By Maryem Ahmed, of OTS Solicitors
Maryem Ahmed is a solicitor at OTS Solicitors and has extensive experience in immigration matters including; family visas, bail and detention, Human Rights and EEA residency and British citizenship applications.
OTS Solicitors has been ranked highly by the Legal 500, and we have won numerous other awards for our immigration services (including a Global Excellence Award for the Most Trusted in Immigration law). OTS recently had an extraordinary success with an Adult Dependent Relative Visa being granted for the elderly relatives of a client.
About the Adult Dependent Relative Visa
Much has been made about the difficulty of getting an Adult Dependent Relative Visa granted by UK Visas and immigration. Since 2012, even the best immigration lawyers in London have found it almost impossible to gain entry into the UK under this category.
But our team is bucking the trend and able to point to success stories, which should provide hope to those who are desperate to bring sick and/or elderly relatives to the UK so that they can take care of them.
The rules governing the Adult Dependent Visa are exceptionally strict. To be eligible, the applicant must meet the following criteria set out in Appendix FM of the Immigration Rules, namely:
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
(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
It is rule E-ECDR.2.5 which presents the greatest hurdle for applicants seeking an Adult Dependent Relative Visa to overcome. This is because part of the criteria for sponsoring an Adult Dependent Relative is that the sponsoring family member must show they can fully financially support and accommodate the family member for at least five years. Logically, therefore, it is very difficult to convince the Home Office that you can afford to look after a dependent relative in the UK but not in their home country.
The extensive evidence required to show the applicant meets the criteria is set out 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.
If any of the evidence required is missing from the application, it is almost guaranteed to be refused. This is why it is crucial to instruct an experienced immigration solicitor in London to provide you with the best advice and collate the evidence that needs to be presented to support your submission to the Home Office.
BRITCITS v The Secretary of State for the Home Department
The case of Dasgupta (error of law – proportionality – correct approach)  UKUT 28 (IAC), provided a ray of hope to those wishing to bring their adult dependent relative to the UK.
The judge in the First Tier Tribunal stated:
“I find that there are such exceptional circumstances here, particularly the fact that there are children that are affected and also the cultural aspects. I find that the decision is a disproportionate interference with the family life of the Appellant and the sponsor and her children and therefore infringes Article 8 ECHR.”
The Upper Tribunal dismissed an appeal by the Home Office, stating the appellant’s Article 8 rights were engaged and that the Home Office decision to deny an Adult Dependent Relative Visa was a disproportionate interference in the appellant’s family life.
In the recent case of BRITCITS v The Secretary of State for the Home Department  EWCA Civ 368, the Court of Appeal considered the criteria for the Adult Dependent Visa.
Britcits, an organisation established to fight for the rights of migrant families, argued that the draconian criteria for obtaining an Adult Dependent Relative Visa contravened Article 8 of the European Convention of Human Rights, as they interfered with family life. Also, it was stated they defeated the purpose for which the law was originally made - to allow dependent adults who needed care to come to the UK. Although theoretically it is possible to sponsor an elderly or sick relative, in practice, the obstacles are almost insurmountable.
Unfortunately, the Court of Appeal ultimately rejected all of Britcits arguments.
Lord Justice Sales stated in relation to Article 8:
“If the care required by an elderly relative cannot reasonably be provided overseas the relative may well be able to succeed in gaining leave to enter under the ADR rules; conversely, if the required care can reasonably be provided overseas, it is likely that it will not be disproportionate to apply the ADR rules with full force and effect in such a case.”
We are proud to have recently achieved the successful application of an Adult Dependent Relative Visa for a client. The case involved two elderly relatives with impaired mental health, who had been looked after by friends in their home country. However, the friends were becoming too frail themselves to care for the pair.
We successfully provided expert medical evidence to show that even if care was available in the relative’s home country, both suffered from trust issues and would have likely have suffered severe trauma if they were forced to accept care from strangers.
Thanks to our detailed application and inclusion of all the relevant medical evidence, we were able to obtain Adult Dependent Relative Visas for both relatives to come to the UK and be cared for by their family.
OTS Solicitors is one of the most respected immigration law firms in London and is a Legal 500 leading firm. By making an appointment with one of our immigration solicitors, you can be assured of receiving some of the best legal advice available in the UK today. Contact us on 0203 959 9123 to speak to one of our immigration consultants.
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Posted on: Friday, 08 December, 2017