[2025] UKUT 00150 (IAC)

On 6 April 2023 the respondent refused Mr Rai’s application for entry clearance as the adult dependent child of a former member of the Brigade of Gurkhas. The appellant’s appeal against that decision was dismissed by a judge of the First-tier Tribunal (“FtT”) on 22 January 2024. In summary, the judge found that notwithstanding the appellant’s marriage, he was financially supported by his father. However, by the time of the hearing before the FtT, the appellant’s father had passed away and the appellant had of course failed to establish ‘a current and ongoing family life between himself and his deceased father’. The judge said he had no hesitation in finding that there were emotional ties between the appellant, his mother and sister, but nothing more. The judge therefore found that Article 8 was not engaged on family or private life grounds.

The appellant applied for permission to appeal to the Upper Tribunal. The grounds of appeal dated 12 February 2024 claimed:

“1.

[The judges’s] determination is vitiated by one or more errors of law as follows.

2.

In paragraphs 12 to 14 of his determination the Judge concluded that - even though the Appellant did indeed satisfy the relevant immigration rules at the date of application / date of decision - nonetheless this was not relevant to his assessment of the article 8 claim as at the date of the hearing before him, on account of the intervening death of the Appellant’s father.

3.

However, para 23 of Mostafa 2015 UKUT 112 remains authority for the proposition that the ability to satisfy the immigration rules “…may be capable of being a weighty factor in an appeal based upon human rights …. which must be weighed with the other facts in the case.”

4.

Moreover, the immigration rules themselves were changed between the date of decision and the date of the hearing. Thus, on 5 October 2023 Appendix Gurkha was introduced which – unlike the former rules under Annex K – no longer requires the former Gurkha parent of a relevant child to still be alive at the date of application: see AF(GHK)12.3.

5.

Which being so the Judge misapplied the law and/or failed to take into account all relevant considerations.

6.

In addition, the Judge’s determination is based upon significant factual errors concerning relevant dates. Thus, the Judge wrongly states:

a)

in paragraph 1 that the Respondent’s refusal decision is dated 12 April 2023, when in fact it was dated 6 April 2023, and

b)

in paragraph 2 that the Appellant’s parents and sister were granted a settlement visa on 6 April 2022 (thereby repeating an error first made by the Respondent in the Appellant’s refusal decision), when in fact they were granted settlement by various decisions also dated 6 April 2023, and

c)

in paragraph 3 that the Appellant’s mother and sister visited the Appellant in Nepal in January 2024, whereas they in fact visited him in the period after his father’s death 8 on 8 November 2023 and ending only a few days before the appeal hearing on 9 January 2024.

7.

The Judge thereby failed to appreciate that the applications of the Appellant, his father, mother, and sister were all made simultaneously and dealt with simultaneously by the Respondent, being a relevant requirement under the relevant immigration rules.

8.

Moreover, the Judge then failed to appreciate that the Appellant and his parents and sister all lived with him in the same house in Nepal until very recently, specifically 30 June 2023 (when they entered the UK), and then all soon thereafter returned to live with him – apart from his father – after the father’s death. Further that the only reason that they were not still living with the Appellant at the date of his appeal hearing was because they had been forced to return to the UK to give oral evidence at that hearing.

9.

The Judge thereby by necessity failed to take into account all relevant factors pertaining to the nature and depth of the relevant family relationships.

10.

Moreover, the Judge further failed to take into account whatsoever the following further significant matters concerning financial support being provided by his surviving family in the UK:

a)

the Appellant remains living rent free in the family home in Nepal, the same as he always has and – on the evidence – as he always will be allowed to so do. Until his father’s death this was due to the support of his father, the owner of the house. Thereafter it is due to the support of his mother who has inherited the house – as she stated in her oral evidence at the appeal hearing - from her late husband;

b)

the Appellant’s huge legal costs of making the initial application in February 2023 and then paying for his appeal up to and including the appeal hearing itself on 9 January 2024 were and remain wholly funded directly and indirectly (by their guaranteeing his debts to neighbours) by his family in the UK. In which regard the Judge ignored all refences to the payment of his legal costs within the costs of the 4 joint applications, the same issue being expressly raised in the various witness statements of the Appellant, his late father and his mother, and then supplemented by oral evidence at the appeal hearing itself.

