A black background with a black square Description automatically generated with medium confidence
IN THE UPPER TRIBUNAL IMMIGRATION AND ASYLUM CHAMBER |
Case No: UI-2024-003659 |
|
First-tier Tribunal No: HU/55838/2023 |
THE IMMIGRATION ACTS
Decision & Reasons Issued:
12 th May 2025
Before
UPPER TRIBUNAL JUDGE BULPITT
Between
MUKTI BAHADUR PUN
(NO ANONYMITY ORDER MADE)
Appellant
and
ENTRY CLEARANCE OFFICER
Respondent
Representation :
For the Appellant: Ms K McCarthy - Counsel instructed by Everest Law Solicitors
For the Respondent: Ms Tariq - Senior Home Office Presenting Officer
Heard at Field House on 7 May 2025
DECISION AND REASONS
1. The appellant, a 44-year-old citizen of Nepal sought entry clearance to settle in the United Kingdom which is where his mother and his father, who is a retired veteran of the British Army Brigade of Gurkhas, have been living since May 2013. His application involved a human rights claim on the basis of the family life engaging Article 8 of the Convention on Human Rights that the appellant says he shares with his mother and father. The respondent refused to grant the appellant entry clearance, finding that the appellant does not have a family life with his parents that engages the Convention and that even if he did, interference with that family life would be proportionate.
2. The appellant therefore appealed to the First-tier Tribunal against the refusal of his human rights claim. His appeal was dismissed by First-tier Tribunal Judge Beg in "decision 1". In "decision 2" which is dated 13 March 2025 and is annexed to this decision, I found the decision of Judge Beg to contain an error of law such that it had to be set it aside and the appellant's appeal be considered afresh. In this decision ("decision 3") I remake the decision concerning the appellant's appeal against the respondent's refusal of his human rights claim following a hearing which was conducted on 7 May 2025. At that hearing I granted the appellant's unopposed application to adduce further evidence that had not been before Judge Beg and I heard oral evidence from the appellant's father, mother and sister and helpful submissions from Ms Tariq and Ms McCarthy.
The Issues
i. Whether the appellant enjoys a family life with his mother and father that engages Article 8(1) of the Convention on Human Rights? and if so
ii. Whether the interference with that family life that results from the respondent's decision to refuse the appellant entry clearance is proportionate and therefore justified applying Article 8(2) of the Convention?
The Legal Framework
Issue i: Article 8(1) of the Convention
53. In Kugathas, at [14], Sedley LJ cited with approval the Commission's observation in S v United Kingdom (1984) 40 DR 196:
"Generally the protection of family life under Article 8 involves cohabiting dependents, such as parents and their dependent, minor children. Whether it extends to other relationships depends on the circumstances of the particular case. Relationships between adults, a mother and her 33 year old son in the present case, would not necessarily acquire the protection of Article 8 of the Convention without evidence of further elements of dependency, involving more than the normal emotional ties."
54. Sedley LJ accepted the submission that 'dependency' was not limited to economic dependency, at [17]. He added:
"But 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 in my view the irreducible minimum of what family life implies."
55. Arden LJ said , at [24] - [25]:
"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... Such tie might exist if the appellant were dependent on his family or vice versa."
"24. I do not think that the judgments to which I have referred lead to any difficulty in determining the correct approach to Article 8 in cases involving adult children. In the case of adults, in the context of immigration control, there is no legal or factual presumption as to the existence or absence of family life for the purposes of Article 8. I point out that the approach of the European Commission for Human Rights cited approvingly in Kugathas did not include any requirement of exceptionality. It all depends on the facts. The love and affection between an adult and his parents or siblings will not of itself justify a finding of a family life. There has to be something more. A young adult living with his parents or siblings will normally have a family life to be respected under Article 8 . A child enjoying a family life with his parents does not suddenly cease to have a family life at midnight as he turns 18 years of age. On the other hand, a young adult living independently of his parents may well not have a family life for the purposes of Article 8 ."
Issue ii - Article 8(2) proportionality
(4) Accordingly, where it is found that Article 8 is engaged and, but for the historic wrong, the Appellant would have been settled in the UK long ago, this will ordinarily determine the outcome of the Article 8 proportionality assessment in an Appellant's favour, where the matters relied on by the Secretary of State/ entry clearance officer consist solely of the public interest in maintaining a firm immigration policy.
