Since July 2012 the immigration rules for adult dependent relatives have been, in practice, almost impossible to meet.
Applicants need to demonstrate that they require a level of long-term personal care that they are unable to get in their home country, either due to cost or availability. This makes it impossible for the parents, grandparents or other adult dependent relatives of British citizens and those present and settled in the UK to join their family here.
What do the rules say?
The rules are set out in Appendix FM to the Immigration Rules. The main ones are as follows:
E-ECDR.2.1. The applicant must be the-
(a) parent aged 18 years or over;
(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 key provisions likely to cause the most difficulties are paragraphs E-ECDR.2.4 and 2.5, marked in bold. Other rules also have to be met, including the “suitability” requirements of the rules. Applications from within the UK are no longer permitted: applications must be made from abroad.
What evidence is required?
There are also mandatory evidential requirements specified in Appendix FM-SE:
33. Evidence of the family relationship between the applicant(s) and the sponsor should take the form of birth or adoption certificates, or other documentary evidence.
34. Evidence that, as a result of age, illness or disability, the applicant requires long-term personal care should take the form of:
(a) Independent medical evidence that the applicant’s physical or mental condition means that they cannot perform everyday tasks; and
(b) This must be from a doctor or other health professional.
35. Independent evidence that the applicant is unable, even with the practical and financial help of the sponsor in the UK, to obtain the required level of care in the country where they are living should be from:
(a) a central or local health authority;
(b) a local authority; or
(c) a doctor or other health professional.
36. If the applicant’s required care has previously been provided through a private arrangement, the applicant must provide details of that arrangement and why it is no longer available.
37. If the applicant’s required level of care is not, or is no longer, affordable because payment previously made for arranging this care is no longer being made, the applicant must provide records of that payment and an explanation of why that payment cannot continue. If financial support has been provided by the sponsor or other close family in the UK, the applicant must provide an explanation of why this cannot continue or is no longer sufficient to enable the required level of care to be provided.
An application made without the specified evidence will always be refused. Any attempted appeal is also very likely to fail for this reason, so it is very important to include the specified evidence with the application.
What does Home Office policy say?
The Home Office’s guidance to its caseworkers was most recently updated in August 2017, taking into account the judgment of Britcits v Secretary of State for the Home Department  EWCA Civ 368 (more on that below).
The guidance defines “personal care” as requiring assistance with everyday tasks such as washing, cooking or dressing.
It sets out a series of examples of cases that would not or might meet the criteria. In practice, though, the Home Office will state in virtually all cases that even if a need for long-term personal care is established and there is no family member available in the country concerned, the family in the UK could and should pay for carers to visit the relative or for the relative to be placed in a care home.
The guidance goes on to state that, where the requirements of the rules are not met, the decision-maker must go on to consider
- Firstly, whether, in the particular circumstances of the case, the ECHR Article 8 right to respect for private and family life is engaged; and
- If it is, secondly, whether there are exceptional circumstances which would render refusal a breach of Article 8 because it would result in unjustifiably harsh consequences for the applicant or their family.
On the first point, the guidance states that “in order to establish that family life exists between adults who are not partners, there must be something more than such normal emotional ties”.
If Article 8 is engaged, the decision-maker must assess whether there are “exceptional circumstances which would render refusal a breach of Article 8”. The policy document does not provide detailed guidance as to what are exceptional circumstances except that they are
circumstances in which refusal of the application would result in unjustifiably harsh consequences for the individual or their family such that refusal would not be proportionate under Article 8.
It goes on to say that
“Unjustifiably harsh consequences” are ones which involve a harsh outcome(s) for the applicant or their family which is not justified by the public interest, including in maintaining effective immigration controls, preventing burdens on the taxpayer, promoting integration and protecting the public and the rights and freedoms of others.
More detailed guidance can be found in the Immigration Directorate Instructions on Family Life as a Partner, which is also discussed in this blogpost.
What is clear is that it is a high threshold and the Secretary of State will rarely consider that this test is met.
What case law is there?
There is little case law on the interpretation of the adult dependent relative rules but the most significant clearly is the Britcits case mentioned earlier. You can read a full write-up of that decision, but in summary: the Court of Appeal dismissed the challenge to the rules but found that they could be interpreted more generously than had been argued. In particular, it held that the question of whether care can “reasonably” be provided allows for arguments about the emotional needs of the relative in question.