11.

In addition, the Judge failed to take into account the evidence of near daily (and sometimes twice daily) phone calls between the Appellant and his family in the UK, during such times as they have been living in different countries, such evidence being set out in the various witness statements and also by the supporting documents in the Appellant’s bundle.

12.

Which being so the Judge by necessity failed to take into account all relevant evidence relating to the nature and depth of financial and emotional support being provided to (and by) the Appellant as at the date of the appeal hearing.

13.

By reason of the foregoing the Judge has failed to give any adequate reasons why he has refused to accept the existence of ongoing family life between the Appellant and his UK based family, and why he has refused the appeal under article 8. Further or alternatively, he has failed to take into account all relevant circumstances and/or he has reached a perverse conclusion.”

Permission to appeal was granted by another judge of the FtT on 15 March 2024 “on the first ground”. He said:

“2.

The grounds assert that the Judge erred in making material errors of law by:

a)

Failing to take into account that the Immigration Rules had changed during the period between the application and the decision under appeal and the fact that the appellant met the relevant Rules

b)

By making factual errors in the decision and reasons.

c)

By failing to give adequate reasons for rejecting the appeal under Article 8

3.

The first ground raises an arguable material error of law if it is shown that the appellant met the Immigration Rules and that appropriate weight was not given to this in the decision.”

The appellant renewed the application for permission to rely upon the remaining grounds to the Upper Tribunal. The appellant said:

“2.

… it is respectfully asserted and/or repeated that the ambit of the forthcoming appeal ought properly to be wider than is currently permitted.

3.

In particular, by finding that “…the Appellant has failed to establish a family life and therefore Article 8 is not engaged” (para 17) [the judge] reached a finding of fact on this crucial issue that is vitiated by one or more errors of law as follows:

a)

he failed to identify, let alone to apply, the correct legal test for the existence of such family life, namely “…effective, real or committed support”: see Uddin 2020 EWCA Civ 338 at paragraph 40;

b)

further or alternatively he actively applied (para 16) a narrower and thus incorrect legal test by his use of the words “…failed to show that he is financially and (own emphasis applied) emotionally dependent on his mother and sister…”. Thus see e.g. Rai v ECO 2017 EWCA Civ 320 at para 17 “…what may constitute an extant family life falls well short of what constitutes dependency…”

c)

he failed to identify all relevant background circumstances, including – as per Rai again at para 17: “…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 other members of the family with whom he claims to have a family life.” See also para 40 again of Uddin: “…continuing cohabitation after adulthood will be suggestive of ongoing real, effective or committed support which is the hallmark of a family life”;

d)

further or alternatively, he failed to take into account all material considerations namely the facts that:

i)

the Appellant was still a young man in his 20’s who had lived with his mother and sister in the family home throughout all of his life except the short period from 30 June 2023 (when they entered the UK) till shortly after his father’s death on 8 November 2023, plus the further miniscule period of literally approximately one week immediately preceding the appeal hearing on 8 January 2024 (for which they had returned to the UK in order to give evidence at that hearing);

ii)

the Appellant was living rent free in the family house in Nepal which since his father’s recent death now belonged to his mother (as per her evidence at the hearing);

iii)

on the available evidence, both written and oral, he was wholly reliant on his UK family for the payment of his past and continuing legal costs, running into many thousands of pounds sterling, of and occasioned by both his immigration application and subsequent appeal – including the costs of his legal representation at the appeal hearing on 8 January 2024;

iv)

the Appellant had applied simultaneously with his mother and sister to settle in the UK and using the funds secured by a joint loan taken out by his parents;

v)

there was not simply some mere ongoing limited “…contact with his mother and sister…” (para 16) but rather on the evidence the Appellant and his mother and sister were still incredibly close to each other, as evidenced by where they had been jointly living, the impact of the recent death of their father, and the daily or even twice daily phone calls – according to the written and oral evidence - between them all in those brief periods when they were not actually cohabiting.

e)

further or alternatively he actively took into account inaccurate and/or irrelevant considerations in that:

i)

he wrongly asserted in para 2 that the Appellant’s mother and sister were granted settlement in the UK on 6 April 2022 when in fact it was on 6 April 2023, and

ii)

he wrongly asserted in para 3 that the mother and sister “visited” him (wrongly called “the sponsor”) only in “January 2024”;

iii)

he thus apparently considered that any close contact and cohabitation between the claimed family members had ended in April 2022, when in fact it had continued until the week immediately preceding the appeal hearing.”

