Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER Case No: UI-2026-003932
First-tier Tribunal No: HU/66707/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:

29th October 2026

Before

DEPUTY UPPER TRIBUNAL JUDGE JARVIS

Between

THE ENTRY CLEARANCE OFFICER
Appellant
and

NAR KUMARI LIMBU
(NO ANONYMITY ORDER MADE)
Respondent

Representation:

For the Appellant: Ms A. Nolan, Senior Home Office Presenting Officer
For the Respondent: Ms K. McCarthy, Counsel instructed by Everest Law Solicitors

Heard at Field House on 6 October 2026

DECISION AND REASONS
Introduction
1. In this appeal the Appellant is the Entry Clearance Officer but in order to maintain consistency with the decision of the First-tier Tribunal I have referred to the parties as they were during that hearing.
2. The Respondent was granted permission to appeal to the Upper Tribunal by First-tier Tribunal Judge Taylor on 17 July 2026.
Relevant background
3. On 26 May 2026 First-tier Tribunal Judge Kempton (hereafter “the Judge”) promulgated a decision allowing the Appellant’s Article 8 ECHR appeal against a decision of the Respondent.
4. In reaching the decision the Judge made reference to an earlier decision of First-tier Tribunal Judge Suffield-Thompson, promulgated on 30 August 2023.
5. At §4 of the Judge’s decision she summarised the findings of fact made by Judge Suffield-Thompson in 2023. At §5 the Judge noted that Judge Suffield-Thompson had concluded that the Appellant had not met the requirements of the Immigration Rules as a dependent child of a Gurkha and had concluded that the refusal of entry clearance did not breach her Article 8 ECHR rights.
6. At §§6 – 8 the Judge noted Judge Suffield-Thompson’s conclusions that there was no more than the usual attachment of fondness between the Appellant and her adult parents. The Judge also referred to §50 of Judge Suffield-Thompson’s decision in which it was found that the Appellant had developed a family life of her own in Nepal with her teenage children and therefore had become independent of her own family after many years of separation.
7. At §13 the Judge noted that there was a considerable amount of evidence before her consisting of a stitched bundle of 838 pages and an additional bundle of 144 pages.
8. From §40 onwards the Judge noted that the evidence before her was “somewhat different” from that which had been before Judge Suffield-Thompson in 2023.
9. At §45 the Judge concluded that the Appellant did not meet the requirements of the Immigration Rules relating specifically to family members of Gurkha servicemen.
10. At §47 the Judge concluded that the important matter in the appeal was the emotional support derived by all members of the family. At §48 the Judge observed that the family felt incomplete due to their physical separation from one isolated member of the family.
11. At §49 the Judge concluded that on the basis of all the information now before her there were exceptional circumstances rendering the refusal of claim a breach of Article 8 of the ECHR.
12. Finally, at §50, the Judge observed that the situation would have been different if the Appellant’s children had still been living with her (it is claimed that they had relocated to live with their father) and if she had still been receiving maintenance from her ex-husband as this would indicate that she had some form of financial and emotional support in Nepal. The Judge found that it appeared that the Appellant had no support whatsoever in Nepal and that the support that she does derive comes almost exclusively from her father and family in the United Kingdom.
The error of law hearing
13. In the error of law hearing Ms Nolan made submissions in respect of the Respondent’s grounds of appeal. Ms McCarthy made submissions in response and in doing so relied upon her rule 24 response (dated 6 August 2026) and her skeleton argument from the First-tier proceedings. At the end of Ms Nolan’s brief final response, I reserved my decision.
Findings and reasons
14. The first major ground advanced by the Respondent relates to the assertion that the Judge failed to properly apply the binding decision of the IAT in Devaseelan v Secretary of State for the Home Department [2002] UKIAT 702. In essence Ms Nolan argued that the Judge had failed to apply the following part of the guidance (the bold parts are as they are in the Tribunal’s decision):
“(4) Facts personal to the Appellant that were not brought to the attention of the first adjudicator, although they were relevant to the issues before him, should be treated by the second adjudicator with the greatest circumspection. An Appellant who seeks, in a later appeal, to add to the available facts in an effort to obtain a more favourable outcome is properly regarded with suspicion from the point of view of credibility. (Although considerations of credibility will not be relevant in cases where the existence of the additional fact is beyond dispute.) It must also be borne in mind that the first Adjudicator's determination was made at a time closer to the events alleged and in terms of both fact-finding and general credibility assessment would tend to have the advantage. For this reason, the adduction of such facts should not usually lead to any reconsideration of the conclusions reached by the first Adjudicator.”
“(7) The force of the reasoning underlying guidelines (4) and (6) is greatly reduced if there is some very good reason why the Appellant's failure to adduce relevant evidence before the first adjudicator should not be, as it were, held against him. Such reasons will be rare.”
15. I accept Ms Nolan’s submission that Judge Suffield-Thompson had not only observed that there was an absence of potentially relevant evidence but also concluded that the evidence of the Appellant and the Sponsor had not been fully forthcoming, had been contradictory and implausible (§32).
