Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER Case Nos: UI-2026-002115
UI-2026-002119
UI-2026-002120
First-tier Tribunal Nos: HU/56045/2024
HU/56055/2024
HU/56063/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:

9th October 2026

Before

The Hon. MR JUSTICE LAVENDER, PRESIDENT
UPPER TRIBUNAL JUDGE HOFFMAN

Between

YANU MAYA GURUNG
ALEX GURUNG
ABIYA GURUNG
(NO ANONYMITY ORDER MADE)
Appellants
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Ms K McCarthy of Counsel, instructed by Everest Law Solicitors
For the Respondent: Mr D Simpson, Senior Home Office Presenting Officer

Heard at Field House on 29 July 2026

DECISION AND REASONS
(1) Introduction
1. The appellants appeal, with permission, against the decision of First-tier Tribunal Judge Doyle (“the judge”), promulgated on 19 February 2026, dismissing their human rights appeals against the respondent’s decisions dated 18 April 2024 refusing their applications for leave to enter the United Kingdom. They had sought leave under Appendix Gurkha and Hong Kong military unit veteran discharged before 1 July 1997 to the Immigration Rules (“Appendix AF (GHK)”).
(2) Anonymity
2. The First-tier Tribunal made an anonymity order in respect of the appellants on the basis that the second and third appellants are children. The mere fact that two of the appellants are children is not, without more, sufficient to justify the making of an anonymity order. We therefore indicated to the parties that we were minded to discharge the order. Ms McCarthy, who appeared on behalf of the appellants, informed us that no application for anonymity had been made before the First-tier Tribunal and that the judge appears to have made the order of his own motion. In those circumstances, we discharge the anonymity order.
(3) Background
3. The first appellant was born in 1984. The second and third appellants are her minor children, born in 2008 and 2019 respectively. All three are citizens of Nepal.
4. According to the appellants, the first appellant married her husband, who is the father of the second and third appellants, in 2007, i.e. when the first appellant was 22 or 23. In 2016 her husband moved to South Korea for work. Although he initially provided financial support to the family, that support gradually diminished and ultimately ceased altogether. The first appellant’s husband returned to Nepal for about 3 months in late 2018 and/or early 2019, which is when the third appellant was conceived. The first appellant and her husband separated in 2019 and divorced in 2023.
5. Meanwhile, the first appellant’s father, Mr Krishna Bahadur Gurung (“the sponsor”), was discharged from the Brigade of Gurkhas in 2003. In July 2006 he successfully obtained indefinite leave to enter the United Kingdom. However, it was not until 2012 that he relocated here, accompanied by his wife and two sons.
6. On 25 February 2024 the appellants applied for entry clearance to join the sponsor in the United Kingdom. It was contended on their behalf that, following the abandonment of the family by the first appellant’s husband, they had become financially and emotionally dependent upon their relatives in the United Kingdom.
7. By decisions dated 18 April 2024, the respondent refused the appellants’ applications for entry clearance. The respondent was not satisfied that they met the requirements of the Immigration Rules, principally because the sponsor had not been discharged from the Gurkhas before 1 July 1997 and because the appellants and sponsor had been living in separate households for more than two years. Although the appellants expressly relied upon Article 8 ECHR in the covering letter accompanying their applications, the respondent did not substantively address their circumstances outside the Rules. As we discuss below, there was no discussion before the First-tier Tribunal about whether the appellants enjoyed a right of appeal on human rights grounds.
(4) The Appeal before the First-tier Tribunal
8. In a decision promulgated on 19 February 2026, the First-tier Tribunal dismissed the appellants’ appeals. The judge found that they did not meet the requirements of the Immigration Rules governing entry clearance. In relation to Article 8, the judge concluded that the first appellant had not enjoyed family life with the sponsor since her marriage in 2007 and that any family life which may previously have existed between them had thereby come to an end. Having found that Article 8(1) was not engaged, the judge considered it unnecessary to proceed to an assessment of proportionality under Article 8(2). The appeals were therefore dismissed.
(5) The Appeal to the Upper Tribunal
9. On 28 April 2026 First-tier Tribunal Judge Hollings-Tennant granted the appellants permission to appeal on four grounds:
(1) The judge misdirected himself on the Article 8(1) test and failed properly to consider the evidence of family ties between the appellants and their sponsor.
(2) The judge erred by going behind a concession made by the respondent.
(3) The judge failed to consider the evidence of financial support provided to the first appellant by her parents.
(4) The judge failed to consider the second and third appellants’ entitlement to settle in the United Kingdom with their mother.
(6) The Hearing
10. We had before us the consolidated hearing bundle, the skeleton argument filed by the respondent and the presenting officer’s note of the First-tier Tribunal hearing. No up-to-date skeleton argument had been filed on behalf of the appellants and Ms McCarthy confirmed that she would be relying on the written grounds of appeal.
11. Having read the presenting officer’s note of the First-tier Tribunal hearing, Ms McCarthy informed the Tribunal that she would be withdrawing Ground 2.
