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

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IN THE UPPER TRIBUNAL IMMIGRATION AND ASYLUM CHAMBER	Case Nos: UI-2024-005661 UI-2024-005663
	First-tier Tribunal Nos: HU/60004/2023 HU/60006/2023

 

THE IMMIGRATION ACTS

Decision & Reasons Issued:

On the 12 February 2025

 

Before

 

DEPUTY UPPER TRIBUNAL JUDGE GRIMES

 

Between

 

Purna Subba Gurung (First Appellant)

Rijen Gurung (Second Appellant)

(NO ANONYMITY ORDER MADE)

Appellants

and

 

Entry Clearance Officer

Respondent

Representation :

For the Appellant: Ms K McCarthy, Counsel

For the Respondent: Mr E Tufan, Home Office Presenting Officer

 

Heard at Field House on 4 February 2025

 

DECISION AND REASONS

1.               The Appellants, citizens of Nepal, appeal with permission against the decision of First-tier Tribunal Judge Chana, promulgated on 3 September 2024, dismissing their appeals against the decisions of the Entry Clearance Officer dated 21 July 2023 refusing their applications for entry clearance to join the first Appellant's father, Santa Bahadur Gurung, a former member of the Brigade of the Ghurkhas (the sponsor). The second Appellant is the son of the first Appellant and grandson of the sponsor.

2.               First-tier Tribunal Judge Chana dismissed the appeals finding that the Appellants had not demonstrated that Article 8(1) is engaged in the circumstances of this case.

3.               It is contended in the Grounds of Appeal that the judge erred in her approach. In Ground 1 it is contended that the judge erred in finding that Article 8(1) is not engaged by the Appellants' relationship with the Sponsor. It is contended in Ground 2 that the judge erred in failing to consider the uncontested evidence as to why the second Appellant is in the sole custody of his father and the sister is in the sole care of her mother and that the judge erred in mis-recording the evidence.

4.               At the hearing, Ms McCarthy relied upon the grounds in her oral submissions. She was able to clarify, after consideration of the papers, that the document referred to in Ground 2 as a divorce agreement was in fact the statement of the first Appellant's former wife dated 27 May 2024 at page 355 of the Upper Tribunal consolidated bundle.

5.               Mr Tufan maintained the position on behalf of the Secretary of State that the judge properly considered whether Article 8(1) is engaged, that she considered all of the evidence, made some negative credibility findings and concluded that Article 8(1) was not engaged. In his submission, these were findings open to the judge.

Decision on Error of Law

Ground 1

6.               In Ground 1 it is contended that the judge erred in finding that Article 8(1) is not engaged by the Appellant's relationship with the Sponsor.

Ground 1 i

7.               It is contended that the judge erred in giving weight to the choice of the family members to end family life in 2011 without considering the wider circumstances contrary to the guidance in the case of Rai v Entry Clearance Officer, New Delhi [2017] EWCA Civ 320. It is contended that the judge failed to recognise the multigenerational family unit existing at that time. It is argued that the judge's finding at paragraph 17 that the Appellant's father chose to leave Nepal when he did to settle in the UK and that therefore his family life did not subsist under Article 8(1) when he left the country because the Appellant was married and over the age of 18, is ambiguous in that it is unclear whether the judge meant that family life ended because of the choice of the sponsor to settle in the UK or because the first Appellant was married and over 18. It is contended that the judge failed to give weight to the involuntary nature of the separation of the family members, here there was no route under which family members aged over 18 could apply to come to the UK as there was no policy route, the Article 8 case law had not yet been clarified and the high cost of applications was a further restriction. It is contended that if, in the alternative, the judge meant that family life ended when the first Appellant married, this shows that she failed to consider the wider family circumstances, as the Appellant and his then wife lived in a multigenerational family unit with the sponsor in the sponsor's house with other family members pooling resources and supporting one another.

