United Kingdom Immigration and Asylum (AIT/IAC) Unreported Judgments

 

IN THE UPPER TRIBUNAL IMMIGRATION AND ASYLUM CHAMBER	Case No: UI-2024-000620
	First-tier Tribunal No: HU/60437/2022 LH/03064/2023

 

THE IMMIGRATION ACTS

Decision & Reasons Issued:

 

10 ^th February 2025

 

Before

 

UPPER TRIBUNAL JUDGE NEVILLE

DEPUTY UPPER TRIBUNAL JUDGE SEELHOFF

 

Between

 

Shankar Rai

(NO ANONYMITY ORDER MADE)

Appellant

and

 

Entry Clearance Officer

Respondent

Representation :

For the Appellant: Mr M West, counsel instructed by Castle Street Chambers

For the Respondent: Mr K Ojo, Senior Home Office Presenting Officer

 

Heard at Field House on 28 January 2025

 

 

DECISION AND REASONS

 

1.             The appellant is a 42 year old national of Nepal, whose father ("the sponsor") was previously granted settlement in the United Kingdom as a former soldier in the Brigade of Gurkhas. On 1 June 2022 the appellant applied for entry clearance to join him. The respondent refused the application, deciding that the rules concerning adult dependent relatives in Appendix FM were not met, that his circumstances did not meet the requirements of the relevant discretionary policy, and that the relationship between the appellant and the sponsor did not engage Article 8(1) ECHR.

2.             The appeal against that decision came before First-tier Tribunal Judge Sweet who dismissed it in a decision dated 12 August 2023. Permission to appeal to the Upper Tribunal was granted on a renewed application by Upper Tribunal Judge Owens. She summarised the single ground of appeal as being that the Judge "failed to assess whether there was real or effective or committed support at the date of the application and whether this has continued since the sponsor and the appellant's siblings relocated to the UK", which she considered had arguable merit.

Principles - family members of former Gurkha soldiers

3.             The principles are well established. The issue for the Judge was whether the relationship between the appellant and the sponsor constituted family life within the meaning of Article 8(1) ECHR at the time of the application, and since: Rai v ECO [2017] EWCA Civ 320 at [39]. In AG (Eritrea) v SSHD [2007] EWCA Civ 801, engagement of Article 8(1) was described as having a relatively low threshold. In Kugathas v SSHD [2003] EWCA Civ 31, it was held that family life between an adult child and his parents or siblings requires more than "normal emotional ties"; the "irreducible minimum" is "real, committed or effective support", which might be shown "if the appellant were dependent on his family or vice versa". In Rai, it was acknowledged that Kugathas had been interpreted too restrictively in the past: while it was necessary to have regard to both emotional and financial dependence, family life between adult relatives could exist "without evidence of exceptional dependence". The Court of Appeal observed that other relevant factors include cohabitation and whether the adult child lives an independent life or has founded a family of his own, and reiterated that each case is fact sensitive, requiring the Juge to identify the nature of the family life asserted.

4.             Due to the significance of the historic injustice against former Gurkha soldiers, a finding that family life is engaged will also establish that refusing the appellant entry to the UK disproportionately interferes with it, provided that the only countervailing factors are the public interest in maintaining effective immigration controls and the normative guidance in Part 5A of the Nationality, Immigration and Asylum Act 2002: Ghising and others (Ghurkhas/BOCs: historic wrong; weight) [2013] UKUT 567 (IAC); Rai at [55]-[57].

Consideration

5.             In his decision, the Judge set out an uncontroversial chronology before giving the following reasons for rejecting that family life exists between the appellant and the sponsor:

9. The key issue in this case is that the appellant has worked overseas and led an independent life, both in UAE from June 2007 to July 2010, and Bahrain from March 2017 until April 2021. In respect of the latter overseas employment, he gave evidence, as did his father, that the purpose of the Bahrain employment was to enable his parents to raise funds in order to make the application on behalf of themselves and four of their children.