12. We have not found it necessary to admit or rely upon the post-decision evidence contained in section B of the hearing bundle. As Mr Simpson notes in his skeleton argument, no application has been made by the appellants to rely on it, nor has it been explained why it was not before the First-tier Tribunal. Furthermore, Ms McCarthy did not seek to rely on it at the error of law hearing. Our assessment of whether the First-tier Tribunal erred in law therefore proceeds by reference only to the evidence which was before the judge.
(6)(a) The Parties’ Submissions
13. Ms McCarthy submitted that the judge had materially erred in his assessment of whether family life existed for the purposes of Article 8. She argued that the judge had wrongly treated the first appellant’s decision to establish an independent life in 2007 as bringing family life with her parents to a permanent end, without adequately considering the evidence that, following the breakdown of her marriage, family life had been re-established by the date of hearing. Reliance was placed on unchallenged evidence that the first appellant had been abandoned by her husband, was left in financially and emotionally vulnerable circumstances and had become dependent upon her parents for practical, emotional and financial support. It was submitted that the judge failed properly to engage with that evidence, including evidence of regular remittances and ongoing communication, and therefore failed to assess whether there were additional elements of dependency involving more than the normal emotional ties. It was further submitted that the judge’s treatment of the evidence relating to financial support was inadequate and that, had the Article 8 family life issue been properly determined, the position of the second and third appellants would also have required consideration.
14. Mr Simpson relied on the Rule 24 response and the respondent’s skeleton argument. He submitted that no material misdirection of law had been established. Although the judge had referred to the first appellant embarking on an independent life in 2007, the determination, read fairly and as a whole, showed that the judge had gone on to consider whether family life existed at the date of hearing and had applied the correct legal approach. The judge had taken account of the evidence summarised in the findings section and was entitled to conclude that the first appellant had formed and retained her own family unit with her children, notwithstanding the breakdown of her marriage. In relation to financial support, Mr Simpson submitted that the judge had plainly considered the evidence of remittances and was entitled to note the shortcomings and gaps in the evidence regarding their extent and purpose. The challenge, he said, amounted to no more than disagreement with findings which were properly open to the judge on the evidence. Ground 2 was no longer pursued and Ground 4 added nothing, as it depended entirely upon the success of the challenges advanced under Grounds 1 and 3.
15. At the end of the hearing, we reserved our decision.
(6)(b) The Jurisdictional Issue
16. Following the hearing, and whilst preparing this decision, we noted that, although the respondent had considered the appellants’ applications under Appendix AF (GHK) to the Immigration Rules, the respondent’s decisions contained no express, freestanding assessment of the appellants’ rights under Article 8. Furthermore, rather than stating that the appellants had the right to appeal against the respondent’s decisions, the decisions stated that the appellants could seek an administrative review. Although no jurisdictional issue had been identified by the parties or the judge in the proceedings before the First-tier Tribunal, nor raised before us in the error of law hearing, we considered that the form and content of the respondent’s decisions were sufficient to give rise to a question whether the appellants had in fact enjoyed a statutory right of appeal to the First-tier Tribunal. We therefore invited both parties to make written submissions on whether the respondent’s decisions attracted a right of appeal to the First-tier Tribunal. We are grateful to them for their submissions on this issue.
(7) Discussion
(7)(a) Jurisdiction
17. We can deal with this matter briefly, because there was no dispute between the parties on the point.
18. A person may appeal to the First-tier Tribunal where the Secretary of State has decided to refuse a human rights claim made by that person: see section 82(1)(b) of the Nationality, Immigration and Asylum Act 2002 (“the 2002 Act”).
19. A human rights claim is defined under section 113 of the 2002 Act as:
“a claim made by a person to the Secretary of State at a place designated by the Secretary of State that to remove a person from or require him to leave the United Kingdom or to refuse him entry into the United Kingdom would be unlawful under section 6 of the Human Rights Act 1998.”
20. There is no dispute that the appellants expressly advanced a human rights claim within the meaning of section 113 in the covering letter accompanying their applications. However, as we have noted, the respondent’s decisions contained no express, freestanding assessment of their rights under Article 8. Insofar, therefore, as the appellants had advanced a human rights claim in the covering letter, the respondent had not decided to refuse that claim for the purposes of section 82(1)(b).
21. The issue which we must determine, therefore, is whether the refusal of the applications made by the appellants under Appendix AF (GHK) to the Rules amounted in itself to the refusal of human rights claims. This, in turn, depends on the question whether the applications made by the appellants under Appendix AF (GHK) to the Rules were applications of the type identified in MY (Pakistan) v Secretary of State for the Home Department [2022] 1 WLR 238 which inherently involve a human rights claim.