8.               At paragraph 39 of the decision of Rai, Lindblom LJ said;

"... But that, in my view, was not to confront the real issue under article 8(1) in this case, which was whether, as a matter of fact, the appellant had demonstrated that he had a family life with his parents, which had existed at the time of their departure to settle in the United Kingdom and had endured beyond it, notwithstanding their having left Nepal when they did. "

9.               The judge here properly identified that the main issue in the case is whether Article 8 is engaged and considered the appropriate case law and legal basis [11-13]. The judge looked at whether the first Appellant had a family life with the Sponsor at the time of the sponsor's departure from Nepal in 2010 to settle in the UK.

10.           The judge noted at paragraph 14 that the first Appellant was married when the Sponsor left for the UK. She went on to say that the Appellant's brother said in his witness statement that the Sponsor did not apply for settlement for the Appellant because he was married and no provision had been made for adult married children. The judge found that the first Appellant had formed an independent family unit with his wife and two children at the date of the Sponsor's departure to the UK. Contrary to the assertion in the grounds, at paragraph 15 the judge took into account the claim that the Appellant lived in the family home with his father before he came to the UK for settlement.

11.           The judge went on at paragraph 17 to find that the Appellant's father chose to leave Nepal at the time he did to settle in the UK and that the first Appellant's family life did not subsist at that time because the Appellant was married and over the age of 18, having formed his own independent family unit.

12.           In my view it is clear that these findings are in the context of the earlier findings at paragraphs 14 and 15. It is clear that the judge was aware of the circumstances in which the first Appellant was living with his father before his father came to the UK. I consider that the findings at paragraph 17 are not ambiguous as contended in the grounds, it is clear tht the judge gave weight to the choice made by the Sponsor, acknowledging at paragraph 14 the involuntary nature of separation of the family members, considering the wider circumstances of the decision and the family circumstances. The judge also clearly understood that at the time of the departure of the Sponsor to the UK the first Appellant and his then wife lived within the Sponsor's family unit.

Ground 1 ii

13.           It is contended that the judge failed to consider relevant evidence of the first Appellant's financial dependence on the Sponsor where she said that the fact that the father sends financial support does not in itself mean that the Appellant is financially dependent on the Sponsor [16]. It is further contended that the judge erred at paragraph 15 in that she failed to consider the wider evidence of the first Appellant's need for financial support from his father, and appears to be applying a test of dependency of necessity for engagement of Article 8(1) rather than the lower legal test of whether there is real or effective or committed support. It is contended the financial support does not have to be indispensable to engage Article 8(1).

14.           In my view it is clear that the judge accepted, as the Respondent had, that the Appellant receives money from the Sponsor and the money was sent directly to him since 2023 [16]. The judge took into account that the first Appellant is no longer living in the family home but is in rented property [15]. In my view the judge was entitled to take into account that, even if the Appellant is receiving some financial assistance from the Sponsor, that in itself does not mean the Appellant is financially dependent on the Sponsor. It is clear from reading paragraphs 15-16 that the judge considered financial reliance as one factor but not the determining factor in assessing whether there were more than the normal emotional ties between the Appellant and the Sponsor.

 

Ground 1 iii

15.           It is contended that the judge erred at paragraph 16 in considering only the emotional support the first Appellant receives from his father and failing to consider the Sponsor's evidence of his closeness to the first Appellant as his elder son and how much he misses him and needs his presence in the UK.

16.           However, it is clear to me reading the decision as a whole, that the judge was aware of the evidence from the Sponsor noting, for example, at paragraph 16 that the Appellant and the Sponsor communicate with each other using social media which shows emotional dependency. The judge was entitled to conclude that it is expected that parents and adult children will communicate with each other when living apart and that this does not in itself mean emotional dependency.

17.           In my view it is clear that the judge took into account all relevant factors before reaching the conclusions as to Article 8(1). Ground 1 is not made out.

