Tsering Lama v Secretary of State for the Home Department

Evidence given by video recording is admissible in the Upper Tribunal, but its weight depends on its nature and context. The Tribunal must account for the absence of cross-examination and judicial questioning, the reduced ability to assess demeanour, recording quality and any sign that evidence has been prompted or prepared.

Family life under Article 8 is fact-sensitive. It may arise outside conventional family relationships where there is real, committed personal support, emotional bonds and dependency. In an Article 8 assessment outside the Immigration Rules, failure to meet the Rules is the starting point, not the end of the inquiry. All material circumstances must be balanced against effective immigration control, including a person’s value to the community where it is relevant.

The appellant, a Nepalese national who had always remained lawfully in the United Kingdom, sought leave to remain on private-life grounds. His case centred on his long-standing relationship with an elderly, severely disabled actor for whom he had become the principal live-in carer and emotional support.

The First-tier Tribunal dismissed the appeal. It found that the appellant could not meet paragraph 276ADE of the Immigration Rules, that no family life existed, and that his private life should receive no weight. The Upper Tribunal had previously set that decision aside for a material error of law because it failed to carry out an adequate proportionality assessment.

On remaking the decision, the Tribunal admitted video-recorded evidence and determined whether removal would be a disproportionate interference with private and family life under Article 8 ECHR.

1. Appeal allowed. The refusal of leave to remain was a disproportionate interference with the private life of the appellant and Mr R under Article 8 ECHR, enforceable through section 6 of the Human Rights Act 1998.

2. Video-recorded witness evidence was admissible. No rigid rule governs its weight. The Tribunal must evaluate the particular evidence and context, including that it has not been tested by cross-examination or judicial questioning, the limited assessment of demeanour, recording quality, and whether the evidence appears prompted or read from a text.

3. The Tribunal found family life between the appellant and Mr R. Their non-blood relationship involved profound friendship, mutual emotional dependency, unilateral physical dependency, committed support and a clear sense of duty. There is no exhaustive definition of family life under Article 8, and no hard rule prevents it arising outside conventional familial relationships. That finding was not essential, however, because the appellant’s developed private life independently engaged Article 8.

4. Following Hesham Ali v Secretary of State for the Home Department [2016] UKSC 60 and Huang v Secretary of State for the Home Department [2007] UKHL 11, failure to meet the Immigration Rules did not conclude the Article 8 inquiry. The Tribunal made its own fact-based proportionality assessment, while giving considerable weight to the executive assessment reflected in the Rules and to effective immigration control.

5. The public interest in immigration control was strong. The appellant nevertheless spoke English, was financially independent, had an impeccable immigration history, and had developed a highly significant private life. His precarious status attracted little weight, but at the upper end of that scale. The Tribunal could also consider other material factors, including the absence of evidence that suitable enhanced substitute care would be available and the likely end of Mr R’s acting career. Mr R’s continuing contribution to the arts and to disabled actors was a legitimate, though non-decisive, factor.

6. The relationship and care arrangements were unique and compelling. Although a substitute carer might be found in a narrow practical sense, the appellant was irreplaceable in the broader emotional and qualitative sense. Those circumstances outweighed the public interest on these intensely fact-sensitive facts.

• Upper Tribunal (Immigration and Asylum Chamber): The earlier Upper Tribunal decision, promulgated on 18 October 2016, set aside the First-tier Tribunal decision for material error of law because it had not undertaken an adequate proportionality balancing exercise. This decision remade the appeal and allowed it.
• First-tier Tribunal: Dismissed the appeal, finding that the appellant could not satisfy paragraph 276ADE of the Immigration Rules, had not established family life, and that his private life should receive no weight.