Adult Dependant Relatives: Court of Appeal confirms the Rules are “rigorous and demanding”
How old, ill, disabled or bereft of emotional support does an elderly parent have to be in order to satisfy the requirements of the Adult Dependant Relatives Rules? From recent judgments in the higher courts and in practice generally, it seems that evidence provided in support of applications under this Rule can never be good enough nor sufficient. In dismissing the appeal, the Court of Appeal in Ribeli v Entry Clearance Officer, Pretoria  EWCA Civ 611 (27 March 2018), has very recently confirmed what most already know- that the Adult Dependant Relatives Rules are “rigorous and demanding”. The Appellant found no refuge by relying upon Article 8 family life arguments in the alternative. The Court observed that the Rules were challenged by way of judicial review in the case of BritCits. The claim failed in the High Court. It was also noted that the Court of Appeal in R (BritCits) v Secretary of State for the Home Department  EWCA Civ 368;  1 WLR 3345, dismissed the appeal by the Claimant organisation and held that the changes made to the rules in 2012 had been lawfully made. It was observed at the appeal hearing in Ribeli that the application for permission to appeal in BritCits was subsequently refused by the Supreme Court. Summary Background: The Appellant in Ribeli , a South African national was born on 8 August 1953. She suffered from a variety of medical conditions, including a degenerative back disease, osteoarthritis and fibromyalgia. Her application for entry clearance was sponsored by her daughter, a British citizen (but formerly a citizen of South Africa). The application was refused by the Entry Clearance Officer because he was not satisfied that the Appellant could not obtain necessary care and support in South Africa, as required by Paragraph E-ECDR.2.5, which is part of Appendix FM to the Immigration Rules. The conclusion by the Entry Clearance Officer was that without substantiated evidence that care could be provided locally, he was not satisfied that the Appellant was unable to obtain the required level of care in South Africa. Following refusal of her application, the First Tier Tribunal( FTT) allowed her appeal. The Entry Clearance Officer applied for permission to appeal. Following the grant of permission, the Upper Tribunal set aside the FTT decision and dismissed the Appellant’s appeal. The appeal then proceeded to the Court Appeal upon the Appellant’s application. Relevant Rules in Summary – Appendix FM: E-ECDR.2.1, requires that an applicant 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.2.3, states that 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, provides that 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, states that 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. Court of Appeal’s considerations and conclusions under the Rules: The Entry Clearance Officer( ECO) was correct in observing that the difficulties experienced by the Appellant could not be as fundamental or severe as was being submitted because, if they had been, she would not be able to wash herself or eat. It was reasonable for the ECO to query the need for clear evidence on what exactly was happening on a day to day basis in the Appellant’s life. It was noted that the Appellant had recently stayed with her daughter in the UK. The Appellant visited her daughter in the UK on two occasions, in 2008 and, more recently, between 28 August and 30 November 2012. Yet nothing in the evidence of either the Appellant or her daughter had said that her condition was so bad that she was not eating properly; that she was not washing herself or anything of that sort. There was no independent evidence that the Appellant was unable, even with the practical and financial help of her daughter and sponsor in the UK, to obtain the required level of care in the country where she was living. That is what the relevant Rules require: see e.g. paragraph 35 of Appendix FM – SE. The only evidence that was placed before the FTT on behalf of the Appellant (the GP’s letter of 18 December 2013) referred only to the Table View area, where the Appellant lives, not to the larger Cape Town area, still less the whole of South Africa. On the subject of waiting lists for care homes in South Africa, there was insufficient evidence to justify the conclusion that there was no care available to the Appellant in the whole of South Africa. There was no independent evidence to support the FTT’s assertion that, without the supervision of a close relative, the delivery of care services in South Africa would be wholly unreliable. There was no independent evidence that the care that the Appellant required was not available in South Africa, even with the practical and financial help of her daughter in the UK. The burden of proof lay on the Appellant to show that she qualified for entry clearance in accordance with the terms of the Rules. Those Rules are “rigorous and demanding”. That was the policy decision of the Secretary of State and was endorsed by Parliament in approving the change to the Rules in 2012. A challenge to that change has been considered and was rejected by the Court in BritCits. What was crucial in the present case was the Appellant’s physical needs. The medical evidence spoke of her emotional needs not in themselves but in so far as a failure to meet them may lead to a deterioration in her physical health, in particular the fybromyalgia. Taken by itself, the Appellant’s mental health (“anxiety and mild depression”) could not possibly be regarded as being so serious that she could not be cared for in South Africa. As to her physical care needs, the evidence