If seeking to advance human rights arguments, the key case on family life between adult dependent relatives is Kugathas v Secretary of State for the Home Department  EWCA Civ 31, which specifies that more than the normal emotional ties must be shown even to establish that there is a family life in the first place. This should however be read in light of the more recent judgment in Singh v Secretary of State for the Home Department  EWCA Civ 630, which is also discussed on Free Movement.
It may also be useful to refer to the case of Kaur (visit appeals; Article 8)  UKUT 487 (IAC). The appellant was the 83-year-old widowed mother of the sponsor. She wanted to visit her son and grandchildren, who had lived with her until recently, at their home in the UK. Although it is a visit visa case and it failed on its facts, it is an example of the Upper Tribunal finding that family life was engaged between an adult child and his parent.
On proportionality probably the most helpful case to reference is ZB (Pakistan) v Secretary of State for the Home Department  EWCA Civ 834, in which the Court of Appeal demolished a series of errors committed by the tribunal and urged a holistic approach to the assessment of private and family life.
Making an application
Applications for adult dependant relatives must be made online. The fee at the time of writing (2017/18) is £3,250. You can expect this to rise in April 2018.
If the application succeeds (almost none do), Indefinite Leave to Remain will generally be granted. The exception is for those applying as the relatives of a person in the UK with refugee leave or humanitarian protection, who will get entry clearance which will expire at the same time as the sponsor’s limited leave and subject to a condition of no recourse to public funds.
Are the rules likely to change?
In December 2016 the Home Office published a review of the adult dependent relative rules. The review found that the number of visas issued to parents and grandparents plummeted from 2,325 per year to an average of 162 per year when the new rules were introduced. The number of successful cases each year has actually fallen, and most of the visa grants involved an initial refusal followed by an allowed appeal.
The review considered whether the rules were meeting their policy objectives and whether alternative rules might be introduced, such as compulsory health insurance, an increased NHS surcharge or payment of a financial bond. It concluded that the rules would not be changed.
It therefore seems that the adult dependent relative rules will continue in their current form for the foreseeable future. There appears to be little appetite to permit elderly relatives to enter the United Kingdom.
Does Surinder Singh apply to adult dependent relatives?
The short answer to this question is “yes”. In short, if a British citizen moves to another EU member state for a certain period to live, work or study and meets certain conditions, that British citizen and his or her family members, including any relatives in the ascending line (parents or grandparents), may relocate back to the UK in reliance on EU free movement law. This is often referred to as the “Surinder Singh route” after the case that first established this EU right of free movement.
EU free movement law is much more respectful of the family unit than the UK Immigration Rules. If Surinder Singh rights are engaged, the only additional test that needs to be met is whether the family member is dependent.
Of course, what will become of the Surinder Singh route after Brexit is anybody’s guess. In their proposals on the position of EU citizens in the UK, but also British citizens in the EU, following Brexit, the government is silent on this point.
No longer welcome
The impact of the new Adult Dependent Relative rules is permanently to separate elderly relatives from their children, or to force the children to leave the UK to care for their parents. This is simply cruel in many cases. The effects are addressed in a detailed piece of research by JCWI: “Harsh, Unjust, Unnecessary: Report on the Impact of the Adult Dependent Relative Rules on Families & Children” (July 2014).
The ADR category remains one of only two under the new Appendix FM heading which is exempt from the 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.
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.
Only very rarely will sponsors be able to show that no-one can reasonably care for their relatives abroad, including professional carers, although the Court of Appeal’s reminder that emotional needs are to be taken into account when assessing the rules might assist some applicants.
The Rules now also recognise that, even where they are not met, an assessment of Article 8 must take place. But again, this will only lead to a grant of leave in “exceptional circumstances which would result in unjustifiably harsh consequences”.
Uncles and aunts are now excluded entirely, regardless of their circumstances. Despite empty government talk of valuing the elderly and families, they are no longer welcome in the UK.
This article was first published in December 2015. It has been revised and updated so that it is correct at the new date of publication. Kezia Tobin and Nath Gbikpi contributed.