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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 >> UI2025000749 & Ors [2025] UKAITUR UI2025000749 (2 May 2025)
URL: http://www.bailii.org/uk/cases/UKAITUR/2025/UI2025000749.html
Cite as: [2025] UKAITUR UI2025000749

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IN THE UPPER TRIBUNAL

IMMIGRATION AND ASYLUM CHAMBER

Case Nos: UI-2025-000749

UI-2025-000750

UI-2025-000751

 

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:

" 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."

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

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