On 24 May 2024, Upper Tribunal Judge Blundell considered the renewed application for permission and said:

“1.

The grounds of appeal against [the FtT Judge’s] decision are poorly pleaded, in that they are not clearly delineated into separate grounds. On analysis, however, the original grounds raised the following arguments:

(i)

The judge misdirected himself in law in the weight that he attached to the appellant’s ability to meet the Immigration Rules: [2]-[5] of the grounds.

(ii)

The judge misdirected himself on the facts and failed, as a result, to take account of material factors: [6]-[9].

(iii)

The judge failed in any event to take account of material matters in considering whether or not the relationship displayed more than normal emotional ties: [10]-[12].

2.

[The FttT] granted the appellant permission to appeal on the first of the three grounds which were advanced but said nothing about the other two grounds. The renewed application for permission to appeal will be considered at a hearing on a date to be notified.”

The grounds of appeal have been helpfully summarised by Upper Tribunal Judge Blundell. It should not have been necessary for him to do so, and if they had been properly formulated as three grounds when the application for permission to appeal was made, it is likely that the judge considering the application would have reached a focused decision considering whether the grounds were arguable, and the utility of granting permission only on the first of the three grounds.

Mr Caswell submits the focus is upon the FtT judge’s finding that the appellant has failed to establish a family life and that Article 8 is therefore not engaged. Permission has been granted on the first ground which relates to the appellant’s ability to meet the immigration rules. The second ground of appeal is concerned with the judge’s consideration of the evidence regarding the appellant’s on-going family life with his mother and sister. The third ground of appeal is concerned with the judge’s overall assessment of the Article 8 claim and the complaint is that the judge failed to take account of material matters, including those identified in the second ground of appeal, in reaching their conclusion.

The appellant has been granted permission to appeal on the first ground only. As set out by the Court of Appeal in TZ (Pakistan) [2018] EWCA Civ 1109, compliance with the immigration rules would usually mean that there is nothing on the respondent’s side of the scales to show that the refusal of the claim could be justified. The difficulty with granting permission on the first ground only is that any factual errors that the appellant may establish, or the adequacy of the reasons overall, are capable of having an impact upon the judge’s consideration of whether Article 8 is engaged.

As Upper Tribunal Judge Blundell said, the FtT judge said nothing about the second and third grounds upon which permission was refused. As far as the second ground of appeal is concerned, it is unfortunate that the grounds of appeal as originally pleaded refer to what are described as “significant factual errors” that cannot realistically be material to the outcome of the appeal. Some of the factual errors relied upon may be material to the outcome of the appeal, but others are plainly immaterial. For example, whether the respondent’s refusal decision is dated 12 April 2023 or 6 April 2023 is entirely irrelevant to the judge’s conclusion that the appellant has failed to establish a family life and that Article is therefore not engaged. That said, the second and third grounds of appeal concern the judge’s consideration of the evidence before the Tribunal regarding the prior questions of whether the refusal of entry clearance is an interference with the appellant’s right to respect for private and family life; and, if so, whether the interference has consequences of such gravity as potentially to engage the operation of Article 8.

There is plainly an overlap in the grounds of appeal properly formulated and summarised by Upper Tribunal Judge Blundell such that there is little utility in refusing permission on grounds two and three regardless of the lack of any real merit of some, not all, of the criticisms made. In the end, the question for the Upper Tribunal will be whether it was open to the judge of the FtT to dismiss the appeal on Article 8 grounds for the reasons set out in the decision of the FtT because the decision is unlawful under section 6 of the Human Rights Act 1998.

We are satisfied therefore that we should grant permission on the second and third grounds of appeal.