simply did not discharge the burden of proof: it was insufficient to prove that the Appellant’s care needs could not be met in South Africa. There was insufficient evidence as to what particular steps had been taken to obtain a place at a care home elsewhere in that country even if one was not available in her home area. Court of Appeal’s considerations and conclusions under Article 8 of the ECHR outside the Rules: The test under Article 8 is an objective one, whatever the subjective feelings of a person may be. It was noted that for understandable reasons, the Sponsor wanted to continue to have the professional and social life she had built up in the UK and did not wish to return to South Africa. The Court however stated that did not come close to establishing that the ECO’s refusal to grant the Appellant entry clearance constituted a disproportionate interference with Article 8 rights. The starting point is that it is well-established in the authorities that there is no relevant family life for the purpose of Article 8 simply because there is a family relationship between two adults (such as a parent and her child) who live in different countries. There has to be something more than normal emotional ties The crucial point was that the Appellant’s daughter could reasonably be expected to go back to South Africa to provide the emotional support her mother needed as well as to provide practical support. If the concern was that the Appellant might be cared for in her home by people who may turn out not to be trustworthy, there was no reason why her daughter could not live and work in South Africa to supervise the care arrangements made for her mother. What this case was about was the choice which the daughter had exercised and wished to be able to continue to exercise of living and working in a major international centre like London rather than in South Africa, which was her own country of origin. She was entitled to exercise that choice. But, in those circumstances, the Upper Tribunal could not be faulted for having come to the conclusion that any interference with the Appellant’s right to respect for family life conformed to the principle of proportionality. Required Evidence: Following the Court Appeal’s decision in R (BritCits) v Secretary of State for the Home Department  EWCA Civ 368;  1 WLR 3345, the Home Office published new Policy Guidance to take that judgment into account. The evidence required to be provided to meet the requirements of the Rules is set out within the Guidance, Immigration Directorate Instruction Family Migration: Appendix FM Section 6.0 , Adult Dependent Relatives, August 2017, Annex FM 6.0: adult dependent relatives . Evidence of the family relationship between the applicant and the sponsor: This should be in the form of birth or adoption certificates, or other evidence. The ECO will need to assess whether other evidence is needed. Evidence that, as a result of age, illness or disability, the applicant requires long-term personal care: Medical evidence that the applicant’s physical or mental condition means that they require long-term personal care because they cannot perform everyday tasks, e.g. washing, dressing and cooking. This must be from a doctor or other health professional. 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: Evidence that the required level of care: (a) Is not, or is no longer, available in the country where the applicant is living. This evidence should be from a central or local health authority, a local authority, or a doctor or other health professional in the country in question. If the required care has been provided through a private arrangement, the applicant must provide details of that arrangement and why it is no longer available. (b) Is not, or is no longer, affordable in the country where the applicant lives. If payment is currently being made for care, or was made previously, the ECO should ask to see records of such payments and an explanation of why this payment cannot continue. If financial support has been provided by the sponsor or other close family in the UK, the ECO should ask for an explanation of why this cannot continue or is no longer sufficient to enable the required level of care to be provided. Evidence of adequate maintenance, accommodation and care in the UK: Where the sponsor is a British citizen or settled in the UK, the applicant must provide a signed undertaking from the sponsor confirming that the applicant will have no recourse to public funds, and that the sponsor will be responsible for the applicant’s maintenance, accommodation and care, for a period of 5 years from the date the applicant enters the UK if they are granted Indefinite Leave to Enter. In addition, in all cases the applicant must provide evidence from the sponsor that the sponsor can provide the maintenance, accommodation and care required, in the form of any or all of the following: (a) Original bank statements covering the last six months; (b) Other evidence of income – such as pay slips, income from savings, shares, bonds – covering the last six months; (c) Relevant information on outgoings, e.g. Council Tax, utilities, etc, and on support for anyone else who is dependent on the sponsor; (d) A copy of a mortgage or tenancy agreement showing ownership or occupancy of a property; and (e) Planned care arrangements for the applicant in the UK (which can involve other family members in the UK) and the cost of these (which must be met by the sponsor, without undertakings of third party support). Immigration Rules Appendix FM-SE- family members specified evidence: Immigration Rules Appendix FM-SE: family members specified evidence must be read in mind with Annex FM 6.0: adult dependent