Other dependent relatives

autumn leaves

A rare judgment on paragraph 317 of the Immigration Rules, the ‘other dependent relatives’ category, was handed down by the Court of Appeal last month and has so far escaped reporting here on Free Movement due to other commitments. The case is Mohamed v Secretary of State for the Home Department [2012] EWCA Civ 331.

Giving the judgment of the court, Sir Stephen Sedley (as he is now referred to since retiring as a full time judge) started by setting out the issue to be decided:

This appeal raises a question of law which was identified by Sir Richard Buxton in his grant of permission to appeal: does rule 317(i)(e) cover a case in which the very financial dependency which qualifies a parent or grandparent for entry to the United Kingdom is also what keeps their circumstances from being “the most exceptional compassionate circumstances”?

The relevant rule, 317(i)(e), reads as follows:

(e) a parent or grandparent under the age of 65 if living alone outside the United Kingdom in the most exceptional compassionate circumstances and mainly dependent financially on relatives settled in the United Kingdom

The argument, which was an interesting one, was whether the decision maker has to apply a ‘but for’ test in which but for the support provided the applicant would be living in the most exceptional circumstances or a ‘notwithstanding’ test whereby notwithstanding the support provided the applicant is nevertheless still living in the most exceptional compassionate circumstances.

Sir Stephen prefers the latter of these possibilities as it requires a less convoluted reading of the rule and the test is still not so stringent that non-one can succeed. Applicants suffering from dementia or terminal illness might well be unable to cope even with financial support, for example.

This case, combined with Senanayake v Secretary of State for the Home Department [2005] EWCA Civ 1530 on the meaning of ‘compassionate circumstances’, makes clear that the hurdles facing an applicant under this rule are very considerable.

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The Free Movement blog was founded in 2007 by Colin Yeo, a barrister at Garden Court Chambers specialising in immigration law. The blog provides updates and commentary on immigration and asylum law by a variety of authors.