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

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IN THE UPPER TRIBUNAL IMMIGRATION AND ASYLUM CHAMBER	Case No: UI-2024-005621 (1) UI-2024-005623 (2)
	First-tier Tribunal No: HU/62479/2023 LH/05636/2023 HU/62480/2023 LH/05635/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:

 

20 ^th February 2025

 

Before

 

UPPER TRIBUNAL JUDGE HOFFMANN

DEPUTY UPPER TRIBUNAL JUDGE BURGHER

 

Between

 

(1) MISS KABITA LIMBU

(2) MISS ARCHANA LIMBU

Appellant

and

 

SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation :

For the Appellant: Mr L Simak, Counsel, instructed by Legit Solicitors

For the Respondent: Ms A Nolan, Senior Presenting Officer

 

Heard at Field House on 6 February 2025

 

 

DECISION AND REASONS

1.              The first Appellant is a female Nepalese national born on 1 February 1988.

2.              The second Appellant is a female Nepalese national born on 24 November 1990. 

3.              This is the decision of the panel and includes the contributions of both judges.

4.              There has been no request to anonymise the parties.  

Background

5.              On 18 August 2023, the appellants made applications for entry clearance as adult dependent children of their father (Sponsor) who is a former member of the Brigade of Gurkhas discharged before 1997. Their applications for entry clearance, on grounds including Article 8 European Convention on Human Rights, were refused by the Respondent by letters dated 2 October 2023.

6.              The Appellants appealed the decisions against them on 17 October 2023. The Respondent undertook a review of the refusal decisions and, by letters dated 12 June 2024, maintained the position refusing entry clearance. In summary, insofar as is relevant to this appeal, the Respondent maintained that the Appellants had not established that family life was established between them and the Sponsor sufficient to engage Article 8; and even if Article 8 were engaged, the decisions were proportionate as the historic injustice had not prevented the Appellants from leading independent lives.

The Appeal to the First-tier Tribunal

7.              FtT Judge Richards-Clarke heard the Appellants appeals on 20 September 2024 and dismissed them by decision and reasons sent on 28 September 2024. The judge decided:

31. ..I do not find that there is "real" or "committed" or "effective" dependency or support. Nor do I find that there is evidence of "exceptional dependence."

32. I am therefore not satisfied that the family life rights of the first appellant and the second appellant are sufficient to engage Article 8(1). In these circumstances, and in accordance with the relevant caselaw, I have therefore not continued to conduct a proportionality assessment, taking account of the effect of the historic injustice in accordance the Article 8 (2).

8.              The Appellants appealed to the Upper Tribunal by notice dated 22 October 2024. FtT Judge Mulready granted permission to appeal on 4 December 2024.

The Appeal to the Upper Tribunal

9.              At the outset of the hearing, Ms Simak confirmed that all 4 grounds of appeal were being maintained. In summary the grounds were that the FtT judge erred in the following respects:

9.1   Misdirection on Emotional and Financial Dependency

9.2   Failure to Properly Consider 'Historic Injustice'

9.3   Failure to Consider Cultural Context.

9.4   Inadequate Consideration of Proportionality under Article 8(2)

10.          During the hearing we were referred to relevant pages in a 273-page consolidated pdf bundle.

11.          The hearing bundle included witness statements from the Appellants and the Appellants father, Mr Aitaman Limbu (Sponsor) evidence of Whatsapp messages and divorce settlement documents relating to the Appellants. Ms Simak led her submissions by emphasising historic injustice before developing the grounds of appeal.

12.          In respect of ground 1, which Ms Simak submitted should be considered along with ground 3, it was contended that the FtT judge misdirected themselves on the law when assessing emotional and financial dependency. She submitted that the judges findings were irrational in that the finding that there was no family life was contrary to the evidence presented. She further submitted that there was a lack of explanation for the judges conclusions in respect of this issue. Specifically, she maintained that the judges indication that the sums transferred where modest and findings that the support that the Sponsor was giving amounted to a misunderstanding of the facts and a misunderstanding of the law as there was no minimum amount mandated for financial dependency. Ms Simak stated that given the regular contact, the support their father provided during their divorces, their return to the family home, the recent death of their mother and their father's ill health and age were all factors that ought to have clearly demonstrated real, committed and effective support was being provided.

