IN THE UPPER TRIBUNAL IMMIGRATION AND ASYLUM CHAMBER |
Case Nos: UI-2025-000749 UI-2025-000750 UI-2025-000751 |
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First-tier Tribunal Nos: HU/58261/2023 HU/58259/2023 HU/58262/2023
LH/03658/2024 LH/03656/2024 LH/03657/2024 |
THE IMMIGRATION ACTS
Decision & Reasons Issued:
On 2 nd of May 2025
Before
UPPER TRIBUNAL JUDGE PERKINS
DEPUTY UPPER TRIBUNAL JUDGE ANZANI
Between
SARASWATI GURUNG (First Appellant)
SURAJ GURUNG (Second Appellant)
DHIRAJ GURUNG (Third Appellant)
Appellants
and
SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation :
For the Appellants: Mr R Jesurum, Counsel instructed by Direct Public Access
For the Respondent: Mr K Ojo, Senior Home Office Presenting Officer
Heard at Field House on 14 April 2025
DECISION AND REASONS
(extempore)
1. The appellants are nationals of Nepal born on 01 January 1969, 26 September 1978 and 16 October 1980. They are siblings. On 21 March 2023 they applied for settlement as the adult children of their mother ('the sponsor'), a widow of an ex-Ghurkha soldier. Those applications were refused by the respondent on 07 June 2023.
2. The appellants appealed to the First-tier Tribunal. That appeal was dismissed by First-tier Tribunal Judge Chana ('the judge') by way of decision dated 19 December 2024. Permission to appeal to the Upper Tribunal was granted on all grounds by First-tier Tribunal Judge Chinweze on 07 February 2025.
3. The appellants advance four grounds of appeal. Of these the most notable error in our judgment is that when referring to the relevant legal test for consideration at paragraph 12 of the determination, the judge purports to quote a passage from the Court of Appeal's decision in Kugathas [2003] EWCA Civ 31, namely paragraph 19 of that decision, but misquotes what was said by the court therein.
4. Contrary to the judge's assertion, Lord Justice Sedley did not state at paragraph 19 that what is required is "dependency over and above normal emotional ties". This is a mischaracterisation of that judgment. The correct and widely accepted legal test, as set out at paragraph 17 of Kugathas, states as follows:
Thus the correct legal test is not dependency over and above normal emotional ties but rather real or committed or effective support. At no point in her decision does the judge refer to the concept of support. We agree with the appellants' second ground of appeal that the judge's analysis of the facts suggest that she did not do so because she did not have that concept in mind, but rather the higher threshold of dependence. As the Court of Appeal made clear in Rai [2017] EWCA Civ 320 at paragraph 36, the concept to which the decision maker will generally need to pay attention is support. We are satisfied that the judge further erred in failing to correctly apply the guidance given in Rai and in failing to consider the principle issue that fell to be considered, namely support between the appellants and their sponsor.
5. Mr Ojo appearing on behalf of the respondent indicated at the outset of this hearing that he had no submissions to make in response to the appellants' grounds of appeal.
6. We are satisfied, having considered the grounds, that the judge materially erred by misdirecting herself as to the correct legal test to be applied. That error undermines the judgment as a whole, such that the decision must be set aside with no findings preserved.
Notice of Decision
7. We find that the judge materially erred in law. The decision of the First-tier Tribunal is set aside in its entirety with no findings preserved. The decision is remitted to the First-tier Tribunal for a de novo hearing before a judge other than First-tier Tribunal Judge Chana.
S. Anzani
Deputy Judge of the Upper Tribunal
Immigration and Asylum Chamber
28 April 2025