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You are here: BAILII >> Databases >> United Kingdom Immigration and Asylum (AIT/IAC) Unreported Judgments >> UI2024005924 [2025] UKAITUR UI2024005924 (24 March 2025) URL: https://www.bailii.org/uk/cases/UKAITUR/2025/UI2024005924.html Cite as: [2025] UKAITUR UI2024005924 |
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IN THE UPPER TRIBUNAL IMMIGRATION AND ASYLUM CHAMBER |
Case No: UI-2024-005924 |
|
First-tier Tribunal Nos: HU/60815/2023 LH/05575/2024 |
THE IMMIGRATION ACTS
Decision & Reasons Issued:
On the 24 March 2025
Before
UPPER TRIBUNAL JUDGE McWILLIAM
Between
TUL PRASAD PURJA
(NO ANONYMITY ORDER MADE)
Appellant
and
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation :
For the Appellant: Mr J Gazzain, Gurkha Solicitors Limited
For the Respondent: Mr K Ojo, Home Office Presenting Officer
Heard at Field House on 6 March 2025
DECISION AND REASONS
1. The Appellant is a citizen of Nepal. His date of birth is 20 October 1983.
2. The issue before me is whether the First-tier Tribunal (Judge Bell) erred when dismissing the Appellant's appeal against the decision of the Respondent, on 14 August 2023, to refuse his application for entry clearance as the adult son of a former Gurkha. Permission was granted to the Appellant by the First-tier Tribunal (Judge Dieu) on 24 December 2024.
The Grounds of Appeal
3. There is one ground of appeal, namely that the judge did not give adequate reasons or take into account relevant evidence. The judge found at paragraph 24 that there was documentary evidence of some financial support of varying amounts since 2022 but there was no reliable evidence of other financial support before 2022. However, this was contrary to the evidence of the Appellant's mother's (the Sponsor) that she gave him money during visits and soon after she came to the UK she started sending him money from pension credit. It was sent through a system called "hundi" for which no receipts were issued. She later sent him money via Western Union.
4. The judge did not take into account the certificate of the Appellant's employment status dated 17 March 2023 from Raghuganga Rural Municipality which said as follows about the Appellant: "He is unemployed, has not any properties and jobless as well as not having experiences of official work. So, he is fully dependent on his mother's income". The judge did not explain why he afforded no weight to the document.
5. The judge did not consider the Appellant's marital status when considering Article 8(1). He had not formed an independent life which was relevant notwithstanding that he was aged 39. The fact that he is single is a significant factor in pointing to family life with parents as per Ghising (family life - adults - Gurkha policy) [2012] UKUT 160 and reaffirmed in AA v United Kingdom (Application No. 8000/08) where it was found that a significant factor as regards family life will be whether or not the adult child has founded a family of his own.
The Decision of the First-tier Tribunal
6. The Appellant's representative relied on his skeleton argument and submitted that the Sponsor was credible and that the evidence disclosed real, effective and committed support. It was accepted by the Appellant that he did not meet the requirements of the Immigration Rules relating to a dependent relative or under the policy for adult children of former Gurkhas.
7. In submissions the Presenting Officer relied on the Sponsor's evidence at her daughter's appeal in 2018 that the Appellant was not living at the family home and her daughter lived there alone.
8. The judge directed herself on the law and the relevant authorities. The judge said that she was unable to accept that the Appellant or the Sponsor had given a credible account of the Appellant's circumstances in Nepal. She attached weight to the evidence that the Sponsor gave at her daughter's appeal. The Sponsor did not dispute that she had said that her daughter was living alone in the family home; however, she said the Appellant had only been temporarily absent from the family home for a day or two because he had gone looking for work. The judge did not accept the explanation given by the Sponsor. The judge found it lacked credibility and that it would be "very unlikely that she would have described her daughter as living alone in the family home if her son [the Appellant], who also lived there, was only away for a day or two looking for work".
9. The judge took into account that one of the money receipts which was sent to the Appellant was to an address in Kathmandu and the Sponsor's evidence on this was that he had gone to Kathmandu for work at that time. However, when she was asked more about this she changed her evidence and said that the Appellant was in Kathmandu sorting out his application for entry clearance. The judge found this part of the Sponsor's evidence internally inconsistent.
10. The judge took into account that the Appellant has three siblings in Nepal and the Sponsor's evidence was that they were all working and supporting themselves. Her evidence was that the Appellant has no particular difficulties or health problems and she was not able to explain why the Appellant would be dependent on her when her other children had no difficulty supporting themselves.