13.          In respect of ground 2 Ms Simak submitted that the judge failed to properly consider historic injustice and its impact on proportionality assessment in respect of Article 8(2) considerations.

14.          In respect of ground 3, considered with ground 1, it was submitted that the judge gave inadequate consideration of cultural context and the relevance of Nepalese family dynamics when undertaking the dependency assessment for family life. Ms Simak accepted that save for the witness statements, there was no objective evidence before the judge to establish elements of Nepalese family culture. The grounds of appeal to the Upper Tribunal state a paragraph 28 that the Appellants provided extensive evidence of the family's close-knit structure and cultural expectations, particularly in relation to the obligation to care for elderly parents. The Judge overlooked this context in its evaluation, rendering its conclusion on dependency inconsistent with the approach mandated in Pun [15]. It was contended that the failure overlooked the reality that in Nepalese culture, such familial duties are both binding and emotionally sustaining, which should contribute to recognising family life under Article 8(1).

15.          Whilst Ms Simak sought to rely on the case of Pun v SSHD [2017] EWCA Civ 2106 to develop this point we were not assisted by Pun in this context, however Huang v SSHD [2007] UKHL was relevant in this regard.

16.          In respect of ground 4 there was no Article 8(2) consideration or proportionality assessment undertaken by the judge. Ms Simak stated that this ground concerning inadequate Article 8.2 proportionality assessment was interconnected with other the judge failure to find that there was family life which should have been found.

17.          Ms Nolan, on behalf of the Respondent, submitted that in relation to ground 1 that the judge undertook a holistic assessment of both the financial and emotional elements of the appeal when looking at whether Article 8(1). is engaged.

18.          For financial dependency, Ms Nolan referred to the judge's findings at paragraph 21 - 23 setting out the money transfers for both Appellants and the financial assistance provided by their father. It was submitted that the judge assessed the evidence finding that it was sporadic with lengthy periods where no money was sent. She referred to the judge's finding that the Appellants did not submit evidence about the employment status or financial circumstances of their brothers and there was a general lack of information about the Appellants' elder brothers. It was stated that the lack of emotional and financial dependency was a central issue in the appeal. Financial dependency was therefore clearly raised and considered, and the Appellants position was not accepted.

19.          For emotional dependency, Ms Nolan referred to the judges findings at paragraph 24 - 26 of the decision. The judge considered the contact and the visits and concluded that the evidence relied on of calls and 3 visits does not support a finding of emotional dependence. The judge accepts that following the divorce, they return to live in the family home, and that they now live there with their two elder brothers. The judge notes the ages of both of her parents, and then says that as adult children who have each formed a separate family life of their own it has not been established that family life exists between Appellants and their father.

20.          Ms Nolan stated that the judge finds that the Appellants are in the family home with their older brothers. The judge also considered matters relating to the health of the sponsor heightened the emotional dependency and at paragraph 15 of the decision the judge accepts that the sponsor is recently widowed in poor health, and that he would like dependents to join in the UK. However, the judge also says that it is not disputed that he has two daughters and a son in the United Kingdom, and that the evidence before him did not support a finding that his health and care needs are not currently being met.

21.          Ms Nolan highlighted that the judge referred to the relevant case law at paragraph 29 of the decision and as such had the proper legal considerations in mind when concluding that there was no real or committed or effective dependency or support. The judge was entitled to come to this conclusion on the evidence.

22.          In respect of ground 3, failing to consider the cultural context, Ms Nolan stated that this was properly viewed as an attack on the judge's conclusions. Ms Nolan stated that the judge had considered that the divorce happened, and that the Appellants were back in the family home movement as part of the cultural context of the Nepalese family and now that they are no longer married, they return to the family home. In these circumstances, whilst there was not country report it was submitted that the judge was clearly aware of the cultural context in Nepalese cases.

23.          In relation to ground 2 and ground 4, Ms Nolan submits that there is no error of law as proportionality assessment for Article 8(2) was unnecessary given the finding that there was no family life for the purposed of Article 8(1).

