(ADR) category allows British citizens and persons present and settled in the UK to make a visa application for their elderly parents and grand-parents to join them in the UK. However, where as under the rules before July 2012 one could apply for immediate settlement in the UK if he or she was over the age of 65, wholly or mainly financially dependent on the sponsoring relative and could meet the standard of maintenance and accommodation requirements, the rules in place since July 2012 have not only removed any option for immediate settlement, but also introduced far more strenuous eligibility criteria, effectively rendering the elderly dependent relative immigration route all but impossible to fulfill in practice.
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. 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.
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, that 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 and that 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. Relevant Immigration Directorate Instructions provide that the parent or grandparent must be unable to perform even the simplest everyday tasks such as cooking, dressing and washing, essentially limiting EDR visa to those applicants whose health is so bad that they are incapacitated, and unable to do anything. 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 principles were established by Senior Immigration Judge (SIJ) Craig who 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 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
Another case worth mentioning is the recently reported case of Dasgupta (error of law – proportionality – correct approach)  UKUT 28 (IAC) which 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
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
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  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.
As the UK Government continues to clamp down on family visas as a way to control immigration and satisfy the voting public who sees migrants as the source of the nation’s problems, 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.