22. In summary, the parties agreed that applications made under Appendix AF (GHK) to the Rules did inherently involve a human rights claim. Both parties referred us to a preliminary decision of the First-tier Tribunal in the unreported case of Rai & Others (HU/50404/2024 et al), which was heard by Resident Judge Feeney and First-tier Tribunal Judge Bulpitt and promulgated on 25 June 2024. In that case, the Tribunal concluded that the refusal of applications made under Appendix AF (GHK) amounted to the refusal of human rights claims and therefore constituted appealable decisions. The essence of the decision was that an application made by the child of a former Gurkha under Appendix AF (GHK) contained the essential elements of a human rights claim, as set out by the First-tier Tribunal at [22]:
“What amounts to a human rights claim is more a question of substance than form, although there are essential elements consisting of (a) a claim to enter the United Kingdom, (b) an assertion of facts that could constitute an existing or prospective family life, and (c) an assertion that refusal will interfere with family life: Alighanbari, R (on the application of) v SSHD [2013] EWHC 1818 (Admin) [69] – [70].”
23. The parties also referred us to the respondent’s caseworker guidance, Rights of Appeal (Version 15.0; and Version 17.0, 30 September 2025), and the respondent’s guidance on Gurkhas and Hong Kong military unit veterans discharged before 1 July 1997 and their family members (Version 3.0, 11 November 2025). However, the question which we have to decide is one of law and is not dependent on, or affected by, the terms of guidance published by the respondent.
24. Nevertheless, we are satisfied that, in accordance with both the parties’ agreed position and the decision in Rai & Others, the refusal of the appellants’ applications under Appendix AF (GHK) to the Rules amounted to the refusal of human rights claims. Accordingly, a valid right of appeal lay to the First-tier Tribunal.
25. We would add that the current versions of the respondent’s guidance indicate that she now accepts that decisions taken under Appendix AF (GHK) attract a right of appeal on human rights grounds. We therefore anticipate that jurisdictional disputes of this kind will largely be confined to the past.
(7)(b) Ground 1
26. As emphasised in Volpi v Volpi [2022] 4 WLR 48 at [2] to [3], findings of fact made by a judge are entitled to respect and should only be disturbed where they are vitiated by legal error, such as a failure to apply the correct test, a misdirection or inadequate reasoning which prevents the losing party from understanding why they lost. It is against that standard that we have assessed the merits of the appellants’ appeals.
27. In the present case, at [20], the judge made the following finding:
“The harsh truth is that any Article 8 family life which existed between the [first] appellant and her ex-Gurkha soldier parent ended in 2007 when the [first] appellant embarked upon her own independent adult life.”
28. The appellants do not challenge the judge’s finding that the first appellant’s family life with the sponsor came to an end in 2007 when she married her husband and established her own family unit. Their contention is, rather, that the judge erred at [20] by failing to recognise that family life between the first appellant and the sponsor was capable of being re-established following the breakdown of her marriage and the vulnerable state in which she then found herself.
29. We reject the appellants’ submission that the judge failed to appreciate that the first appellant’s family life with her sponsor could be revived. The finding at [20] cannot properly be read in isolation. In particular, the judge went on to state at [21]:
“The recent financial contributions from family members in the UK comes after a successful, significant, period as an independent adult. The financial contribution now made is not sufficient to establish anything more than the normal emotional ties between independent adult family members.”
30. That passage must, in turn, be read in the context of the judge’s earlier findings. At [17], the judge considered the first appellant’s claim that she was financially dependent upon her parents but concluded that “there are significant gaps in the evidence”. We deal with that finding below when considering Ground 3. The judge also observed that there was insufficient evidence concerning the first appellant’s income and expenditure, the amounts received from the sponsor or the purposes for which those funds were used. At [18], the judge further found that the first appellant had established her own independent family unit in 2007 upon marrying her husband and having children.
31. Furthermore, it cannot be said that the judge was unaware of the first appellant’s claimed vulnerability. It is clear from reading [9(d)-(g)] that the judge was aware of the circumstances which led to the end of the first appellant’s marriage and her claim that she was now financially and emotionally dependent on her parents. The judge was not required to rehearse the contents of the witness statements in the decision.
32. We also take into account that, at [15]-[16], the judge properly directed himself to the case of IA v Secretary of State for the Home Department [2026] 2 WLR 1001 and the correct test for determining whether family life exists for the purposes of Article 8(1), namely that there are additional elements of dependence, involving more than the normal emotional ties.
33. In those circumstances, we are satisfied that the judge did not misdirect himself as to the possibility that family life, once broken, may subsequently be re-established. The judge was plainly aware that this was a central issue in the appeal. His findings were that the first appellant’s family life with her parents came to an end in 2007 and that the evidence before the Tribunal was insufficient to establish that the requisite family life had been re-established by the date of the hearing.