The Legal Framework

24.          The Upper Tribunal is confined to considering whether there are errors of law in FtT decision. In R (Iran) & Ors v SSHD [2005] EWCA Civ 982 Brooke LJ summarises what amounts to an error of law at paragraphs 9 and 10

9. When the court gave this guidance in Subesh, it was aware that it would not be of any relevance to an appellate regime in which appeals were restricted to points of law. It may be convenient to give a brief summary of the points of law that will most frequently be encountered in practice:

i) Making perverse or irrational findings on a matter or matters that were material to the outcome ("material matters");

ii) Failing to give reasons or any adequate reasons for findings on material matters;

iii) Failing to take into account and/or resolve conflicts of fact or opinion on material matters;

iv) Giving weight to immaterial matters;

v) Making a material misdirection of law on any material matter;

vi) Committing or permitting a procedural or other irregularity capable of making a material difference to the outcome or the fairness of the proceedings;

vii) Making a mistake as to a material fact which could be established by objective and uncontentious evidence, where the appellant and/or his advisers were not responsible for the mistake, and where unfairness resulted from the fact that a mistake was made.

 

10. Each of these grounds for detecting an error of law contain the word "material" (or "immaterial"). Errors of law of which it can be said that they would have made no difference to the outcome do not matter. This need to identify an error of law which would have made a material difference to the outcome...

25.          Article 8 of the European Convention of Human Rights states:

8 Right to respect for private and family life

(1) Everyone has the right to respect for his private and family life, his home and his correspondence.

(2) There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

26.          Establishing that there is family life for the purposes of Article 8(1) is a necessary precondition to be satisfied in order for the Article 8(2) proportionality balancing exercise to be applicable. In the Court of Appeal case of Patel v Entry Clearance Officer (Mumbai) [2010] EWCA Civ 17 Sedley LJ stated:

14. You can set out to compensate for a historic wrong, but you cannot reverse the passage of time. Many of these children have now grown up and embarked on lives of their own. Where this has happened, the bonds which constitute family life will no longer be there, and art 8 will have no purchase. But what may constitute an extant family life falls well short of what constitutes dependency, and a good many adult children - including children on whom the parents themselves are now reliant - may still have a family life with parents who are now settled here not by leave or by force of circumstances but by long-delayed right. That is what gives the historical wrong a potential relevance to art 8 claims such as these. It does not make the Convention a mechanism for turning the clock back, but it does make both the history and its admitted injustices potentially relevant to the application of art 8(2).

15. As the individual cases to which I now turn illustrate, the effect of this is to reverse the usual balance of art 8 issues. By the time they come to seek entry clearance, adult children may well no longer be part of the family life of British overseas citizens who have finally secured British citizen ship. If so, the threshold of art 8(1) will not have been crossed and the proportionality of excluding them will not be an issue. If, however, they come within the protection of art 8(1), the balance of factors determining proportionality for the purposes of art 8(2) will be influenced, perhaps decisively, by the fact (if it is a fact) that, but for the history recounted in NH (India), the family would or might have settled here long ago.

27.          When considering the application of Article 8(1) the following cases are relevant.

28.          Patel and others v Entry Clearance Officer, Mumbai [2010] EWCA Civ 17, Sedley LJ at paragraph 14 outlined above.

29.          In Kugathas v Secretary of State for the Home Department [2003] EWCA Civ 31, Sedley LJ said at paragraph 17

'if dependency is read down as meaning 'support', in the personal sense, and if one adds, echoing the Strasbourg jurisprudence, 'real' or 'committed' or 'effective' to the word 'support', then it represents ... the irreducible minimum of what family life implies'.

30.          Arden LJ said at paragraph 24 and 25 of her judgment in Kugathas that:

24 There is no presumption that a person has a family life, even with the members of a person's immediate family. The court has to scrutinise the relevant factors. Such factors include identifying who are the near relatives of the appellant, the nature of the links between them and the appellant, the age of the appellant, where and with whom he has resided in the past, and the forms of contact he has maintained with the other members of the family with whom he claims to have a family life.

25 Because there is no presumption of family life, in my judgment a family life is not established between an adult child and his surviving parent or other siblings unless something more exists than normal emotional ties: see S v United Kingdom (1984) 40 DR 196 and Abdulaziz, Cabales and Balkandali v United Kingdom [1985] 7 EHRR 471. Such ties might exist if the appellant were dependent on his family or vice versa. It is not, however, essential that the members of the family should be in the same country. The Secretary of State accepts that that possibility may exist, although in my judgment it will probably be exceptional. Accordingly there is no absolute rule that there must be family life in the United Kingdom, as the Immigration Appeal Tribunal held.

