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IN THE UPPER TRIBUNAL IMMIGRATION AND ASYLUM CHAMBER |
Case No: UI-2024-003695 |
|
First-tier Tribunal No: HU /54959/2023 LH/03393/2024 |
THE IMMIGRATION ACTS
Decision & Reasons Issued:
On 14 February 2025
Before
UPPER TRIBUNAL JUDGE SHERIDAN
DEPUTY UPPER TRIBUNAL JUDGE CHAPMAN
Between
Yam Prasad Gurung
(NO ANONYMITY ORDER MADE)
Appellant
and
The Secretary of State for the Home Department
Respondent
Representation :
For the Appellant: Ms Revill, Counsel instructed by Everest Law
For the Respondent: Mr Wain, Senior Home Office Presenting Officer
Heard at Field House on 3 February 2025
DECISION AND REASONS
Introduction
1. The appellant is a citizen of Nepal, born in June 1977, who applied in July 2022 for leave to enter the UK on the basis of his relationship with his mother ("the sponsor"). The sponsor is a widow of a former Gurkha soldier who died in 1996. She was granted ILR in 2010.
2. The respondent refused the appellant's application in November 2022. The appellant appealed to the First-tier Tribunal where his appeal was dismissed by Judge of the First-tier Tribunal Smyth. By a decision issued on 4 December 2024, the Upper Tribunal set aside Judge Smyth's decision with no findings preserved. The appeal is now before us to remake the decision.
The issue in dispute
3. The only issue in dispute is whether the appellant and sponsor have a family life that engages Article 8(1) ECHR. It was common ground that if this question is answered in the affirmative the appeal should be allowed. As acknowledged by Mr Wain, this is because the historic injustice faced by former Gurkha soldiers means that, in the proportionality assessment under Article 8(2), no weight would be attached to the importance of maintaining firm immigration controls and there would therefore be nothing on the public interest side of the scales to outweigh the appellant's right to respect for his family life with the sponsor.
Relevant law
4. There was no dispute as to the relevant legal principles. These are succinctly summarised in paragraphs 44 - 47 of Mobeen v SSHD [2021] EWCA Civ 886, as follows:
44. The relevant principles relating to family life in the case of adults have been explored in a line of well-known authorities including Kugathas; Singh v ECO New Delhi [2004] EWCA Civ 1075 (" Singh 1"); ZB (Pakistan) v SSHD [2009] EWCA Civ 834 (" ZB"); Singh v SSHD [ 2015] EWCA Civ 630 (" Singh 2"); Britcits; AU v SSHD [2020] EWCA Civ 338 (" AU"). The position can be summarised as follows.
Factual background and findings of fact
5. The sponsor has three children: the appellant, the appellant's brother (who lives with the appellant in Nepal) and the appellant's sister (who lives in the UK).
6. The appellant married in 1996 and divorced in 2022. He has three children: two daughters who are over 18 and a minor son who is in full-time education.
7. The appellant currently lives with his brother and children.
8. The appellant lived in Saudi Arabi between 1996 and 2006, during which time he sent some funds to his family (including the sponsor) in Nepal. The extent to which, whilst he was in Saudi Arabia, the appellant supported his family financially - and whether family life for the purpose of Article 8 ECHR between him and the sponsor was maintained during this period of lengthy separation- is disputed. We do not, however, need to resolve this dispute because the question for us to determine is whether the appellant currently has a family life with the sponsor engaging article 8; not whether he had such a relationship 20 years ago.
9. Between 2006 and 2010, the appellant lived in Nepal, in the family home with the sponsor, his siblings, his wife and children. This is not disputed by the respondent.
10. In 2010 the appellant travelled to Qatar, where he spent 10 months working. He returned to Nepal because he was unable to earn sufficient money to make living in Qatar worthwhile.
11. Shortly after the appellant returned from Qatar the sponsor moved to the UK, having been granted ILR as the widow of a former Gurkha soldier.
12. Since 2010 the appellant has remained in Nepal. There is a reference in his witness statement to being issued with a new passport in 2013. Mr Wain argued that this indicated that he may have obtained a passport in 2013 in order to work abroad. Whilst we accept that this is a possibility, the evidence of the sponsor, which we accept, is that the appellant has not worked abroad since returning to Nepal from Qatar in 2010.
13. In 2015 the family home was destroyed in an earthquake and since then the appellant and other family members have been living in rented accommodation that is paid for by the sponsor. This is not disputed by the respondent.
14. Since December 2021 the sponsor has transferred approximately £100 a month to the appellant. Documentary evidence, that was not disputed by the respondent, was submitted to corroborate this. The source of these funds is the benefits she receives in the UK.
15. Since April 2023 the sponsor has been transferring her military pension to the appellant. This, too, is corroborated by documentary evidence that is not disputed.
16. The evidence of the sponsor and appellant is that prior to December 2021 informal mechanisms were used to transfer funds from the sponsor to the appellant. Having considered the oral evidence of the sponsor and the written witness evidence, we are satisfied that this has occurred since at least 2015 when the family home was destroyed in an earthquake and the appellant and other family members of the sponsor began living in rented accommodation.
17. We accept the unchallenged evidence of the sponsor that the funds that she transfers to the appellant are used to pay the rent for the property in which the appellant lives, as well as for food and clothing for the appellant and other family members.
18. Since relocating to the UK, the sponsor has visited Nepal regularly. Her evidence, which was not challenged, is that she speaks to the appellant 3 or 4 times a week.
Analysis
19. The sponsor and appellant keep in close contact. It is apparent that they have a strong relationship and are concerned about each other's wellbeing. Whilst this indicates that the appellant and sponsor have a close relationship characterised by love and affection, it does not, in our view, establish that there is effective, real or committed emotional support between the sponsor and appellant that goes beyond the norm that typically exists between a parent and adult child and which would justify a finding that family life engaging article 8 exists. We find that the evidence before us does not establish that the emotional connection and support between the appellant and sponsor is sufficient to engage Article 8.
20. However, in contrast, we consider that the evidence does demonstrate effective, real and committed financial support. The sponsor is on a relatively low income in the UK and she transfers a not insubstantial part of that to the appellant to support him and other family members. The money that she sends provides a home for the appellant, as well as funds to purchase necessities such as food and clothing. The provision of financial support has been occurring over a lengthy period and is not intermittent; the funds are sent every month. In our view, the provision of this level of regular financial support over a lengthy period goes beyond the norm that exists between a parent and adult child and amounts to effective, real and committed support.
21. In the light of the financial support provided by the sponsor to the appellant, we are satisfied that it is more likely than not that family life engaging in Article 8 exists. For the reasons explained in paragraph 3, and as accepted by Mr Wain, it follows from this finding that the appeal must be allowed.
Notice of Decision
22. The decision of the First-tier Tribunal was set aside by a decision of the Upper Tribunal issued on 4 December 2024. We now remake that decision and allow the appeal.
D. Sheridan
Judge of the Upper Tribunal
Immigration and Asylum Chamber
11 February 2025