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

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IN THE UPPER TRIBUNAL IMMIGRATION AND ASYLUM CHAMBER	Case No: UI-2024-001616
	First-tier Tribunal No: HU/54746/2023

 

THE IMMIGRATION ACTS

Decision & Reasons Issued:

On the 17 February 2025

 

Before

 

UPPER TRIBUNAL JUDGE SHERIDAN

DEPUTY UPPER TRIBUNAL JUDGE HILLS

 

Between

 

MR DINESH GURUNG

(NO ANONYMITY ORDER MADE)

Appellant

and

 

THE ENTRY CLEARANCE OFFICER

Respondent

Representation :

For the Appellant: Mr Spurling, of counsel, instructed by Bond Adam LLP Solicitors

For the Respondent: Ms Isherwood, Senior Home Office Presenting Officer

 

Heard at Field House on 7 February 2025

 

DECISION AND REASONS

 

Introduction

1.        The appellant is a citizen of Nepal and the son of a former Gurkha soldier (the "sponsor"). He appealed against a decision of First Tier Tribunal Judge Swinnerton (the "FTJ") promulgated on 23 December 2023, which dismissed his appeal against refusal of entry clearance as an adult dependent child of a former Gurkha.

 

2.        The appellant's human rights claim was based on the family life said to exist between himself and the sponsor, as well as on the basis of the historic injustice relating to children of former Gurkha soldiers.

3.        Deputy Upper Tribunal Judge Haria (the "DUTJ") set aside the decision of the FTJ on the basis of an error of law in a decision promulgated on 14 August 2024, and directed that the decision should be remade in the Upper Tribunal.

 

4.        The following findings of fact were preserved by the DUTJ at [44]:

 

a.        That the appellant was married for about six years from 2015 to 2021.

b.       That the sponsor has provided financial assistance to the appellant since 2021.

c.        That there is regular and normal contact between the sponsor and the appellant.

Upper Tribunal remaking hearing

 

5.        The remaking hearing before the Upper Tribunal took place on 7 February 2025 at Field House.

 

6.        Mr Spurling adopted the grounds advanced before the FTJ, as did Ms Isherwood. In addition, Mr Spurling provided the Upper Tribunal with a schedule reflecting payments sent to the appellant from the sponsor for the period 15 December 2020 through to 19 August 2024. Two witnesses attended to give evidence: the sponsor and the appellant's sister. An interpreter in the Nepali language was present to assist both witnesses.

 

7.        At the outset, we asked the representatives if they agreed that in the event we found Article 8 was engaged it would be unnecessary for us to undertake a proportionality assessment. Mr Spurling agreed, however Ms Isherwood did not.

 

8.        The sponsor's statement dated 4 August 2023 was read into evidence and he confirmed the contents were true and correct. Ms Isherwood then undertook a lengthy cross-examination of the sponsor. She questioned if the appellant had ever been employed and whether he could find work cultivating and selling crops or as a labourer on one of the building projects near his home. The sponsor's evidence was that the appellant has never worked (although he had applied for some jobs with the help of family) and that jobs in Nepal were difficult to find. He also said that the appellant's "mentality has changed" since his divorce and he doesn't want to do the type of work Ms Isherwood suggested. Ms Isherwood also asked questions around the house the sponsor owned in Nepal, including which administrative ward it was located in (the "ward issue"). Various sources of evidence were discussed which suggested the sponsor's house was in different wards. Although the evidence was not clear on this, the sponsor appeared to suggest that he had always lived in the same house, but that the administrative designation of which ward that house was in had changed over time.

 

9.        Ms Isherwood questioned the sponsor about the financial assistance he provided to the appellant. The sponsor said he received a salary, which was reflected in the bank statements provided. He said that he provided the appellant with money on a monthly basis which he used for his daily living including food, taking the bus and for peoples' birthdays. Ms Isherwood questioned why receipts for those expenses had not been provided. The sponsor said that he hadn't been asked to provide receipts and, in any event, some of the appellant's expenses were not things for which receipts would be given.

 

10.    The sponsor was also asked about the contact he had with the appellant. He said that he spoke with the appellant every week, either once or twice. There was some confusion about the regularity of the contact reflected in the telephone call evidence provided, however this was resolved when it was identified that the evidence was out of sequence in the bundle.