16. I also accept that Judge Suffield-Thompson spent considerable time assessing the 2022 divorce petition which had been submitted by the Appellant. Judge Suffield-Thompson noted at §39 that the Appellant’s solicitors had failed to produce a relevant page and that Counsel at that time had acknowledged that this was an issue.
17. Judge Suffield-Thompson quoted from the divorce petition at §40 of the decision – in which the Appellant’s ex-husband stated that he had been fulfilling all of his liabilities by giving food and clothes to the Appellant. At §41 Judge Suffield-Thompson went on to conclude that the Appellant and Sponsor had deliberately omitted reference to the ex-husband’s support which undermined the Sponsor’s oral evidence that the ex-husband had never contributed to the Appellant’s maintenance.
18. Overall Ms Nolan submitted that the Judge in the appealed decision had referred to the decision of Judge Suffield-Thompson as a starting point but had not in fact applied the Devaseelan criteria, especially when assessing the weight to be given to the evidence in the current bundle appertaining to the period from 2016 – 2022: evidence which could have been provided to the Tribunal for the 2023 hearing.
19. Ms Nolan submitted that the Judge had carried out her own assessment of the overall evidence without any meaningful reflection on the impact of the findings made by Judge Suffield-Thompson and without the necessary circumspection.
20. In response Ms McCarthy referred the Tribunal to her rule 24 response and her skeleton argument for the First-tier Tribunal hearing. Ms McCarthy emphasised the significant difference between the evidence provided to this Judge by comparison to the nature of the evidence before Judge Suffield-Thompson in 2023. Ms McCarthy made other observations about the apparent absence of questions asked about the divorce petition during the 2023 hearing.
21. By contrast, Ms McCarthy submitted that in this appeal three witnesses had all given evidence about the Appellant’s circumstances including her financial support after the breakdown of the marriage through domestic violence in 2016.
22. In my view the Respondent’s criticism of the Judge’s approach to the assessment of the evidence including that predating the earlier decision of Judge Suffield-Thompson is made out.
23. There are numerous authorities from the Upper Tribunal and the Court of Appeal which have applied, and emphasised the importance of, the guidance given in Devaseelan (albeit the criteria should not be taken as exhaustive). Helpfully, the Court most recently gave guidance in KD v Secretary of State for the Home Department [2026] EWCA Civ 349:
“66. To illustrate, the first guideline, which created the concept of a 'Devaseelan starting point', calls for more than a recognition that there has been a previous decision. In order to identify the true location of the starting point for its own journey, the second tribunal must identify the scope of the issue(s) that may be common to the two appeals, and analyse what the first tribunal found and why. It is only by doing this that it can know what significance should properly be attached to the first appeal decision, before going on to apply the guidance as a whole. The other guidelines, insofar as they are relevant to the inquiry in the individual case, require equal consideration. A broad statement by the second tribunal that it is treating the first tribunal's decision as its starting point is not an application of the Devaseelan guidance and is likely to lead to error, one way or the other.”
24. In my judgement it is clear from the decision of the Judge that although she summarised the earlier findings of Judge Suffield-Thompson at the beginning of her decision she did not, in her own findings, reflect on the fact that some of the evidence before her could have been provided to the First-tier Tribunal in 2023 but was not.
25. In other words, the caution advised by the panel at points 4 & 7 of Devaseelan was not obviously deployed by this Judge. I find that the Judge was required to explain why the evidence before her, which partly related to circumstances at the time of the decision of Judge Suffield-Thompson (but was not before that judge), should be given material weight. This does not mean that a judge properly applying the Devaseelan principles could not properly conclude that the totality of the new evidence (both predating and postdating the decision of Judge Suffield-Thompson in 2023) is sufficient to show that it is fair to come to a different conclusion on the assertion that there is an Article 8(1) ECHR family life between the parties, but it is important that the criteria are clearly applied and adequate findings are made.
26. I therefore find that the Judge materially erred in her assessment of the evidence for the reasons which I have laid out above. The consequence of this finding is that the Judge’s conclusion that the Appellant had established an Article 8(1) ECHR family life with her family in the United Kingdom is materially flawed and must be set aside.
27. On that basis there is no need for the Upper Tribunal to consider the other grounds advanced by the Respondent.

Notice of Decision
28. The decision of the First-tier Tribunal is set aside in its entirety for material error in law. The appeal is to be remitted to the First-tier Tribunal for full hearing by any judge other than Judge Kempton.
29. I have considered the submissions of the parties carefully in respect of the next venue for the hearing of the Article 8 ECHR appeal. I have decided that the appeal should be remitted to the First-tier Tribunal because of the full nature of the fact-finding which is required with careful attention to the guidance given in Devaseelan.
30. The First-tier Tribunal will also be expected to clearly apply the Court of Appeal’s judgment in IA & Ors v Secretary of State for the Home Department [2025] EWCA Civ 1516 when assessing the Appellant’s claim to an Article 8(1) ECHR family life.

I Jarvis

Deputy Judge of the Upper Tribunal
Immigration and Asylum Chamber

15 October 2026