(5) It can therefore be seen that Appellants in Gurkha (and BOC) cases will not necessarily succeed, even though (i) their family life engages Article 8(1); and (ii) the evidence shows they would have come to the United Kingdom with their father, but for the injustice that prevented the latter from settling here earlier. If the Respondent can point to matters over and above the public interest in maintaining a firm immigration policy, which argue in favour of removal or the refusal of leave to enter, these matters must be given appropriate weight in the balance in the Respondent's favour. Thus, a bad immigration history and/or criminal behaviour may still be sufficient to outweigh the powerful factors bearing on the Appellant's side of the balance.
Analysis of the evidence
Issue (i) - Article 8(1) Conclusion
Issue (ii) - Article 8(2) Conclusion
"You can set out to compensate for a historical 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..."
Notice of Decision
The appellant's human rights appeal is DISMISSED
Luke Bulpitt
Judge of the Upper Tribunal
Immigration and Asylum Chamber
9 May 2025
A black background with a black square Description automatically generated with medium confidence
IN THE UPPER TRIBUNAL IMMIGRATION AND ASYLUM CHAMBER |
Case No: UI-2024-003659 |
|
First-tier Tribunal No: HU/55838/2023 |
THE IMMIGRATION ACTS
Decision & Reasons Issued:
.......................................
Before
UPPER TRIBUNAL JUDGE BULPITT
Between
MUKTI BAHADUR PUN
(NO ANONYMITY ORDER MADE)
Appellant
and
ENTRY CLEARANCE OFFICER
Respondent
Representation :
For the Appellant: Ms K McCarthy - Counsel instructed by Everest Law Solicitors
For the Respondent: Mr E Tufan - Senior Home Office Presenting Officer
Heard at Field House on 28 February 2025
DECISION AND REASONS
1. The appellant, a 44-year-old citizen of Nepal sought entry clearance to settle in the United Kingdom which is where his mother and father, who is a retired veteran of the British Army Brigade of Gurkhas, have been living since May 2013. His application involved a human rights claim on the basis of the family life the appellant says he shares with his mother and father. The respondent refused to grant the appellant entry clearance. The appellant therefore appealed to the First-tier Tribunal against the refusal of his human rights claim and his appeal was heard by First-tier Tribunal Judge Beg (the Judge) on 5 June 2024. In a decision promulgated the same day the Judge dismissed the appellant's appeal.
2. The appellant has appealed against the decision of the Judge to the Upper Tribunal. Having heard that appeal I indicated to the parties that the Judge's decision contained an error of law such that it must be set aside. My reasons for that conclusion follow.
The Judge's Decision
3. There was no dispute that the appellant could not meet any of the requirements of the Immigration Rules for being granted the entry clearance he sought. The appellant's case before the Judge was that he shared a family life with his parents that engaged article 8(1) of the Convention on Human Rights (the Convention) and that interference with that family life could not be justified under article 8(2) because of the historic injustice that was suffered by Gurkha soldiers who had been deprived of the right to settle in the United Kingdom following their service in the British army. The respondent argued that the appellant did not share a family life with the appellant that engages article 8(1) of the Convention, but that if he did, applying article 8(2) of the Convention, interference with that family life was justified and proportionate in the circumstances. The issues for the Judge to resolve were therefore identified as:
Did the appellant share a family life with his parents that engaged article 8 (1) of the Convention? and if so -
Was the interference with that family life that refusing the application for entry clearance involved, justified under article 8 (2) f the Convention?
4. The Judge considered a consolidated "hearing bundle" of documentary evidence, which included a witness statement made by the appellant, and heard oral evidence from the appellant's father and from the appellant's sister who lives in the United Kingdom with her husband and daughter.
5. The Judge begins her setting out her findings based on that evidence at [23] of her decision. She begins that paragraph by stating that:
23. "It is common ground that when the [appellant's father] applied for a settlement visa and entered the United Kingdom for settlement, the appellant was an adult, living an independent life...."
6. The Judge then continues in that paragraph and the following paragraphs to assess evidence that was given during the hearing:
23. .....The sponsor gave evidence that when the appellant married, he lived with him and his wife in the same house. The appellant has two adult children studying in Kathmandu. He is divorced from their mother. The sponsor stated in cross-examination that the appellant is working. However, in re-examination, he said that he grows corn, millet and potatoes for his own consumption.
24. However, the sponsor also gave evidence that he has another son Chhabilal Pun in Nepal who lives separately and does the same agriculture farming and labour work to support his family. Although there is documentary evidence that the sponsor owns land in Nepal, I do not find it credible that the appellant's sons did unpaid agricultural work growing vegetables for themselves and their families. I find that they were able to generate an income from their work.