31.          In Pun v SSHD [2017] EWCA Civ 2106 the Court of Appeal held:

20. The critical feature for the right to rely on the historic injustice is dependency. Whether one categorises any particular candidate for dependency as having a family life or a private life may well be "arid and academic" but the question of dependency is vital. Both the FTT and the Upper Tribunal (paras 14-15 and 36 respectively) have found that there is no dependency and that, to our mind, prevents the historic injustice from having the same considerable weight as it must have for adults dependent on their parents at the time when the application is made.

21. Otherwise all children of Gurkhas would be strong candidates for settlement regardless of their tie with their parents. It would, indeed, be difficult to say why grandchildren should not also have the right to settle. Mr Jesurum sought to draw a distinction between private life where there are "bonds of practical support" between a Gurkha father and his adult child on the one hand and a purely private life on the other. But drawing a distinction between different kinds of private life would be as "arid and academic" as drawing a distinction between family and private life in the first place .

32.          Neither reaching the age of majority nor voluntary separation necessarily ends family life within the meaning of article 8. However, a degree of emotional dependence must continue, which turns on whether the appellant has had and continues to enjoy support which can properly be described as 'real, or effective or committed,' pursuant to the decision of the Court of Appeal in Rai v Entry Clearance Officer Delhi [2017] EWCA Civ 320. The support provided does not need to be of necessity or irreplaceable. Each case must be analysed on its own facts in order to decide whether family life exists within the meaning of article 8(1).

33.          In Huang v SSHD [2007] UKHL 11 Lord Bingham stated at paragraph 18

Their family, or extended family, is the group on which many people most heavily depend, socially, emotionally and often financially. There comes a point at which, for some, prolonged and unavoidable separation from this group seriously inhibits their ability to live full and fulfilling lives. Matters such as the age, health and vulnerability of the applicant, the closeness and previous history of the family, the applicant's dependence on the financial and emotional support of the family, the prevailing cultural tradition and conditions in the country of origin and many other factors may all be relevant. Matters such as the age, health and vulnerability of the applicant, the closeness and previous history of the family, the applicant's dependence on the financial and emotional support of the family, the prevailing cultural tradition and conditions in the country of origin and many other factors may all be relevant.

34.          In the Upper Tribunal case of Ghising (family life - adults - Gurkha policy) [2012] UKUT 160 Lang J accepted at paragraph 56 that the judgment in Kugathas had been 'interpreted too restrictively in the past and ought to be read in the light of subsequent decisions of the domestic and Strasbourg courts', and at paragraph 60 that 'some of the [Strasbourg] Court's decisions indicate that family life between adult children and parents will readily be found, without evidence of exceptional dependence'. At paragraph 61 - 62 Lang J held:

61 Recently, the ECtHR has reviewed the case law, in AA v United Kingdom (Application no 8000/08), finding that a significant factor will be whether or not the adult child has founded a family of his own. If he is still single and living with his parents, he is likely to enjoy family life with them.

62 The different outcomes in cases with superficially similar features emphasises to us that the issue under Article 8(1) is highly fact-sensitive. In our judgment, rather than applying a blanket rule with regard to adult children, each case should be analysed on its own facts, to decide whether or not family life exists, within the meaning of Article 8(1). 

35.          In the Court of Appeal case in Gurung v SSHD [2013] EWCA Civ 8 Lord Dyson MR (at paragraph 45), endorsed Ghising and stated that 'the question whether an individual enjoys family life is one of fact and depends on a careful consideration of all the relevant facts of the particular case'. In some instances, 'an adult child (particularly if he does not have a partner or children of his own) may establish that he has a family life with his parents'. Lord Dyson M.R. said, '[it] all depends on the facts'.

36.          The following cases are relevant when considering the Article 8(2) proportionality assessment.

37.          In Gurung, the Court of Appeal held that if a Gurkha could show that but for the historic injustice he would have settled in the UK at a time when his now adult dependent child would have been able to accompany him as a dependent child under the age of 18, that is strong reason to find it proportionate to permit the child to join his parent in the UK. The historic wrong suffered by Gurkha ex-servicemen should be given substantial weight.

