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The new immigration rules for Adult Dependant Relatives: out with the old…

This is an updated and amended version of a log post first published in 2012 written by Kezia Tobin.

Following on from the earlier posts on the July 2012 changes to the Immigration Rules, this post looks at the situation for adult dependent relatives. It will come as no surprise that the new rules raise the bar substantially for those seeking entry under this category.

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. 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 in the UK.

What do the rules say?

The new rules are set out in Appendix FM to the Immigration Rules and apply to all applications made on or after 9 July 2012. The new rules replace the venerable paragraph 317, which had been in place since 1994.

The principle rules that apply 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 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 that is made without the specified evidence will always be refused and 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 own guidance to its caseworkers in the Immigration Directorate Instructions (Appendix FM Section FM 6.0) defines ‘personal care’ as requiring assistance with everyday tasks such as washing, cooking or cleaning.

The policy document 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.

What case law is there?

Despite the rules being in place for over three years at the time of writing, the immigration tribunal has not seen fit to report a case on the interpretation of the Adult Dependent Relative rules or on how much scope there might be for allowing such cases outside the immigration rules on human rights grounds.

There is one potentially useful case that is unreported: Timiro Nour Osman v ECO, Riyadh OA/18244/2012. In Timiro, Professor Grubb, a senior member of the Upper Tribunal, allowed an appeal against refusal under the adult dependent relative route.

Professor Grubb held at paragraph 33 that the question of whether there is anyone in the country who could provide the necessary care includes consideration of whether the carer should be a member of the family and all the circumstances and evidence:

This latter requirement undoubtedly imposes a significant burden of proof upon an individual to show that the required level of care is not available and no one can reasonably provide it in the individual’s country. An example where that latter requirement might well be satisfied would be where the “required level of care” needed requires a particular type of carer, for example a close family member, none of whom live in the individual’s country. The evidence would have to establish, in such a case, the need for a particular type of carer such as a family member and not simply that the individual required personal care from someone. In many circumstances, the “required level of care” to perform such everyday tasks as cooking, washing, and to assist mobility are likely to be capable of being performed not just by family members who do not live in that individual’s country. But, it is equally possible to contemplate, having regard to cultural factors, that needed “personal care” involving intimate or bodily contact may require a gender-specific carer from the individual’s family. What is the “required level of care” and who may appropriately provide it will depend upon the circumstances and the evidence in any given case.

If seeking to advance human rights arguments, the key UK case on family life between adult dependent relatives is Kugathas v Secretary of State for the Home Department [2003] 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 The Secretary of State for the Home Department [2015] EWCA Civ 630, discussed here on Free Movement: When is Article 8 private and family life engaged?

It may also be useful to refer to the case of Kaur (visit appeals; Article 8) [2015] UKUT 487 (IAC). The appellant was the 83 year old widowed mother of the sponsor. She wanted to visit her son and grandchildren at their home in the United Kingdom, who had lived with her until recently. Although it is a visit visa case and it failed on its facts, it is an example of the 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 [2009] EWCA Civ 834, in which the Court of Appeal demolished a series of errors committed by the immigration tribunal and urged a holistic approach to the assessment of private and family life.

What has changed from the old rules?

The new rules mark a clear departure from the old rules, as very clearly stated within the Home Office’s guidance to its own caseworkers:

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.

Those complaining that the impact of the rules is harsh should understand that this is very much the intention of the new rules.

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.

Making an application

Applications for Adult Dependant Relatives must be made online. The fee at the time of writing is £2,141 (valid from 6 April 2015).

If the application succeeds (almost none do), Indefinite Leave to Remain (ILR) will be granted.

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 2012 UK immigration rules and if Surinder Singh rights are engaged the only additional test that needs to be met is whether the family member is dependent.

To find out more about Surinder Singh applications read my blog post Surinder Singh immigration route or for a fuller explanation purchase my Surinder Singh ebook.

Comment

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 which you can read here: Harsh, Unjust, Unnecessary: Report on the Impact of the Adult Dependent Relative Rules on Families & Children.

The ADR 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.

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. Despite empty government talk of valuing the elderly and families, they are no longer welcome in the UK.


This is an expanded version of a blog post originally written by Kezia Tobin

Colin Yeo
Colin Yeo A barrister specialising in UK immigration law at Garden Court Chambers in London, I have been practising in immigration law for 15 years. I am passionate about immigration law and founded and edit the Free Movement immigration law blog.

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