25. Chhabilal Pun lives in his own independent rented accommodation. He was clearly able to pay rent from the agricultural work that he did. I find that the appellant and his brother were both in paid employment when they did agricultural work and other labouring jobs. The sponsor made no mention of his son Chhabilal Pun working in a pharmacy when he was asked what his older son did for a living. His daughter gave evidence that her older brother and his wife both work in a pharmacy. I do not find the sponsor a credible witness on this issue.
7. The Judge then sets out her findings of fact including that the appellant lives in his parents' home, that he is now divorced, that his ex-wife is living with her parents and his two sons stay with the appellant when they are not studying [26]; that the appellant's father sent limited funds to the appellant in 2014 and 2023 but that the appellant has not been reliant financially on his father since his father left Nepal in 2013 [27]; that the appellant lives an independent life, working to support himself and his children with the money sent by his father additional funds to help manage the home and maintain the house [28].
8. At [29] the Judge turns to the appellant's claim that he receives emotional support from his parents recording that "the sponsor made no mention in his evidence of providing any emotional support to the appellant or the frequency of his contact with his son." The Judge then records in the following paragraphs the evidence of the appellant's father on this topic and her findings on the topic having considered the evidence:
30. The sponsor gave evidence that he has only returned to visit Nepal three times since he entered the United Kingdom for settlement in 2013. In re-examination, he said that his last visit to Nepal was in 2022 when he discovered that his daughter-in-law was nowhere to be seen and that his grandchildren were away studying.
31. I find that if he had a close emotional relationship with the appellant, he would have known that his son and daughter-in-law had separated, and that his daughter-in-law had gone to live with her own parents, before he arrived in Nepal. The sponsor's daughter gave evidence that the appellant and his wife stopped living together three or four years ago.
32. I find that his oral evidence contradicted paragraph 14 of his witness statement dated 29 October 2023, where he stated that following the earthquake in 2015, his son told him that his wife had left him and that she would not be returning to live with him anymore. The sponsor also said in evidence that he is not sure whether his son and daughter-in-law are still married or whether they have divorced. Again, I find that if the sponsor had a close emotional bond with the appellant, he would have known that the appellant is now divorced.
9. The Judge then went on to consider the health of the appellant's mother and father and their circumstances in the United Kingdom before finding at [37] that:
37. In taking the evidence in the round, I find on a balance of probabilities that Article 8 is not engaged. I do not find that there is family life between the appellant and the sponsor that goes beyond normal emotional ties to a relationship of real committed and effective support. The appellant's private life is in Nepal, where he has always lived.
The grounds of appeal
10. The appellant appealed against the Judge's decision on four grounds. In the first ground it is asserted that the Judge was mistaken when recording at [23] that "it was common ground" that the appellant was living an independent life when his mother and father left Nepal in 2013. Instead the appellant says that his case was always that he was living with his parents in the same household until they left Nepal and came to the United Kingdom. In the second ground it is asserted that the Judge failed to record evidence given in the hearing about the appellant and his brother correctly and thereby came to unsustainable conclusion that the two brothers were in the same situation. In ground three it is asserted that the Judge failed to give any sustainable reasons for rejecting the evidence of the appellant's father and finding him not to be credible. In ground four it is asserted that the Judge did not accurately record the evidence of the appellant's father about his emotional ties to the appellant, misunderstood that evidence and failed to have regard to evidence about the extent of the emotional ties they share.
11. Permission to appeal was granted on all four grounds by another Juge of the First-tier Tribunal. Noting that the first ground involved a dispute about what was "common ground" at the hearing before the Judge, Upper Tribunal Judge Keith directed that the parties reviewed the recording of the hearing and agreed a relevant position on what was said before the Judge. In accordance with that direction the parties did attend a listening appointment and an agreed transcript of the hearing before the Judge was made. That transcript has been invaluable when considering this appeal.
The Error of Law
12. Having considered the evidence that was submitted to the Judge, the skeleton argument that was before the Judge and which set out the basis of the appellant's case, and the transcript of what was said during the hearing before the Judge, I am satisfied that the Judge was mistaken when she recorded at [23] that "it is common ground that when the sponsor applied for a settlement visa and entered the United Kingdom for settlement, the appellant was an adult living an independent life".
13. Contrary to it being common ground the appellant was living an independent life when his parents moved from Nepal to the United Kingdom in 2013, the appellant's case is that notwithstanding the fact he was married and had two sons at that time, he was not living independently of his parents but was living with them as a single household in a house owned by his father. This is evident from the witness statements of the appellant and his father and is set out explicitly at [24(ii)] of the appeal skeleton argument which records the appellant's case was: "A always lived with his parents prior to their travel to the UK". It is clear from the transcript of the hearing and accepted by the respondent, that nothing was said during the hearing by or on behalf of the appellant to resile from that position.
