. In any event, a six-month stay in Nepal, including an extended period in Kathmandu, would inevitably have involved expenditure on things like accommodation, travel and living costs, even if the medical treatment itself was not funded from the NPR 200,000. In those circumstances, I do not attach significant weight to this evidence as demonstrating financial dependence on the sponsor.
36. In any event, I do not accept that the sponsor’s visit to Nepal, even over an extended period, of itself demonstrates weighty evidence of additional elements of dependence going beyond normal emotional ties. Rather, I find that it is entirely normal for a relative to return to their country of origin and spend time with family members, even for a lengthy period.
37. I remind myself that the appellant does not need to demonstrate complete dependence upon the sponsor, whether financially or emotionally. While, in IA, the Court of Appeal declined to lay down hard and fast rules as to how the additional elements of dependency test should be applied, it did make clear that dependence is more than the existence of support and that it is harder for adults to demonstrate the necessary dependency: see [125]. In the present case, I accept that the appellant receives occasional financial assistance from his mother, as well as his brothers, and may rely on this to supplement whatever income he derives from farming and occasional construction work. However, such arrangements are not uncommon within diaspora families. I also take into account the gaps in the remittance evidence and the preserved findings of the First-tier Tribunal that the Tribunal had not been provided with a complete picture of the appellant’s financial circumstances. The new evidence does little to alter that state of affairs.
38. I accept that the sponsor wishes the appellant to join her and his siblings in the United Kingdom. However, the appellant is a 51-year-old man who has spent his adult life either in Nepal or working in Malaysia. As the First-tier Tribunal found, there is a lack of convincing evidence that the sponsor sent money to him before August 2022 despite having resided in the United Kingdom since 2011. Taking the appellant’s claim to be divorced at its highest, he remained in a long-standing marriage until very recently and has two adult sons. I am satisfied that it is more likely than not that Raju continues to reside with him. The appellant therefore had, at least until very recently, his own family unit and is likely still part of one with Raju. The fact that his mother may have provided emotional support during the breakdown of his marriage does not go beyond the normal emotional ties one would expect between an adult child and a parent. Similarly, neither the sponsor’s visit to Nepal, nor the evidence of contact between them, materially advances the appellant’s case.
39. Standing back and considering the evidence cumulatively, including the divorce, the appellant’s contact with the sponsor, the sponsor’s recent visit to Nepal, the remittances, and the appellant’s current circumstances, I am not satisfied that these matters demonstrate additional elements of dependence going beyond the normal emotional ties between an adult son and his mother. At its highest, the evidence simply demonstrates a close and supportive relationship that falls far short of the applicable legal test.
40. I have taken into account that the appellant’s brothers were successful in their respective appeals. However, those decisions turned on their own facts. In particular, neither brother had established a family unit of his own. The appellant’s circumstances are materially different.
Conclusion
41. In the circumstances, I am not satisfied that the appellant has demonstrated that there exists a level of dependence between him and the sponsor which goes beyond the normal emotional ties between adult relatives. It follows that family life is not established within the meaning of Article 8(1).
42. As I am not satisfied that Article 8(1) is engaged, it is unnecessary for me to consider the proportionality of the respondent’s decision.
Notice of Decision
The decision of the First-tier Tribunal involved the making of a material error of law and is set aside, with all findings of fact preserved.
Upon remaking the decision, the appellant’s appeal on human rights grounds is dismissed.

M R Hoffman

Judge of the Upper Tribunal
Immigration and Asylum Chamber

7th October 2026