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United Kingdom Immigration and Asylum (AIT/IAC) Unreported Judgments


You are here: BAILII >> Databases >> United Kingdom Immigration and Asylum (AIT/IAC) Unreported Judgments >> UI2025000464 [2025] UKAITUR UI2025000464 (8 May 2025)
URL: http://www.bailii.org/uk/cases/UKAITUR/2025/UI2025000464.html
Cite as: [2025] UKAITUR UI2025000464

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IN THE UPPER TRIBUNAL

IMMIGRATION AND ASYLUM CHAMBER

Case No: UI-2025-000464

First-tier Tribunal No: HU/00578/2024

 

THE IMMIGRATION ACTS

Decision & Reasons Issued:

 

On 8 th of May 2025

 

Before

 

UPPER TRIBUNAL JUDGE BLUNDELL

UPPER TRIBUNAL JUDGE PICKUP SITTING IN RETIREMENT

 

Between

 

Sabita Chhettri Gurung

(NO ANONYMITY ORDER MADE)

Appellant

and

 

Secretary of State for the Home Department

Respondent

Representation :

For the Appellant: Mr J Martin of Counsel, instructed by Indra Sebastian Solicitors

For the Respondent: MS R Tariq, Senior Home Office Presenting Officer

 

Heard at Field House on 2 May 2025

 

DECISION AND REASONS

1.              This is the appellant's appeal against the decision of the First-tier Tribunal promulgated 4 December 2024 dismissing the appellant's appeal against the respondent's decision of 13 June 2022 to refuse her application for Leave to Remain (LTR) in the UK on the basis of her relationship to her husband, Mr Varna, a British citizen, relying on the right to respect for family life pursuant to article 8 ECHR.

2.              In granting permission to appeal on 22 January 2025, the First-tier Tribunal Judge considered it arguable that the First-tier Tribunal had failed to consider insurmountable obstacles to family life continuing outside the UK (in Nepal), pursuant to EX1 and EX2 of Appendix FM of the Immigration Rules. It was also arguable that the judge failed to properly address the issue of very significant obstacles to integration on return to Nepal and to apply a 'balance sheet' approach to the article 8 ECHR proportionality balancing exercise.

3.              At the outset of the hearing before us, Ms Tariq indicated that having had time to discuss the matter with Mr Martin, who represented the appellant at the First-tier Tribunal appeal hearing, she did not resist the appeal, conceding that it was flawed for error of law as alleged in the grounds.

4.              We note that the issue of EX1 (and EX2) was clearly raised in the appellant's skeleton argument drafted by Mr Martin and put before the First-tier Tribunal. Whilst the judge did purport to address the issues of very significant obstacles to integration, as well as exceptional circumstances, and arguably assessed proportionality, it is clear beyond doubt that the decision entirely failed to address EX1 and the issue of insurmountable obstacles to family life continuing in Nepal, in respect of which there was copious evidence as to Mr Varna's health conditions.

5.              In the circumstances, we consider the respondent's concession to have been properly made, with the consequence that we allow the appeal outright as made in error of law. Given the significance of the failure to address a central issue of the appeal, we are satisfied that no findings can be preserved. Given that there will need to be a complete remaking of the decision in the appeal we agreed with the submissions of both representatives that the proper course is for this matter to be remitted to the First-tier Tribunal to be made de novo, consistent with paragraph 7 of the Practice Statement.

 

Notice of Decision

 

The appellant's appeal to the Upper Tribunal is allowed.

 

The decision of the First-tier Tribunal is set aside.

 

The remaking of the decision in the appeal is remitted to the First-tier Tribunal to be remade with no findings preserved.

 

We make no order as to costs.

 

 

 

DMW Pickup

 

Judge of the Upper Tribunal Sitting in Retirement

Immigration and Asylum Chamber

 

 

2 May 2025

 

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