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

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IN THE UPPER TRIBUNAL IMMIGRATION AND ASYLUM CHAMBER	Case No : UI-2024-004481 UI-2024-004482; UI-2024-004483 UI-2024-004484
	First-tier Tribunal Nos: HU/63056/2023; HU/63057/2023; HU/63058/2023; HU/63059/2023

 

THE IMMIGRATION ACTS

Decision & Reasons Issued:

On the 17 February 2025

 

Before

 

UPPER TRIBUNAL JUDGE SHERIDAN

DEPUTY UPPER TRIBUNAL JUDGE CHAPMAN

 

Between

 

PREM BAHADUR THAPA

SAV DHAN SING THAPA

BHAKAT MAYA THAPA

INDRA MAYA THAPA

(NO ANONYMITY ORDER MADE)

Appellant

v

 

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation :

For the Appellant: Mr Kashif, Legal Representative, Bond Adams LLP solicitors

For the Respondent: Mr N. Wain, Senior Home Office Presenting Officer

 

Heard at Field House on 3 February 2025

 

 

DECISION AND REASONS

 

1.       The resumed hearing of the appeal took place following an error of law hearing which resulted in a decision by Upper Tribunal Judge Sheridan dated 13 December 2024 setting aside the decision of the First tier Tribunal Judge. This decision is appended.

 

2.       The key reason for setting aside the First tier Tribunal's decision was that the judge had not explained why, if living together as a family unit prior to coming to the UK in 2010 meant that family life was engaged, it did not exist in 2024 when the appellants and sponsor had also been living together as a family unit. UTJ Sheridan further found that the failure to give a reason for treating the cohabitation ending in 2010 differently to the cohabitation ending in 2024 was a deficiency in reasoning that amounts to a legal error.

 

3.       At the error of law hearing, the Presenting Officer then appearing for the Home Office submitted that the Respondent should have the opportunity to cross-examine the Sponsor. However, the Sponsor returned to Nepal on 21 August 2024 and has remained there since. In those circumstances and given that the FCDO have not been able to obtain the permission of the Nepalese authorities to allow individuals in Nepal to voluntarily give evidence from Nepal it was not possible for the Sponsor to give evidence before the Upper Tribunal. The Sponsor is 95 years of age and suffers from various health complaints. In his supplementary statement at AB 24 submitted along with a rule 15(2A) application he states that he is bedridden and cannot come to the UK for the hearing and due to his age and health he cannot stay in the UK without his children's assistance.

 

4.       In these circumstances I consider that it is reasonable for the Sponsor not to travel against to the UK for the resumed hearing, albeit that the Respondent would have wished to cross-examine him. In any event, as is made clear below, I do not consider that it would have made any material difference to the outcome of the appeal.

 

5.       We heard submissions from Mr Kashif on behalf of the Appellants who submitted that the Sponsor continues to live in Nepal with his children who are dependent on him for financial support and that the sponsor is still receiving his pension. Mr Wain submitted on behalf of the Home Office that the original refusal decisions disputed that family life was engaged and that relationships which went over and above normal emotional support had been shown to exist. He submitted that there was a lack of evidence as to financial support, in particular in the period between 2010 and 2018 when the Sponsor returned to Nepal. Mr Wain submitted that there was the same gap in evidence in relation to emotional support during that period. However, Mr Wain did not dispute that the family home in Nepal was owned by the Sponsor nor that he had been living there with the Appellants since 2018.

 

6.       The accepted and preserved findings of fact are that the Sponsor has been living with his children, the Appellants, in Nepal since 2018 aside from the brief visit to the United Kingdom in August 2024 to attend the First tier Tribunal appeal hearing. He has remained living in the family home in Nepal. and the Appellants provide him with physical care and support.

 

7.       In these circumstances, I find that the threshold for family life between the Sponsor and his children, the Appellants, is clearly met, based on more than 6 years continuous cohabitation as a family unit in the family home owned by the Sponsor. Even taking account of the absence of evidence of financial and emotional support between 2010 and 2018, which may mean that family life was not maintained during this time, I find on the balance of probabilities that it was, given that it has been expressly accepted that family life was established up to 2010 and since 2018.

 

8.       It is unusual to have a Gurkha case where the Sponsor and Appellants are living together and have done for a substantial period of time. The finding that article 8(1) ECHR is engaged is dispositive of the appeal, which is allowed.

 

 

Rebecca Chapman

 

Deputy Upper Tribunal Judge Chapman

 

7 February 2025