New Decision Brings Hopes To Families Wishing To Bring Adult Dependent Relatives To The UK

- By Oshin Shahiean of OTS Solicitors

If you are settled in the UK and wish to bring an elderly parent into the country so you can help take care of them, the difficulty of obtaining an Adult Dependent Relative (ADR) Visa for them is likely to leave you reeling in shock.

The Adult Dependent Relative (ADR) Rules came into force in July 2012, as part of a series of overall changes to the UK’s family migration policy.  Figures show that after the rule change, only 34 ADR visas were granted between November 2012 and September 2013.

The Joint Council for the Welfare of Immigrants has stated that the ADR rules are “unnecessarily harsh, causing families suffering and anxiety, and are rationally disconnected from the Government’s policy on family values”.

However, some good news has recently come out of the Upper Tribunal (immigration and asylum Chamber) in the form of President McCloskey upholding an appeal following the refusal of an ADR visa.  Significantly, the appeal was successful on human rights grounds.

Background to the Decision

We have commented on the draconian requirements the Government developed for parents and grandparents seeking entry into the UK to join their children in an earlier blog.  To be eligible for an ADR Visa, applicants must be dependent on a parent, grandchild, brother, sister, son or daughter of someone living permanently in the UK.  You will need to prove that:

  • you need long-term care to do everyday personal and household tasks
  • the care you need is not available or affordable in the country you live in
  • the person you’ll be joining in the UK will be able to support, accommodate and care for you without claiming public funds for at least five years
  • you’re 18 or over

Although this seems straightforward, the thresholds for proving you need long-term care for everyday tasks and that the care is not available or affordable in the country where the applicant currently resides are undefined in the immigration rules.  After the rules were introduced in 2012, entry clearance officers were accused of refusing applicants an ADR Visa if a paid carer was available in the applicant’s home country, and they could be paid for from income derived from the applicant’s relatives in the UK.

In 2013, an unreported case, Osman v ECO [OA/18244/2012] established guidance that such an approach by the UKBA (UK Border Agency) is unlawful.

This particular case involved an elderly woman who suffered from schizophrenia and other mental-health issues, which made it difficult for her to leave the house.

The following principles were established by Senior immigration Judge (SIJ) Craig and are worth setting out in full:

  1. 1.      ‘the appellant must establish that he or she requires “long-term personal care to perform everyday tasks’. [para 28], and
  2. 2.      ‘that need must arise as a result of “age, illness or disability”, and consequently; even if the need for the personal care is established, if it does not arise from one or more of the three stated conditions of the individual, then the requirements of the Rule are not met’. [29]
  3. 3.      ‘The reference to “personal care” is to be distinguished from “medical” or “nursing” care and would appear to mean that the care that has to be provided is “personal” rather than, for example, support provided by mechanical aids or medication. The need is for “personal” care, in other words, care provided by another person. The “personal care” must be required “long-term” rather than on a temporary or transitional basis. And, further, the provision of care must be necessary in order that an individual may perform “everyday tasks”’. [30] 
  4. 4.      ‘The relevant IDI (dated 13 December 2012) at para 2.2.1 gives by way of example of “everyday tasks” that an individual is incapable of “washing, dressing and cooking”. Those are obviously aspects of an individual’s life properly described as “everyday tasks” but that phrase has a wider meaning which would include, example, the management of an individual’s bodily functions, difficulties with mobility and communication. Other activities of daily living will also be included within the phrase “everyday tasks”. [31] 
  5. 5.      ‘Thirdly, E-ECDR 2.5 requires an individual to establish that the “required level of care in the country where they are living” cannot be obtained even with the practical and financial help of the sponsor because either it is not available or there is no person in that country who could reasonably provide it or it is not affordable. Consequently, if the sponsor can provide a relative with the finances which will deliver the “required level of care” in the relative’s own country then the requirements of the Rule will not be met unless the “long-term personal care” is not available and no one in the individual’s country can reasonably provide it. [32] 
  6. 6.      ‘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’. [33] 

SIJ Craig then stated that the First Tier Tribunal Judge had failed to take into account a doctor’s report that stated that due to the applicant’s mental condition, she was effectively “trapped” in her room, and she had limited mobility due to chronic arthritis.  The medical report stated that the applicant’s quality of life would significantly improve if she were able to get out and about in the community with the love and support of caring relatives.

SIJ Craig stated:

In my judgment, “everyday tasks” includes mobility and, as a matter of common sense, to include the ability to leave one’s home and interact with the world outside engaging in everyday living activities. In my judgment, the Judge failed to take this into account when he found that the appellant’s needs were, in effect, provided for by the carer of the appellant’s mother from the local Somali community. As a result, that finding cannot stand. [40]

Finally SIJ Craig concluded that an ADR Visa should be granted because, due to the applicant’s schizophrenia and mental health conditions, even if adequate personal and medical care were available in her home country, the carers would be “like a stranger” to the applicant and therefore ‘adequate care’ could only truly be provided by a close family member.

ADR Visa and Appeals on human rights Grounds

The recently reported case of Dasgupta (error of law – proportionality – correct approach) [2016] UKUT 28 (IAC) has positively stated that adult dependent relatives can succeed in an appeal based on Article 8 of the European Convention on human rights

Article 8 – Right to respect for private and family life

1. Everyone has the right to respect for his private and family life, his home and his correspondence.

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

In Dasgupta, the Upper Tribunal was asked to consider the following issues:

  • Whether family life arose between an 85year old parent with his UK adult settled daughter; correspondingly whether family life similarly arose with that same applicant as a grandparent  in relation to his daughter’s minor British children;
  • The approach to be taken by the Upper Tribunal in error of law appeals;
  • Re-iteration by the Upper Tribunal as to the ultimate question for the Tribunal in Article 8 appeals in relation to the proportionality exercise as per Huang v Secretary of State for the Home Department [2007] 2 AC 167.

Among the many conclusions to come out of the decision, the following are important when considering ADR appeals:

  • The scope of protection under Article 8 is elastic, and not able to be defined by precise measurement;
  • The rule of Edwards v Bairstow [1956] AC 14 was applied. In that case,  in an error of law appeal, the House of Lords applied the standard of ” the true and only reasonable conclusion” open to the Commissioners and, notably, in doing so, employed the language of ” perversity“.  They defined the latter as a case in which – ” ….. the facts found are such that no person acting judicially and properly instructed as to the relevant law could come to the determination under appeal.” .  Applying this principle, the Upper Tribunal concluded that no error of law had been made by the First Tier Tribunal.
  • The First Tier Tribunal’s decision allowing the appeal on exceptional circumstances, outside the immigration rules, lay within the range of outcomes available and was not contradicted by any evidence.

Conclusion

As the UK Government continues to clamp down on family visas as a way to control immigration and appease the voting public who see migrants as the source of the nation’s woes, the Upper Tribunal’s decision will provide some assistance to those struggling to bring frail, lonely and dependent parents or grandparents to join them in the UK.

If you wish to bring a parent or grandparent to the UK to care for them, and you are settled in the country, please call us for advice and we can assist you in obtaining an Adult Dependent Relative Visa.  You can make an appointment with one of our experienced immigration Solicitors by phoning our London office on 0207 936 9960.

OTS Solicitors has a strong reputation for being one of the best immigration law firms in London and has years of experience managing both immigration appeals and judicial review cases.  We look forward to hearing more about how we can assist you and your family with any immigration concerns you may have.

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