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You are here: BAILII >> Databases >> United Kingdom Immigration and Asylum (AIT/IAC) Unreported Judgments >> UI2024003239 [2025] UKAITUR UI2024003239 (24 March 2025) URL: https://www.bailii.org/uk/cases/UKAITUR/2025/UI2024003239.html Cite as: [2025] UKAITUR UI2024003239 |
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IN THE UPPER TRIBUNAL IMMIGRATION AND ASYLUM CHAMBER |
Case No: UI-2024-003239 |
|
First-tier Tribunal Nos: HU/60918/2023 LH/00912/2024 |
THE IMMIGRATION ACTS
Decision & Reasons Issued:
On the 24 March 2025
Before
DEPUTY UPPER TRIBUNAL JUDGE I LEWIS
Between
Yubaraj Gurung
(NO ANONYMITY ORDER MADE)
Appellant
and
Entry Clearance Officer
Respondent
Representation :
For the Appellant: Mr D Bhattarai of Gordon & Thompson Solicitors
For the Respondent: Mr S Walker, Home Office Presenting Officer
Heard at Field House on 14 March 2025
DECISION AND REASONS
1. This is an appeal against a decision of First-tier Tribunal Judge Sweet promulgated on 27 April 2024 dismissing the Appellant's appeal on human rights grounds against a decision of the Respondent dated 15 August 2023 refusing the Appellant entry clearance to join his father, a former member of the Brigade of Ghurkhas, in the United Kingdom.
2. The Appellant is a national of Nepal born on 30 March 1976. It was his case before the First-tier Tribunal that until his father relocated to the United Kingdom in 2012 he was living with, and dependent upon, his father in Nepal: they enjoyed 'family life' together within the contemplation of Article 8(1) of the ECHR. Further, it was the Appellant's case that family life had continued to exist following his father's relocation. The Appellant had never married, was unemployed, had no property or savings or source of income of his own and lived in the family home in Nepal, which was owned by his father. In support of such contentions: the Appellant relied on remittances in respect of the claimed financial support; it was said that emotional ties were maintained through frequent telephone contact or contact through the Viber app, and the Appellant's father also made visits to Nepal in 2014, 2015, 2019, 2020, 2022 and 2023.
3. The Appellant relied upon the jurisprudence in respect of adult dependent family members of Ghurkha veterans. Essentially, if Article 8(1) was engaged - and absent any significant countervailing factor - the issue of proportionality under Article 8(2) was to be answered in the Appellant's favour by reason of 'historic injustice'.
4. Much of the relevant jurisprudence is helpfully set out in the Appellant's Skeleton Argument before the First-tier Tribunal, drafted by Mr Bhattarai. It is unnecessary to rehearse this in any detail here. Both parties are familiar with the jurisprudence, and ultimately the issues before me turn on the fact-finding of the First-tier Tribunal. Nonetheless, it is pertinent to highlight one matter from paragraph 39 of Rai v ECO [2017] EWCA Civ 320, which is also reproduced - with emphasis by way of underscoring - as part of a longer quotation at paragraph 11 of the Appellant's Skeleton Argument before the First-tier Tribunal:
"But that, in my view, was not to confront the real issue under article 8(1) in this case, which was whether, as a matter of fact, the appellant had demonstrated that he had a family life with his parents, which had existed at the time of their departure to settle in the United Kingdom and had endured beyond it, notwithstanding their having left Nepal when they did."
5. In this context, in the course of the appeal process the Respondent raised an issue by way of the Respondent's Review that had not featured in the original decision. The issue was raised with reference to the Appellant's father's visa application which was also reproduced in part in a supplementary bundle. Paragraph 12 of the Respondent's review states in part:
"The R notes on the sponsor's settlement application made on 13/08/2012 under the notes section, it is stated about the A 'Yubaraj Gurung 37 years) states is living in Dubai''. However, on the A's Visa Application Form dated 04/07/2023, it states he has been living in Nepal for 38 years at the given address. This is inconsistent and contradicts the Visa Application Form. The R submits the sponsor had no family life at the point of leaving the UK as the A was living an independent life outside of Nepal."
6. The Appellant made a response to this issue by way of a further witness statement from the Appellant and a further witness statement from his father, the Sponsor, which were included in an Appellant's supplementary bundle before the First-tier Tribunal. The statements are in essentially similar terms. The Sponsor states:
"This is my additional witness statement to my previous witness statement dated 8 February 2024 to address the concern raised in the respondent's review dated 28 March 2024. I would like to refute that my above-named dependent son was in Dubai for a visit when I was submitting my application for settlement to the UK on 13 August 2012. This was the reason I mentioned it that he was in Dubai. He was visiting there for a few months. He was not living there. He returned to Nepal after a couple of months after I submitted the application.
He always lived with me in Nepal until before I moved to the UK. He lived with me as a single-family unit at the family home which I own. He continues to live there to date. He has no job apart from occasional manual labour work. He has no reliable source of income. He relies on my supports."
