Following on from the earlier posts on the new(ish) changes to the Immigration Rules, this post looks at the situation for adult dependent relatives. It will surely come as no surprise that the new rules raise the bar substantially for those seeking entry under this heading.
The change most likely to affect all applications is the need to now demonstrate that an applicant requires a level of long-term personal care which they are unable to get in their home country, either due to cost or availability.
The Rules apply to all applications made on or after 9 July 2012 and replace the old Rule 317. They are as follows:
E-ECDR.2.1. The applicant must be the-
(a) parent aged 18 years or over; (b) grandparent; (c) brother or sister aged 18 years or over; or (d) son or daughter aged 18 years or over
of a person (“the sponsor”) who is in the UK.
E-ECDR.2.2. If the applicant is the sponsor’s parent or grandparent they must not be in a subsisting relationship with a partner unless that partner is also the sponsor’s parent or grandparent and is applying for entry clearance at the same time as the applicant.
E-ECDR.2.3. The sponsor must at the date of application be-
(a) aged 18 years or over; and (b) (i) a British Citizen in the UK; or
(ii) present and settled in the UK; or (iii) in the UK with refugee leave or humanitarian protection.
E-ECDR.2.4. The applicant or, if the applicant and their partner are the sponsor’s parents or grandparents, the applicant’s partner, must as a result of age, illness or disability require long-term personal care to perform everyday tasks.
E-ECDR.2.5. The applicant or, if the applicant and their partner are the sponsor’s parents or grandparents, the applicant’s partner, must be unable, even with the practical and financial help of the sponsor, to obtain the required level of care in the country where they are living, because-
(a) it is not available and there is no person in that country who can reasonably provide it; or (b) it is not affordable
The guidance in the IDIs define ‘personal care’ as requiring assistance with everyday tasks such as washing, cooking or cleaning. The guidance at 2.2.1 also establishes that medical evidence is required in support of any application. This marks a clear departure from the old Rules, as very clearly set out within the new IDIs:
These new rules end the routine expectation of settlement in the UK for parents and grandparents aged 65 or over who are financially dependent on a relative here.
Under the old Rules, it was all about money for applicants over the age of 65. They only had to demonstrate that they were mainly or wholly financially dependent on their UK sponsor, with nobody else to turn to financially, and were able to be accommodated without recourse to public funds. UKBA guidance in Annex F to Chapter 8 of the IDIs back in March 2010 even went so far as to state that
Where the applicant is over the age of 65 detailed enquiries will not be necessary.
The later IDIs from August 2010 also recommended that caution be taken in refusing applications for those over 65 simply on maintenance and accommodation grounds. Not any more. Under the new Rules, no distinction is made with regard to age, and the test is much more stringent. Although the ‘exceptional compassionate circumstances’ test that previously needed to be satisfied in cases involving those under 65 has been removed, the change is nevertheless likely to severely restrict the number of successful applications across the board. Article 8 arguments can (and will) still be made for those who do not meet the rules, though.
What is interesting is that this category remains one of only two under the new FM heading which is exempt from the new minimum income threshold requirements for sponsors. Instead, E-ECDR3.1 requires that the applicant show that they will be adequately maintained, accommodated, and cared for without recourse to public funds. This disparity will no doubt prompt administrative challenge of the minimum income threshold in other categories, and rightly so.
But sadly it seems that for now, any elderly family member who is living independently and simply wants to come here in their twilight years to join their family, will have to wait until they can show that they are both no longer physically capable of looking after themselves and unable to access care in their own country. Uncles and aunts are now excluded entirely, regardless of their circumstances, and it seems supergrans are no longer welcome in the UK.