11. The judge said, at paragraph 24, that she accepted that there was documentary evidence of some financial support of varying amounts since 2022 but found that there was no reliable evidence of other financial support. She noted that the Sponsor said that the Appellant had a bank account but that he had not submitted copies of the bank statements to show his overall financial circumstances. The judge said that she found it more likely than not that the Appellant was working before the Sponsor left for the UK and that he is still working and able to support himself. -
Submissions
12. Mr Gazzain relied on the grounds. He emphasised that the Appellant is unmarried and his marital status is a material part of the assessment. Mr Ojo submitted that the issue of financial support was dealt with by the judge who found that the evidence was unreliable and that in any event, a judge does not need to set out all the evidence in a decision
Findings and Reasons
13. I take into account the decision of Volpi & Anor v Volpi [2022] EWCA Civ 464 at [2] where Lewison LJ stated :
" i) An appeal court should not interfere with the trial judge's conclusions on primary facts unless it is satisfied that he was plainly wrong.
ii) The adverb "plainly" does not refer to the degree of confidence felt by the appeal court that it would not have reached the same conclusion as the trial judge. It does not matter, with whatever degree of certainty, that the appeal court considers that it would have reached a different conclusion. What matters is whether the decision under appeal is one that no reasonable judge could have reached.
iii) An appeal court is bound, unless there is compelling reason to the contrary, to assume that the trial judge has taken the whole of the evidence into his consideration. The mere fact that a judge does not mention a specific piece of evidence does not mean that he overlooked it.
iv) The validity of the findings of fact made by a trial judge is not aptly tested by considering whether the judgment presents a balanced account of the evidence. The trial judge must of course consider all the material evidence (although it need not all be discussed in his judgment). The weight which he gives to it is however pre-eminently a matter for him.
v) An appeal court can therefore set aside a judgment on the basis that the judge failed to give the evidence a balanced consideration only if the judge's conclusion was rationally insupportable.
vi) Reasons for judgment will always be capable of having been better expressed. An appeal court should not subject a judgment to narrow textual analysis. Nor should it be picked over or construed as though it was a piece of legislation or a contract."
14. The grounds do not consider the decision as a whole. They do not properly represent the decision of the judge and ignore that the judge did not accept that the Sponsor was a credible witness. Her evidence was found to be inconsistent and not credible.
15. The judge found that the evidence relating to the Appellant's financial circumstances was incomplete and that there was no "reliable" evidence of financial support prior to 2022 and that the evidence post this date was of varying amounts (see para 26). The grounds say that the judge ignores the Sponsor's evidence about pre 2022 financial support. I do not accept that the judge made an error. The finding was open to the judge in the light of the problematic evidence of the Sponsor. The grounds ignore that the judge did not accept the Sponsor's evidence and the word "reliable" used by the judge. The judge was entitled to reject the Sponsor's evidence that she sent money to the Appellant before 2022.
16. While the judge did not expressly state that the evidence was that the Appellant was single and had not formed his own family unit, I do not find that this amounts to an error. It was obvious that the judge was aware of the Appellant's case. The grounds suggest that that this was a factor that would support family life. This ignores the findings of the judge. The judge rationally and reasonably concluded that the Sponsor was not a credible witness. The judge did not accept the evidence as put forward by the Appellant and the Sponsor. There was, in the circumstances, no need to make a discrete finding on this issue. At paragraph 26 the judge found that she was unable to accept that the Appellant had lived at the family home all of his life or that it is currently his primary home even if he did live there at the relevant time. The findings are grounded in the evidence and adequately reasoned. The fact that the judge did not mention in the decision that the Appellant was said to be single was not material to the decision. In these circumstances the Appellant was not able to discharge the burden of proof and to establish family life following from dependency in the Kugathas sense (Kugathas v SSHD [20023] EWCA Civ 31) and considering Rai v ECO [2003] EWCA Civ 320.
17. In respect of the evidence from Raghuganga Rural Municipality. This was not referred to by the judge. I am not certain that the judge was specifically referred to this document; however, there is nothing to support that he did not take into account. He was entitled to find that it was not reliable in the context of the evidence as a whole. I consider what was said in Volpi. It is not necessary for judge to mention each and every piece of evidence. I further note that the primary reasons for finding the Sponsor not to be credible emanated from internal inconsistencies. The document does not explain these.
Notice of Decision
18. The decision of the First-tier Tribunal to dismiss the Appellant's is maintained. There is no error of law.
Judge of the Upper Tribunal
Immigration and Asylum Chamber
Joanna McWilliam
17 March 2025