The rules in relation to Adult dependant relatives is extremely complex following the changes which 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 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;
(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.
Evidence required to support the application
There are also mandatory evidential requirements specified in Appendix FM-SE:-
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.
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.
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.
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.
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.
To succeed with an application within the rules it is practically impossible to make a successful elderly dependant relatives application: the rules require an applicant to be virtually on their death bed, with no form of assistance whatsoever from relatives or private care providers before they can apply. It is unfortunate that the Government is depriving migrant children of interaction with their parents and grand-parents, preventing significant bonds from flourishing and also inhibiting them from learning about their culture, heritage and background.
Adult Dependent Relative Rules – tried can’t meet the rules?
Following the changes to the Immigration rules on July 2012, the new rules raise the bar substantially for those seeking entry for their elderly parents under this category. As a result of the changes many adult dependant relatives were refused entry clearance as they were unable to satisfy the need to 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 made 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.
Britcits challenged the rule on the virtual prohibition on the entry of adult dependant relatives. Which unfortunately was dismissed R (on the application of Britcits) v Secretary of State for the Home Department  EWHC 956 (Admin).
The High Court ruled the rule was lawful but did open the door to individual challenges.
The potential challenges are those under Article 8.
- The failure of an application to satisfy the Adult Dependant Rule says nothing of practical use about the question of whether an application should succeed under article 8. On the contrary, the case demonstrates that there will be a “significant number” of Adult Dependant Rule in which article 8 is both engaged and interfered with by a refusal.
- In addition, because there are factors which “powerfully suggest” that the restriction on admission imposed by the Rules is unreasonable, it may be difficult for the Secretary of State to assert public policy reasons to justify such interferences in individual cases pursuant to the burden imposed upon her by article 8(2). Following the Judgment, reliance upon the Rules themselves and the proposed savings to the public purse advanced for their justification is inherently problematic for the SSHD
- Cases are likely, of course, to turn upon their own particular facts, for example: (i) the level and extent of the interference; and (ii) whether the particular case engages the factors referred to in the Judgment as disclosing the unreasonable nature of the Rule (for example the cost to the UK – either the Exchequer or to public service of any risk of departure by the sponsor potentially to another country where the Adult Dependant Rule is less restrictive.
- The Judgment opens up the possibility of the success of a significant number of Adult Dependant cases pursuant to article 8 notwithstanding refusal under the Adult Dependant Rule.
- Permission to appeal was granted by the Judge, who considered himself unable, as bound by authority, to consider directly the lawfulness of the Rule for Convention purposes. The appeal remains pending
Any weight to be attached to any reason for rejection of a human rights claim will depend both on the particular facts and the extent to which the Rules themselves reflect
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Adult Dependant Relatives Visa: The Alternatives
The current case law will assist when arguing Article 8 right to family life.
The alternative to a settlement application could be Applying for a Multi-Entry Family Visitor Visa
You could make an application for a multi-entry visa for their parents or grandparents to join them in the UK as an alternative to the Adult Dependant Relative visa route. Many people do not realise that, aside from the general 6-month visitor visa, there are also options of applying for a 2, 5 and 10-year multiple entry visitor visa available for those persons who wish to visit the UK on a regular basis.
This visa does, however, only allow your parent or grandparent to spend a maximum of 6 months out of any 12 months in the UK, but they do not need to stay in the country for the full six-month period – they can, for example, come for a period of one or two months, return to their country, come again for two months etc, as long they do not stay in the UK for more than 6 months in any of the 12 months.
where an EU national goes to another EU country to exercise his treaty rights, he shall be treated as a Union citizen on his return to his country of origin. This would therefore mean that when that individual wishes to sponsor his parent and grandparent to join him in the UK, it will be EU law that shall apply rather than domestic immigration rules.
Before making an application please ensure you seek good professional legal Advice.
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