7. The Appellant in his further witness statement dated 11 April 2024 similarly states as follows:
"1. This is my additional witness statement to my previous witness statement dated 13 February 2024 to address the concern raised in the respondent's review dated 28 March 2024. When my sponsor father was applying for settlement to the UK in August 2012, I was in Dubai for a couple of months for visit. My father is not an educated person and maybe he misunderstood the question and said I was in Dubai. I was not living there.
2. I always lived with my sponsor father in Nepal until before he moved to the UK. ..."
8. It might be thought that it would be reasonable to expect the Appellant to have provided more by way of supporting evidence to address this significant - indeed potentially determinative - issue; for example, he might have provided evidence by way of his passport stamps in respect of his time spent in Dubai, or other evidence to demonstrate that he was present in Nepal for most of 2012 and thereafter.
9. The First-tier Tribunal Judge approached this particular issue in this way at paragraph 9 of the decision:
"9. There was also an issue about the appellant's visit to Dubai, which was referred to in the sponsor's own application. The further evidence provided by the appellant and his father was that this was a visit for two months, as confirmed in the appellant's and sponsor's supplementary written statements, but the sponsor appeared to have no knowledge of who the appellant was visiting there, where he was staying, and it was put in submissions that the appellant may well have been working in Dubai, because the visa application form refers to him living in Dubai, rather than merely visiting. I found the sponsor's evidence on this aspect to be unsatisfactory and unreliable."
10. Although the Decision of the First-tier Tribunal is brief, in this particular respect the Judge's finding is adequately clear in my judgment, and adequately reasoned. It is plain that the Judge found the evidence in respect of the Appellant's circumstances in 2012 - specifically for how long he was in Dubai and what he was doing there - to be unsatisfactory and unreliable.
11. This specific finding of the First-tier Tribunal is not the subject of any of the Grounds of Appeal, and so stands before me essentially unchallenged.
12. Accordingly, irrespective of any other concerns about the Decision expressed in the Grounds of Appeal, in circumstances where this specific finding has not been challenged, the overall conclusion of the First-tier Tribunal is sustainable.
13. As regards the Grounds as pleaded, it is perhaps convenient to look at them in reverse order. Ground 4 addresses the Judge's approach to Article 8(2). Mr Bhattarai very properly acknowledges that Ground 4 is essentially therefore contingent upon an error being established in respect of the approach to Article 8(1).
14. Ground 3 addresses the issue of emotional ties, and suggests that there is a contradiction in the Judge's findings. In this context, it is said that the Judge accepted that the Appellant and his father maintained contact by telephone or 'app', and also that the Sponsor visited the Appellant regularly in Nepal. It is suggested that these findings, these accepted facts, are in contradiction to the conclusion that there were no emotional ties demonstrated within the contemplation of the Kugathas test. In my judgment there is no contradiction; the Ground essentially amounts to a disagreement that the findings did not, in the First-tier Tribunal's Judge's assessment, amount to something beyond normal emotional ties. It seems to me that this conclusion of the Judge is entirely sustainable. It is not at all uncommon for adult children and their parents to maintain contact through various electronic forms of communication, and if they are living countries apart by occasional visits. Nothing in those circumstances suggests anything out of the ordinary that might take this case into ' Kugathas territory'.
15. I do have sympathy with Grounds 1 and 2, however. Grounds 1 and 2 challenge respectively the Judge's evaluation of the evidence in respect of financial support provided by the Sponsor to the Appellant, and the accommodation issue, it being the case that it was said the Appellant was living in the family home owned by the Sponsor. There may be well be substance in the pleading that the Judge quite simply makes no finding in respect of accommodation. There may also be substance to the pleading in respect of financial support in that the analysis at paragraph 8 of the Decision either does not include a clear finding rejecting the Sponsor's evidence that money sent in the name of other children was for the purpose of being shared amongst all of his children in Nepal, or, if the Judge does reject that contention, the reason for rejecting it is not explained on the face of the Decision. However, notwithstanding my sympathy for these aspects of the challenge, it seems to me that in light of the failure to challenge the finding at paragraph 9 - and the consequent failure to challenge the effective conclusion that there was no family life at the time of the Sponsor's departure from Nepal for the United Kingdom - any such errors are essentially immaterial to the overall conclusion.
16. For the reasons given, I find that there is no material error of law and in the circumstances the decision of the First-tier Tribunal stands. The challenge of the Appellant is dismissed accordingly.
Notice of Decision
17. The Decision of the First-tier Tribunal contains no material error of law. The decision stands accordingly.
18. The Appellant's appeal remains dismissed.
(The above represents a corrected transcript of ex tempore reasons given at the conclusion of the hearing on 14 March 2025.)
I Lewis
Deputy Judge of the Upper Tribunal
Immigration and Asylum Chamber
18 March 2025