 

11.    Mr Spurling did not ask any additional questions of the sponsor.

 

12.    The appellant's sister's statement dated 10 August 2023 was read into evidence and she confirmed the contents were true and correct. Ms Isherwood spent some time questioning the appellant's sister about the sponsor's house in Nepal and the ward issue. While the issue remained unclear, the appellant's sister gave evidence that she and the appellant had always lived in the same house and had grown up there. She said that the appellant had never worked, despite trying to find a job (including with the assistance of family members) and that jobs in Nepal were difficult to find. In terms of communicating with the appellant, she said that she would usually speak with him when the sponsor called him and sometimes she would speak with him on her own in her free time. Ms Isherwood asked why evidence of that contact had not been provided and the appellant's sister said she had not been asked to provide it.

 

13.    Mr Spurling asked the appellant's sister whether she had always lived in the same house in Nepal and she said she had. She said she knew her father had lived in another place before moving to the family home, but that was before she was born and she had no further information about that.

 

14.    In her submissions, Ms Isherwood argued that the appellant's claim should be dismissed in its entirety. She noted that the refusal letter raises concerns about how the appellant cared for himself and the lack of evidence around receipts for his living expenses. She said that the appellant was aware that he needed to provide evidence and that all the Upper Tribunal had before it is evidence of bank transfers. She submitted that the evidence around the appellant's financial circumstances was inconsistent. She said that the confusion around the ward issue had not been sufficiently rectified. She noted the sponsor's evidence that the appellant's mentality had changed since his divorce and said no medical evidence had been provided that he was unfit to work. She noted the preserved finding in relation to contact, and submitted that it did not go beyond normal contact and that the evidence of the sponsor and appellant's sister only "increased that finding." Ms Isherwood submitted that the Upper Tribunal could not be satisfied by the evidence that was before it.

 

15.    In his submissions, Mr Spurling argued that the Article 8 family life question was the determinative factor. He directed us to paragraphs 8 and 9 of the appellant's supplementary witness statement dated 10 August 2023. Those paragraphs deal with the financial support the appellant receives from the sponsor. Mr Spurling submitted that the appellant's evidence of what he spends is consistent with the payments sent to him by the sponsor. That alone, he submitted, is corroborative of family life. He went on to point to the preserved finding of contact between the sponsor and appellant and said the evidence is not inconsistent with that. He accepted there had been some confusion around the ward issue, however the appellant's sister's evidence was clear about where she and the appellant had lived their whole lives. Although no medical evidence had been provided, he said that the appellant has not argued he is medically unfit for work. He said that even if the unemployment was self-imposed, that was irrelevant to the question of whether or not the sponsor was supporting the appellant. He argued that on the balance of probabilities the Upper Tribunal could accept that the appellant has always lived in the sponsor's home, that the sponsor supports him, that they are in regular contact and that contact is likely to involve emotional support given he is unemployed and following his divorce. Mr Spurling submitted that is sufficient evidence of family life.

Burden of proof

16.    The burden of proof is on the appellant to satisfy the Upper Tribunal that he meets the requirements for entry clearance on the balance of probabilities.

Findings of fact and reasons

 

17.   The relevant question for the Upper Tribunal is whether Article 8 family life exists between the appellant and sponsor. That determination is to be made by assessing if there is "real, effective, or committed" support in accordance with Rai v Entry Clearance Officer, New Delhi [2017] EWCA Civ 320.

 

18.   There are a number of aspects of support which the appellant points to in his evidence, namely financial support from the sponsor, that he is living in the sponsor's home, regular communication between himself and the sponsor, and the emotional support which the sponsor provides. We consider each in turn.

 

19.    Financial support. There is a preserved finding from the FTJ that the sponsor has provided financial assistance to the appellant since 2021. Mr Spurling referred to paragraphs 8 and 9 of the supplementary witness statement of the appellant dated 10 August 2023, where he states:

 

[8] My parents have been supporting me financially from the UK. Since I am not employed, my father sends me monies every month so that I can sustain myself here. The amount that he sends normally ranges from 10,000 Nepalese rupees to 15,000 Nepalese rupees. He usually sends me monies through Western Union Money Transfer. I use this fund to maintain my monthly expenses. The frequency of the transfer depends on the financial condition of my father. I have collected all the available receipts of the money transfer along with this appeal. The remittance slips that I have provided mentions my address as ward no 1, Jhapa which is a typo error. My address is ward no 5 and most of the receipts mentions my actual address while some of the receipts mentions ward no 1 which is incorrect.