10. I do not accept that the appellant was not leading an independent life over a combined period of seven years (three years in UAE and our years in Bahrain), and therefore there is no reason why he cannot continue to do so in Nepal.

11. Some reliance was made on the power of attorney which the appellant's father has given him to enable him to withdraw funds from his father's bank account in Nepal, but there is little evidence of those funds being used, and one separate money transfer. The appellant is engaged in the family farming in Nepal, which appears a form of self-sufficiency, but it also appears that he lives in two different accommodations, firstly in Katmandu, in a property rented by his father, and then at the family farm in another part of Nepal.

12. I am not persuaded that there is real, effective or committed support (as defined in Rai [2017]), and that the appellant cannot continue leading an independent life in that country. There are no exceptional circumstances amounting to a breach of his Article 8 ECHR rights in this case, as there is no family life under Article 8(1). Therefore, this appeal is dismissed.

6.             Mr West made several criticisms of the above passages, all of which we consider to be well-founded. The most salient errors committed by the Judge are as follows.

7.             First, even if the Judge was right to describe the time spent working overseas as 'living an independent life', there is no analysis of whether family life existed after the appellant's return to live in the family home in Nepal. It appears that the family then all lived together for over a year before the application was made.

8.             Second, the Judge found at [10] that the appellant worked overseas in order to fund immigration applications for the whole family to move to the UK together. That purpose can only have supported rather than undermined the existence of family life, showing both mutual dependence and a cohesive family unit. Moreover, the Judge's reasons do not fairly reflect the appellant's evidence on the point, which gives considerably more detail on his financial relationship with the sponsor at the material time.

9.             Third, at [10] the Judge considered there to be no reason why the appellant could not continue to live an independent life in Nepal. This both omits consideration of the time spent living together before the sponsor's departure to the UK and wrongly focuses on whether the appellant could live independently in the future rather than whether he was living independently at the relevant time. The test is not restricted to whether the appellant requires the sponsor's financial support to meet his day-to-day needs; this is akin to the mistakenly over-restrictive interpretation of Kugathas described in Rai.

10.         Fourth, while at [12] the Judge refers to the correct test and a relevant authority, nowhere does he make any findings on any non-financial aspect of the relationship, such as emotional support.

11.         In reaching our conclusions, we have fully taken into account Mr Ojo's arguments as to why the Judge's decision was sustainable. Mr Ojo was right to warn against disturbing findings of fact unless the Judge was plainly wrong, and we remind ourselves of the principles set out in Volpi v Volpi [2022] EWCA Civ 464 at [2]. Indeed, that appellate caution extends beyond the Judge's fact-finding to his evaluation of those facts and the inferences drawn from them: Walter Lilly & Co Ltd v Clin [2021] EWCA Civ 136 at [83]. It is trite that a Judge need not identify all the evidence relied upon or express every step of their reasoning. Here, however, the Judge failed to address numerous material factors at all. He can be further seen to place decisive relevance on whether the appellant could live independently if push came to shove, which was not directly relevant to the issue. Overall, the Judge did not identify the nature of the family life asserted, much less evaluate it.

12.         The decision must therefore be set aside. It is unnecessary for us to address the appellant's potentially meritorious other complaints that the Judge misunderstood the evidence, such as that which he mentioned at [11], or that in the same paragraph took an adverse point that was never put to the appellant for comment at the hearing.

Disposal

13.         After we pronounced the above decision, the representatives agreed that the case should be remitted to the First-tier Tribunal for rehearing. Applying the principles set out in the Practice Direction, according to the guidance given in Begum (Remaking or remittal) Bangladesh [2023] UKUT 46 (IAC), we agree. Not only must the case be heard again, and all necessary fact-finding conducted, the appellant has yet to have the benefit of a fair hearing of his appeal in the First-tier 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 any judge other than Judge Sweet.

 

 

J Neville

Judge of the Upper Tribunal

Immigration and Asylum Chamber

 

31 January 2025