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IN THE UPPER TRIBUNAL IMMIGRATION AND ASYLUM CHAMBER |
Case No: UI- 2024-002103 UI-2024-002104 |
|
First-tier Tribunal No: HU/59404/2023 HU/59405/2023 |
THE IMMIGRATION ACTS
Decision & Reasons Issued:
22 nd May 2025
Before
DEPUTY UPPER TRIBUNAL JUDGE ALIS
Between
GYANBAHADUR PUN
LACHHMAN PAIJA PUN
(no ANONYMITY ORDER MADE)
Appellant
and
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation :
For the Appellant: Mr Jaisri, Counsel
For the Respondent: Mr Tufan, Senior Home Office Presenting Officer
Interpreter: Mr Bisset
Heard at Field House on 19 May 2025
Order Regarding Anonymity
No anonymity order is made as none was requested or required
DECISION AND REASONS
1. The Appellants, Nepalese nationals aged 54 and 42 years of age respectively, applied to settle in the United Kingdom with their mother on 30 May 2023. Their applications were refused on 11 July 2023 and the Appellants appealed their decisions. Their appeals were dismissed by the First-tier Tribunal (hereinafter referred to as the FTT) in a decision promulgated on 19 March 2024. They appealed this decision and it came before me on 26 February 2025. Having heard submissions, I found there had been an error in law because the FTT in reaching a decision applied too high a test when considering the issue of family life and failed to apply the principles set out in Rai [2017] EWCA Civ 320.
2. I agreed further evidence could be served, if appropriate. A consolidated bundle containing further evidence, including witness statements form the Sponsor and two Appellants, was served.
3. The Sponsor, Maya Paija Pun, gave oral evidence through the interpreter and was cross-examined by Mr Tufan. She adopted her two statements and confirmed the following:
4. Mr Tufan submitted the crux was whether article 8(1) ECHR applied to the facts of these appeals. The Sponsor stated the family house was in her name and the children lived there but this on its own would not demonstrate dependency. The Appellants were 52 and 40 years of age when they made their applications and Mr Tufan submitted their claims they had never worked was not credible given their ages. Whilst there was evidence they had access to their father's pension and money was sent from this country Mr Tufan argued that financial dependency was not enough following the decision of AAO [2011] EWCA Civ 840 in which the Court of Appeal said " as for the position of parents and adult children, it is established that family life will not normally exist between them within the meaning of article 8 at all in the absence of further elements of dependency which go beyond normal emotional ties ". The Appellants claimed emotional dependency but it was not clear what this was and there were no real health needs. The Sponsor did not need them here as she has other children here. Mr Tufan submitted the threshold in Rai had not been reached and the appeal should be dismissed.
5. Mr Jaisri relied on his skeleton argument at page 79 of the composite bundle. He submitted the Tribunal needed to ask itself two questions:
6. Mr Jaisri accepted it was difficult to show emotional security but he argued that access to funds and the family home plus the Sponsor's visits to Nepal demonstrated emotional and financial ties, which whilst less than when she came to this country, were sufficient for the purposes of their claim. The proportionality assessment, if accepted, fell in their favour.
DISCUSSION AND FINDINGS
7. Having heard submissions I reserved my decision which I now give.
8. Case law has impacted Gurkha cases for many years with the decisions in Kugathas v Secretary of State for the Home Department [2003] EWCA Civ 31, Ghising (family life - adults - Gurkha policy) [2012] UKUT 160, Gurung and Ors R (on the application of) v Secretary of State [2013] EWCA Civ 8 and more recently Rai providing guidance on how such cases should be approached.
9. Both representatives recognised that the question of 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 and that different outcomes with superficially similar features emphasised that the issue under Article 8(1) is highly fact-sensitive. At paragraphs [39] to [40] of Rai the Court of Appeal stated:
"39. ... 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.
40. The same may be said of the Upper Tribunal judge's comment that "[there] is no evidence presented as to why the Appellant alone of the six children appears to have remained both within the family home and without employment" (paragraph 22). Even if this was a fair reflection of the evidence explaining how it had come about that the appellant was now the only child of the family in the family home - which I do not think it was - it does not go to the question of whether, as a matter of fact, the appellant himself still enjoyed a family life with his parents - even if his siblings did not."