14. Having said it was common ground that the appellant was living an independent life in 2013 the Judge immediately refers to the evidence that the appellant was living in the same house as his parents at that time. In the light of this Mr Tufan argued that when the paragraph of the decision is read as a whole it is apparent that the Judge was not referring to a concession but making a finding that the appellant was living an independent life at the relevant time. I cannot accept that submission. The judge specifically refers to the appellant living an independent life in 2013 being a matter of "common ground" when it evidently was not. Far from there being common ground, the parties disputed whether or not the circumstances that existed at the time the appellant's parents came to the United Kingdom involved them sharing family life at that time with the appellant.
15. Having considered the transcript of the hearing I am similarly satisfied that the Judge's record of the evidence given by the appellant's father includes material mistakes of facts and inaccuracies which lead to findings of inconsistencies in his evidence which are not justified. An example of this is at [23] when the Judge says the appellant's father: " stated in cross-examination that the appellant is working. However, in re-examination, he said that he grows corn, millet and potatoes for his own consumption." The transcript however indicates that when the appellant's father was asked in cross examination if the appellant works he replied "he doesn't do any other work just agricultural farming" and when he was later asked on re-examination what the appellant grows he replied corn, millet and potatoes for his own consumption. There was in reality no inconsistency between the appellant's cross-examination answers and his re-examination answers on this topic and the suggestion in the Judge's decision that the appellant's father gave oral evidence that the appellant does work other than growing corn millet and potatoes for his own consumption is mistaken.
16. Another example is in the following paragraph of the Judge's decision in which the appellant's claim to work growing crops with his own consumption is contrasted with the situation of his brother Chhabilal who not only does the same agricultural work but also works as a pharmacist. It is suggested at [25] of the Judge's decision that contrary to what is said in that paragraph the appellant's father was not forthcoming about Chhabilal's works as a pharmacist however it is apparent from the transcript that the appellant's father was not asked about what Chhabilal did for a living and was not asked to elaborate on his evidence that Chhabilal did "labour work" in addition to the farming. The Judge then went on to reach the conclusion that the appellant and Chhabilal were in the same situation but there does not appear to be any evidential basis for that conclusion and it is not possible to discern from the Judge's decision why the Judge concluded that Chhabilal's work as a pharmacist meant she rejected the appellant's claim not to do any work other than farming.
17. Likewise, the Judge's record of the evidence from the appellant's father about when he became aware that the appellant and his wife had separated does not reflect all of the evidence he gave. The Judge records at [30] that the appellant's father "discovered" that his daughter in law and grandchildren were not living at his house when he visited in 2022 and says at [32] that this contradicts his witness statement in which he says he was told after the earthquake in 2015 that the appellant's wife had left him and would not be returning. The Judge's record appears to be based on an answer the appellant's father gave in re-examination which was that the appellant and his wife lived together in the shared house when they were married, but that when he returned to visit Nepal in 2022, the appellant's wife was nowhere to be seen. The appellant's father did not however say in his answer that this was when he "discovered" their separation and his answer was not on its face contradictory his account that in fact he knew about the separation in 2015 years before his return in 2022.
18. Bringing this all together, it is apparent that the Judge's conclusions that the evidence of the appellant's father is not credible and that the appellant "leads an independent life" have been reached at least in part on the basis of misunderstandings and mistakes about precisely what oral evidence was given by the witnesses and what agreement was reached between the parties. In these circumstances I am satisfied that the Judge's decision involved an error of law such that it must be set aside and the issue of whether the appellant shares a family life with his parents in the United Kingdom must be considered afresh.
Rehearing
19. Both parties agreed that in accordance with the expectation expressed in the Practice Directions for the Immigration and Asylum Chambers of the First-tier Tribunal and the Upper Tribunal, the decision in respect of this appeal should be re-made in the Upper Tribunal. They also agreed that findings of fact needed to be made which the Tribunal could not make without an adjournment. The appeal is therefore adjourned so that the proceedings can be completed before the same constitution of the Tribunal. It is anticipated that the appellant's father and sister will give evidence at that hearing. The date for that hearing should if possible be fixed for the convenience of Ms McCarthy who has represented the appellant throughout these proceedings.
Notice of Decision
The decision of First-tier Tribunal Judge Beg involved and error of law and is set aside.
The appeal will be listed for a further hearing before the Upper Tribunal for a decision to be remade.
Directions
1. Any further evidence relied upon must be filed on CE File and served on the other party no later than seven days before the next hearing.
Luke Bulpitt
Judge of the Upper Tribunal
Immigration and Asylum Chamber
3 March 2025