38.          In Ghising and others (Gurkhas/BOCs: historic wrong: weight) [2013] UKUT 567 (IAC), the Upper Tribunal held that where article 8 is engaged and that but for the historic wrong the appellant would have been settled in the UK long ago, that fact would ordinarily determine the outcome of the article 8 proportionality assessment in the appellant's favour, where the public interest factors relied on by the respondent consists solely of the public interest in maintaining a firm immigration policy.

The Burden of proof

39.          The burden of proof is on the Appellants and the standard of proof required is the balance of probabilities. It is for the respondent to establish that an interference with a protected private or family life is proportionate.

Conclusions

40.          In respect of ground 1 the judge's findings on financial dependency and emotional dependency are clear and reasoned. We therefore do not accept that the judges conclusions are irrational.

41.          Whilst the judge also properly refers to the relevant caselaw in determining this matter, by referring to seeking evidence of exceptional dependence at paragraph 31 the judge made a material misdirection of law. Ghising (family life - adults - Gurkha policy) and Gurung indicate that family life between adult children and parents will readily be found, without evidence of exceptional dependence.

42.          Further, we accept that there is an absence of consideration and analysis by the judge in assessing the extent of the support the father provided the Appellants in respect of their divorces, and any contextual relevance of Nepalese culture and ongoing relationship and duties of children. This was a live matter before the judge. Paragraph 23 of the Appellant's skeleton argument before the judge states the following relevant matters:

23

(a) The Appellants have since divorced and they continue to be dependent on the Sponsor financially and emotionally (A1WS/6, 8, 10-11, 14-15; A2WS/6, 8, 10-11, 14-15; SWS/6, 8, 10-11, 15-16; Order from Sankhuwasaba District Court in relation to the First Appellant Divorce, AB/18-20; Divorce Registration Certificate of First Appellant, AB/21; Order from Sankhuwasaba District Court in relation to the Second Appellant Divorce, AB/43-45; and Divorce Registration Certificate of Second Appellant, AB/46);

(g) The Appellants feel that it is not only their duty to take care of their father, but also because of the deep bond they share (A1WS/20; A2WS/20; SWS/21; Medical Report for the Sponsor, AB/87-95; and Letter from Kent County Council in relation to Adult Social Care and Health, AB/ 96-102);

h) the Appellants want to work and support their father with their income. While the Appellants will work and will be able to contribute to the economy by paying taxes, the family will be reunited.

j) the continuing emotional ties are consistent with Nepalese culture. Cultural factors fall to be taken into account (Huang v SSHD [2007] 2 AC 167 per Bingham LJ .

43.          Following R (Iran) we conclude that the failure by the judge to consider these matters, or provide reasoning as to how they were considered in the dependency assessment amounts to an error of law. Therefore grounds 1 and 3 succeed and the decision is set aside on these grounds.

44.          We do not conclude that, having found that there was no family life, it was necessary for the judge to consider Article 8(2) proportionality. Patel v Entry Clearance Officer (Mumbai). Therefore ground 2 and ground 4 are dismissed.

45.          Ms Simak invited the Upper Tribunal to remake the decision. Ms Nolan invited the Upper Tribunal to remit to the First Tier Tribunal. There is likely to be extensive further evidence on dependency, which may extend to the Appellant's elder brother's position and the Appellants financial position. There may also be country reports on the Nepalese culture. Should dependency be established an assessment of Article 8(2) proportionality will be considered and no assessment has been made in this matter so far. In all the circumstances, we conclude that the proper course is to remit rather than to remake the decision on the appeal in this Tribunal. In so finding, we have taken account of the decisions in AEB v SSHD [2022] EWCA Civ 1512; [2023] 4 WLR 12 and Begum (remaking or remittal) Bangladesh [2023] UKUT 46; [2023] Imm AR 558.

Notice of Decision

The decision of the First-tier Tribunal involved the making of an error on a point of law. We set aside that decision and remit the appeal to the FtT to be heard afresh by a judge other than Judge Richards-Clarke .

 

 

Benjimin Burgher

 

Deputy Judge of the Upper Tribunal

Immigration and Asylum Chamber

 

7 February 2025