Ground 2

Ground 2 i

18.           It is contended that the judge erred in failing to consider the uncontested evidence as to why the second Appellant is in the sole custody of his father and the sister is in the sole care of her mother. It is contended that the judge failed to take into account the fact that the first Appellant and his former wife had an acrimonious divorce and failed to take into account the divorce agreement which spoke to the day-to-day care of the daughter by the mother and stating that the son would be in the father's day-to-day care. The Home Office, it is said, did not attend the hearing to question the witnesses and did not raise any questions about the reasons for the divorce and, as the divorce terms had not been questioned by the Secretary of State, it was not appropriate for the judge to raise this in her reasoning in the refusal decision.

19.           In my view the judge was clearly aware of the evidence that the Appellant and his former wife were divorced. The divorce certificate was before the judge. The document referred to as the divorce agreement in the grounds was in fact simply a statement from the Appellant's former wife dated 27 May 2024 made for the hearing in relation to the situation at that time, not an official court document made in connection with the divorce proceedings as claimed.

20.           As set out in the case of Rai, it was for the judge to make an assessment as to the circumstances when the Sponsor left Nepal and as to the situation as to whether family life endured beyond that. It was therefore in this context that the judge was entitled to look at the evidence as to the current circumstances. I do not accept the submission that this matter was not before the judge. It is clear from the refusal decisions, the skeleton arguments and the Respondent's review, that the primary issue for determination was whether Article 8(1) is engaged, that is whether the Appellants can demonstrate that family life with the Sponsor existed at the time of the Sponsor's departure to settle in the UK and had endured beyond that. In these circumstances the current circumstances of the Appellants must be a matter for the judge to consider.

21.           The judge acknowledged that the Appellant and his wife were now divorced and noted that the fact that he is now divorced does not mean that he returned to a family life with his Sponsor [14]. The judge took into account that the first Appellant is an adult with two children living in Nepal independently living in a rented property, as he claims, with his son [15]. The judge rejected the evidence that the first Appellant no longer has contact with his daughter for the reasons given in paragraphs 15 and 20. This all went to the finding that the Appellant's family life was in Nepal with his son and daughter.

22.           The judge did not go behind the evidence that there is a divorce between the first Appellant and his former wife. However, she did assess of the credibility of the claims as to the current circumstances. The judge referred to the statement from the Appellant's ex-wife at paragraph 20 and considered that there were credibility issues arising from inconsistencies between the evidence of the first Appellant, his ex-wife and his brother. The judge was entitled to take these matters into account in assessing the credibility of the evidence as to the Appellants' current circumstances.

Ground 2 ii

23.           It is contended that the judge mis-recorded the evidence at paragraph 20 where she stated, "At the hearing the appellant was not able to give a credible explanation for why his wife divorced him, other than to say that it is because he did not have a job. I find I find [sic] I am [sic] not been told the whole truth about the circumstances of this family."

24.           It is highlighted in the grounds that the Appellants live in Nepal and did not attend to give evidence before the Tribunal. It is acknowledged that the first Appellant's brother gave evidence but he could not, it is said, know the ins and outs of why his sibling and former sister-in-law divorced. It is contended that this matter was never put in issue.

25.           At the hearing before me Ms McCarthy checked her notes and confirmed that the first Appellant's brother, Mr Dipak, who gave oral evidence in the First-tier Tribunal hearing, had been asked about whether the first Appellant's wife had divorced him because he did not have a job. She did not therefore dispute the content of the final sentence of paragraph 20 as it related to the oral evidence of the first Appellant's brother. In my view it is clear that this is simply a slip and that the judge meant to refer to the Appellant's brother being unable to give a credible explanation for why the Appellant's wife had divorced the first Appellant, other than to stay it is because he did not have a job. In my view this is clearly a slip and not a material error.

Conclusion

26.           For the reasons set out above I find that there are no material errors in the decision of the First-tier Tribunal judge. The judge was entitled to conclude at paragraph 21 that the Appellant's family life is in Nepal with his son and daughter and that he has no family life with anyone in the UK in the Article 8 sense.

Notice of Decision

27.           The decision of First-tier Tribunal Judge did not involve the making of an error of law and I uphold it.

 

A Grimes

Deputy Judge of the Upper Tribunal

Immigration and Asylum Chamber

 

5 February 2025