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Refusal of leave to remain for their carer did not breach human rights of elderly couple

In this very sad case the carer for an elderly couple aged 91 and 93 applied for leave to remain on the basis that it would breach the rights of the elderly couple if she were no longer able to care for them. One of the couple suffered from Alzheimer’s and required 24 hour care and the carer had been employed since January 2014. The claim failed, despite the best efforts of my colleague Mark Symes, who acted for the carer and couple. Essentially, the tribunal held that the Home Office had been entitled to conclude that there might be alternative carers available to the couple.

The carers’ policy was not engaged because the carer was neither relative nor friend of the elderly couple concerned.

However, the tribunal accepted that the human rights of the elderly couple were engaged by the situation and applied the Beoku-Betts case. This did not assist because there was no breach of human rights; the availability of alternative adequate carers was fatal in this respect also.

Upper Tribunal Judge Grubb concludes:

Before I conclude this judgment the circumstances of Dr and Mrs Jost, especially Mrs Jost, are worthy of the empathy and respect for how they cope with their lives. It is entirely understandable that they should want to retain the applicant, who has proved herself as a carer of Mrs Jost in particular. This Tribunal, however, can only interfere with the respondent’s decision if it is unlawful. The circumstances falling as they do outside the Rules and the carers’ policy are such that I am unable to say that the respondent’s decision was irrational or otherwise unlawful on public law principles or breached Mrs Jost’s rights.

On different facts (much longer term care by the carer and skills which were virtually unique to the carer) I am aware that a similar claim recently succeeded in the First-tier Tribunal, so such cases should be seen as dependent on the facts.

Source: Sison, R (on the application of Sison) v Secretary of State for the Home Department (IJR) [2016] UKUT 33 (IAC) (8 January 2016)

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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