The Court of Appeal has dismissed the challenge brought by campaign group Britcits to the restrictive Immigration Rules on the admission to the UK of parents, grandparents and other adult dependent relatives. The case is BRITCITS v The Secretary of State for the Home Department  EWCA Civ 368.
On 9 July 2012, the Immigration Rules on parents, grandparents and other dependent relatives were fundamentally changed, making it virtually impossible for them to be admitted to the UK to join a carer. The main stumbling blocks are these paragraphs from Appendix FM:
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
For a full run through of these rules see this earlier blog post: The new immigration rules for Adult Dependant Relatives: out with the old…
According to Home Office figures, the number of successful applications fell from 2,325 per year to an average of 162 per year when the new rules were introduced. These figures seem to be disputed, however, as the new average seems higher than expected. By the by, if the figures are accurate then this rule change made a contribution to meeting the net migration target of around 0.7% but has caused anguish to many families, who have been faced with either leaving their parents in the hands of private carers or relocating to another country to look after their parents.
Britcits brought a challenge to the new rules. The application for judicial review was dismissed by Mitting J on 20 April 2016: R (on the application of Britcits) v Secretary of State for the Home Department  EWHC 956 (Admin) (FM write up: High Court finds Adult Dependent Relative rule lawful but opens door to individual challenges).
The arguments in the Court of Appeal were that the rules for adult dependent relatives were unlawful because they:
1. Defeated the purpose of the law under which they were made and contravened previous Ministerial assurances (Padfield  AC 997).
2. Were in truth “snare and a delusion, a pretence which raises expectations without there being any real possibility of fulfilling them” (Manshoora Begum  Imm AR 385).
3. Represented a breach of Article 8 of the European Convention on Human Rights because of the interference with family life.
The arguments on behalf of Britcits were ingenious, forceful and considered. The judge records that they were skilfully advanced by Natalie Lieven QC on behalf of Britcits. Nevertheless, giving the leading judgment, Master of the Rolls Sir Terence Etherton rejected them all.
In so doing, Etherton MR held that there will not always be family life between an adult dependent parent and UK sponsor child (despite the use of the word dependent in that formulation) and that there was no inevitability that applications under the new rules would almost always fail.
Because this is a court of law and such real world practicalities are considered of little or no importance by judges, the fact that an application fee of £3,250 (for 2017-18) would have to be incurred to test this proposition is not something taken into account here.
The rules were, the Court ruled, capable of being interpreted more widely than was generally perceived to be the case:
In particular, rejection on the basis of the availability of adequate care in the ADR’s home country turns upon whether the care which is available is reasonable for the ADR to receive and of the level required for that applicant. Contrary to the submission of the appellant, those considerations are capable, with appropriate evidence, of embracing the psychological and emotional needs of elderly parents.
Particular weight should be given to the proposed policy and objectives of the new rules given that they were properly consulted on beforehand and then debated and approved in Parliament (although personally I’m not sure that the quality of debate was all that marvellous) but this had to be weighed against the “particular strength of the family bond and all the matters in favour of the particular applicant.”
No explicit challenge was brought to the Secretary of State’s guidance on adult dependent relative cases so the Court made no comment on its legality, addressing only the rules themselves.
Sales LJ gave a separate concurring judgment in which he specifically addresses the Article 8 considerations. He opined that there might well be many cases in which there was no Article 8 family life between a UK sponsor and an adult dependent relative (dependent!). In common with the Master of the Rolls, he emphasised that the “reasonableness” test in the rules was a significant one:
If the care required by an elderly relative cannot reasonably be provided overseas the relative may well be able to succeed in gaining leave to enter under the ADR rules; conversely, if the required care can reasonably be provided overseas, it is likely that it will not be disproportionate to apply the ADR rules with full force and effect in such a case.
The case may well proceed to the Supreme Court. The legal issues are certainly meaty ones.
In the meantime, there are helpful comments in both this judgment and the High Court judgment that may mitigate the worst effects of the rule and which suggest that the Home Office guidance is too tightly drawn. The question of whether care can “reasonably” be provided allows arguments about the emotional needs of the relative in question. Nevertheless, it remains hard to advise any family to make a speculative application costing £3,250 which seems statistically very likely to be rejected.