relatives and provides as follows in relation to the required evidence: Adult dependent relatives 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. Where the Requirements of the Rules are not met- Exceptional circumstances and ECHR Article 8: Immigration Directorate Instruction Family Migration: Appendix FM Section 6.0, Adult Dependent Relatives, August 2017, Annex FM 6.0: adult dependent relatives , provides the relevant guidance. Where the applicant does not meet the requirements of the Adult Dependant Relatives Rules, the decisionmaker must go on to consider: Firstly, whether, in the particular circumstances of the case, the ECHR Article 8 right to respect for private and family life is engaged; and If it is, secondly, whether there are exceptional circumstances which would render refusal a breach of Article 8 because it would result in unjustifiably harsh consequences for the applicant or their family. In order to establish that family life exists between adults who are not partners, there must be something more than such normal emotional ties. Whether such family life exists will depend on all of the facts of the case. Relevant factors will include the age, health and vulnerability of the applicant, the closeness and previous history of the family, the applicant’s dependence on the financial and emotional support of the family, and the prevailing cultural tradition and conditions in the country where the applicant lives. Where such family life exists, such that Article 8 is engaged, the decision-maker must assess whether there are exceptional circumstances which would render refusal a breach of Article 8, under paragraph GEN.3.2. of Appendix FM. Exceptional circumstances Under paragraph GEN.3.2., where an application for entry clearance or leave to enter or remain under Appendix FM does not otherwise meet the requirements of that Appendix or of Part 9 of the Rules, the decision-maker must go on to consider, on the basis of the information provided by the applicant, whether there are exceptional circumstances which would render refusal a breach of Article 8. A breach will arise if such refusal would result in unjustifiably harsh consequences for the applicant, their partner, a relevant child or another family member whose Article 8 rights it is evident from that information would be affected by a decision to refuse the application. A “relevant child” is a person under the age of 18 years at the date of application who, it is evident from the information provided by the applicant, would be affected by a decision to refuse the application. Under section 55 of the Borders, Citizenship and Immigration Act 2009 and under paragraph GEN.3.3. of Appendix FM, the decision maker must take into account, as a primary consideration, the best interests of any relevant child in considering whether there are exceptional circumstances under paragraph GEN.3.2. “Exceptional circumstances” means circumstances which would render refusal of the application a breach of Article 8, because it would result in unjustifiably harsh consequences for the applicant, their partner, a relevant child or another family member whose Article 8 rights it is evident from the application would be affected. “Exceptional” does not mean “unusual” or “unique”. Whilst all cases are to some extent unique, those unique factors do not generally render them exceptional. Instead, “exceptional” means circumstances in which refusal of the application would result in unjustifiably harsh consequences for the individual or their family such that refusal would not be proportionate under Article 8. “Unjustifiably harsh consequences” are ones which involve a harsh outcome(s) for the applicant or their family which is not justified by the public interest, including in maintaining effective immigration controls, preventing burdens on the taxpayer, promoting integration and protecting the public and the rights and freedoms of others. This involves consideration of whether refusal would be proportionate, taking into account all the facts of the case and, as a primary consideration, the best interests of any relevant child. The case-law makes clear that where the applicant does not meet the requirements of the Rules, and has established their family life in “precarious” circumstances (e.g. when they have limited leave to enter or remain in the UK), something “very compelling” is required to outweigh the public interest in refusal. Likewise, where family life is formed or exists with a person outside the UK who has no right to enter the UK and does not meet the requirements of the Rules for entry clearance, Article 8 does not require that they be granted entry, in the absence of such exceptional circumstances. Conclusion: The UK Government was fully aware of how near impossible the Adult Dependant Relatives Rules were to satisfy when they came into effect on 9 July 2012, yet the relevant entry clearance fee was set at an exorbitant level. Currently, the fee required to accompany a settlement entry clearance application stands at £3250.00. Tendering of such an amount is tantamount to “buying” a visa however in practice, most applications submitted under these Rules are refused by the entry clearance officer. In their harsh and rigid approach in consideration of such applications, officials appear to never run out of reasons to put forward as a basis of refusal. Careful consideration must therefore be given to obtaining evidence of sufficient strength and reliability, with carefully prepared well considered supportive witness statements in the full knowledge however that even if the application is initially refused, some hope might lie in future success in an appeal before the Tribunal.