34. In our judgment, it was reasonably open to the judge to find, on the evidence in this case, that the provision of emotional support by parents and a sibling to an adult family member, even when supplemented by financial support, did not demonstrate the additional elements of dependency capable of engaging Article 8(1). Indeed, we take into account the recent case of Entry Clearance Officer v FA [2026] EWCA Civ 1014, where, at [71], the Court of Appeal found that no family life existed in an appeal which, in our judgment, involved more compelling facts than the present one.
35. Accordingly, this ground of appeal is not made out.
(7)(c) Ground 3
36. The appellants contend that the judge failed to take into account the evidence of financial support provided to the first appellant by her parents in the United Kingdom.
37. In particular, they submit that, because the presenting officer elected not to cross-examine the witnesses, the judge was required to treat the evidence contained in the witness statements at their highest. That evidence included the first appellant’s account (in her witness statement dated 14 November 2024) that:
(1) Her former husband had previously provided her with NPR 100,000 every other month and she experienced difficulties when that amount was reduced to NPR 20,000 per month (paragraphs 6 to 7).
(2) She had never lived independently and, even though she had worked in a beauty parlour, she was unable to earn a living on her own (paragraphs 5 and 12).
(3) Without the financial support she receives from her parents, she “will not survive” (paragraph 13).
38. The appellants further submit that the judge failed to take account of the witness statements of the first appellant’s parents, which describe the financial difficulties she encountered as a result of her former husband’s conduct, together with remittance receipts evidencing payments made to her by her mother and sister between 2020 and 2024.
39. We note at the outset that, notwithstanding the appellants’ reliance on the absence of cross-examination, it was in any event not possible for the respondent to test the first appellant’s evidence directly, as she resides in Nepal. As Ms McCarthy confirmed, individuals are unable to give evidence remotely from Nepal in proceedings before the courts and tribunals of the United Kingdom. The presenting officer’s note records that he elected not to cross-examine the family members because it was accepted that the appellants could not meet the requirements of the Immigration Rules. Moreover, in her Review dated 13 February 2024 (presumably meaning 13 February 2025), the respondent expressly contended that the evidence of communication with family members in the United Kingdom and of financial support was insufficient to demonstrate dependency of a kind capable of engaging Article 8(1). The appellants were therefore on notice of that issue well before the hearing. In our judgment, the fact that the presenting officer chose to focus on whether the documentary evidence was sufficient to establish the engagement of Article 8(1) did not require the judge to accept uncritically every assertion contained in the witness statements.
40. Further, as Mr Simpson submitted, the judge was plainly aware of the evidence on which the appellants relied, having expressly referred to it at [9]. Once it is recognised that the judge took that evidence into account, the appellants’ complaint is not, in substance, that relevant evidence was overlooked. Rather, it is a challenge to the weight which the judge attached to that evidence and to the conclusions which he drew from it. We have considered the witness statements of the first appellant and her family members, all of which are relatively brief. None specifies the frequency with which money was sent to the first appellant, the amounts which were transferred or the purposes for which the funds were used. We do not accept the appellants’ submission that the judge was required to infer, from the first appellant’s account of the financial difficulties occasioned by the reduction in support from her former husband, the level of financial assistance which she required in order to meet her essential needs. Nor was the judge bound simply to accept her assertion that she could not survive without financial support from her parents. The judge was required to consider the evidence holistically, which he did.
41. As to the remittance receipts, we have considered the copies contained in the two bundles filed before the First-tier Tribunal. The evidence of regular transfers begins only in February 2024, the same month in which the appellants applied for entry clearance. Those receipts show payments being made at least monthly until January 2025, with the exception of May and July 2024. Prior to that period, the evidence demonstrates only two transfers in 2020, two in 2021, two in 2022 and four in 2023. In those circumstances, the judge was, in our view, reasonably entitled to conclude at [17] that there were significant gaps in the evidence of financial support following the breakdown of the first appellant’s marriage.
42. Accordingly, this ground of appeal is not made out.
(7)(d) Ground 4
43. The appeals of the second and third appellants were dependent upon the first appellant establishing that she enjoys protected family life with her parents for the purposes of Article 8(1). This ground therefore stands or falls with Grounds 1 and 3. As we have rejected those grounds, it follows that this ground of appeal is likewise not made out.
(7)(e) Conclusion
44. For the reasons given above, we are satisfied that the judge was entitled, for the reasons which he gave, to decide that the evidence before him was insufficient to establish that there were additional elements of dependence, involving more than the normal emotional ties.
(8) Notice of Decision
45. The decision of the First-tier Tribunal did not involve the making of an error of law. The decision shall stand.
46. The appeals are dismissed.

M R Hoffman

Judge of the Upper Tribunal
Immigration and Asylum Chamber

9th October 2026