10. In assessing these current appeals the Tribunal must pay attention to the concept of "support" which needs to be ""real" or "committed" or "effective". When assessing family life, there is no requirement for the financial or emotional dependency which constitutes family life to reach an extraordinary or exceptional level. Sedley LJ made clear in Kugathas that it is the support that elevates "normal" ties in the sense of "mere" or "ordinary" emotional ties into ones protected by Article 8.
11. It is against this background that I must consider whether the Appellants engage Article 8(1) ECHR. I had previously preserved the FTT findings that the Appellants were unmarried, living in the Sponsor's home and that the Sponsor sends funds to them.
12. Mr Tufan's argument was that article 8(1) ECHR was not engaged on the facts of this case whereas Mr Jaisri argued there was clearly article 8(1) family life in Nepal when they all lived together and whilst that family life was not as strong since the Sponsor (and her husband) came to this country nevertheless there still was family life.
13. Prior to coming to this country the Sponsor explained that she and her husband lived in Nepal and that she was her husband's third wife. The first-named Appellant was her stepson whereas the second-named Appellant was her biological son. The first-named Appellant was born on 19 February 1971 and was her step-son. The Sponsor stated that she treated the first-named Appellant no differently to the second-named Appellant. One of her step-daughters is married and living in this country and her and her husband's other children (other than the second-named Appellant) both live independently in the United Kingdom.
14. Prior to 2010 the Appellants, Sponsor and her husband all lived together in the family home and at the date of their application, and still today, are unmarried by choice. They claimed they had never worked because of a lack of qualifications and employment opportunities in Nepal. The Sponsor and her husband maintained the Appellants financially and provided emotional support.
15. After the Sponsor and her husband same to this country the Appellants continued to live in the family home and the financial support continued. The Sponsor has visited the Appellants, with her husband when he was alive, in 2011, 2013, 2015, 2016, 2017, 2019, 2021, 2022 and 2024. The Respondent does not dispute the financial support but argued that financial support alone did not engage article 8(1).
16. For the Appellants to succeed I need to find family life at the point of the parents left Nepal and today. As stated before Mr Tufan submitted this had not been demonstrated.
17. Taking into account the Appellants formerly lived in the family home with the Sponsor and their father prior to them coming to this country and were wholly reliant on them I accept Mr Jaisri's submission that real, effective and committed support existed prior to 2010. The Appellants could not accompany the Sponsor and her husband as the Rules did not allow them.
18. Whilst Mr Tufan acknowledged there was financial support towards the two Appellants he questioned whether it was credible that persons the age of these Appellants had not worked in the period post 2010. He also questioned whether it was credible that the house would have passed to the Sponsor solely.
19. The Sponsor gave oral evidence and I found nothing in her evidence that would suggest she was not telling me the truth. There was no evidence the Appellants had worked and it was conceded that the Appellants remained in the family home and continued to receive money from the Sponsor. Mr Tufan's submissions on work and the family home were speculation and without any supporting evidence.
20. In Mobeen v Secretary of State for the Home Department [2021] EWCA Civ 886 the Court of Appeal made clear:
"45. Whether or not family life exists is a fact-sensitive enquiry which requires a careful assessment of all the relevant facts in the round. Thus it is important not to be overly prescriptive as to what is required and comparison with the outcomes on the facts in different cases is unlikely to be of any material assistance.
46. However, the case law establishes clearly that love and affection between family members are not of themselves sufficient. There has to be something more. Normal emotional ties will not usually be enough; further elements of emotional and/or financial dependency are necessary, albeit that there is no requirement to prove exceptional dependency. The formal relationship(s) between the relevant parties will be relevant, although ultimately it is the substance and not the form of the relationship(s) that matters. The existence of effective, real or committed support is an indicator of family life. Co-habitation is generally a strong pointer towards the existence of family life. The extent and nature of any support from other family members will be relevant, as will the existence of any relevant cultural or social traditions."
21. I previously found an error on law because the FTT had failed to apply the test set out in Rai. I now find as follows:
i. Since coming to the United Kingdom the Sponsor and their father provided emotional support by maintaining contact with not only regular calls and messages but regular visits both before and after their father's death.
ii. Financial support has continued throughout.
iii. They still live in the family home.
iv. There is no evidence to support the Respondent's claim the Appellants are working or independent.
22. I therefore conclude that as article 8(1) is engaged, the respondent's refusal decision is a disproportionate interference with family life.
23. I allow the appeals under article 8 ECHR.
SP Alis
Deputy Judge of the Upper Tribunal
Immigration and Asylum Chamber
20/5/2025