 

[9] The amount that my father sends is used on my monthly expenses. I spent about 1,000 Nepalese rupees on my water and electricity bills, I spend about 4,000-5,000 Thousand Nepalese rupees on my food, I spend about 1,000-3,000 thousand household supplies, I spend about 1,000 on my mobile phone and further 3,000-4,000 thousand Nepalese rupees on miscellaneous expenses like medicine, travel, festivals, clothes and other. To be precise, my monthly expenses come to be around 10,000 to 14,000 Nepalese rupees.

 

20.    Mr Spurling took us to the schedule of payments which he provided at the start of the hearing. He submitted that the schedule shows a regular pattern of payments which is consistent with what the appellant said his monthly expenses are (between NPR 10,000 and NPR 14,000). The amounts of the payments from the sponsor are not the same each time, nor are they made on the same dates, however they do tend be within the range suggested by Mr Spurling. While there are some months with no payments, there are other months with payments well above the range (for example on 5 December 2021 an amount of NPR 65,889.00 and 10 July 2022 an amount of NPR 29,785.28). The evidence was consistent that the appellant has never worked and continues to be unemployed. We accept Mr Spurling's submission that the reason for the appellant's unemployment is irrelevant for the purposes of Article 8. Based on the evidence provided, we find that the appellant relies on the sponsor for financial support.

 

21.    Living situation. The evidence of the appellant, his sister and the sponsor is that the appellant has lived in his father's home all of his life, including while he was married to his wife. While much time during the hearing was spent on the ward issue it is difficult to understand the relevance of this. We do not think it implausible to accept the sponsor's evidence that the administrative designation for the wards has changed over time. Even in the event we did not accept that explanation, it is not clear where that takes us in terms of the test for family life articulated in Rai. Based on the evidence provided, we find that the appellant does live in the home of the sponsor and he is reliant on that accommodation given his circumstances.

 

22.    Regular communication. There is a preserved finding from the FTJ that there is regular and normal contact between the sponsor and the appellant. The evidence of the appellant, his sister and the sponsor are consistent on this point. While Ms Isherwood questioned the witnesses around their contact with the appellant and submitted that the contact did not go beyond the normal, that is simply consistent with the preserved finding. Neither the appellant nor Mr Spurling sought to make more of the contact. Based on the evidence provided, we find that there is regular and normal contact between the sponsor and the appellant.

 

23.    Emotional support. Mr Spurling argued that the regular communication between the sponsor and appellant is likely to involve emotional support given the appellant is unemployed and following his divorce. The contact and financial support between the appellant and sponsor has been consistent and it is clear that the appellant is dependant on the sponsor. It follows (at least on the balance of probabilities) that that support includes some emotional support. Based on the evidence, we find that there is emotional support between the sponsor and the appellant.

 

24.    When the above factors are taken together, it is clear that there is real, effective or committed support between the sponsor and the appellant, such as to constitute family life under Article 8.

 

25.    Ms Isherwood's view was that the Upper Tribunal would still need to undertake the proportionality assessment in the event we found family life under Article 8. In the decision of Ghising and others [2013] UKUT 567, the headnotes read:

 

[4] Accordingly, where it is found that Article 8 is engaged and, but for the historic wrong, the Appellant would have been settled in the UK long ago, this will ordinarily determine the outcome of the Article 8 proportionality assessment in an Appellant's favour, where the matters relied on by the Secretary of State/entry clearance officer consist solely of the public interest in maintaining a firm immigration policy.

 

[5] It can therefore be seen that Appellants in Gurkha (and BOC) cases will not necessarily succeed, even though (i) their family life engages Article 8(1); and (ii) the evidence shows they would have come to the United Kingdom with their father, but for the injustice that prevented the latter from settling here earlier. If the Respondent can point to matters over and above the public interest in maintaining a firm immigration policy, which argue in favour of removal or the refusal of leave to enter, these matters must be given appropriate weight in the balance in the Respondent's favour. Thus, a bad immigration history and/or criminal behaviour may still be sufficient to outweigh the powerful factors bearing on the Appellant's side of the balance.

 

26.    We found that Article 8 family life is present. No evidence was put forward by the respondent, nor were any submissions advanced, in relation to why the proportionality assessment should be determined against the appellant beyond it being in the public interest to maintain effective immigration controls. We therefore find the proportionality assessment weighs in the appellant's favour.

Notice of Decision

 

The appeal is allowed on human rights grounds.

 

 

 

N Hills

 

Deputy Judge of the Upper Tribunal

Immigration and Asylum Chamber

 

 

14 February 2025