Alternatives to the “illusional” Elderly Depedant Relatives Settlement Visa
In my line of work as a UK Immigration Adviser, I have been receiving numerous phone calls from people who wish to know whether and how they can sponsor their elderly non-EEA parents and grandparents to come and reside with them in the UK. Since the level of confusion regarding the relevant rules and requirements is evident, I thought it would be a good topic to cover in my blog today.
The Adult Dependant Relatives Visa (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, whereas 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 dependant relative immigration route all but impossible to fulfil in practice.
Only 34 adult dependent relative settlement visas were issued under Appendix FM of the Immigration Rules Between 1 November 2012 to 30 September 2013*(According to Home Office record Freedom of Information request response – 8 April 2014)
The current test requires the UK sponsor to sign a five-year undertaking to maintain and accommodate the parent or grandparent without recourse to public funds.
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. Also, even if a parent or grandparent meets the medical threshold, if the UK based sponsor has sufficient funds to sign the 5 year sponsorship undertaking to care for the applicant in the UK, this will in almost all cases mean that there is sufficient money to pay for private care in the parents’ country of residence, should no other relative be available to care for them there. Given that there is virtually no country in the world today where such care (for example paying a nurse, house keeper or care home) is wholly unavailable, an application would therefore fail in 99% of cases.
What are my alternative options, then?
What I am really trying to make clear to you is that 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.
There are, however, viable alternatives to the Adult Dependant Relative visa that can be pursued, potentially saving money, time and heartache for families.
Option One: Applying for a Multi-Entry Family Visitor Visa
I have advised many of my clients to 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.
It is imperative for you to speak to an experienced Legal Adviser before you make any form of application. In many cases I see people first attempt to make an Adult Dependant Relative visa application and only upon refusal they contact me, then becoming aware of the multi-entry visitor visa option. The unfortunate fact is, however, that often by having made an unsuccessful Adult Dependant Relative settlement visa application first, the applicant has effectively jeopardized any future visitor visa applications. This is because an important part of such applications is to satisfy the entry clearance officer that the applicant does not intend to remain in the UK beyond the validity of the visitor visa and will return to his or her country of origin upon expiry. Having made an unsuccessful application for Adult Dependant Relative visa previously, clearly outlining the intention to settle in UK permanently can undermine the applicant’s credibility (that they intend to return before the end of six months), with a refusal decision therefore all the more likely.
Option Two: Pursuing the ‘Surinder Singh’ (European Free Movement) Route
Alternatively, an experienced and knowledgeable immigration solicitor can also advise you on whether you, as a British citizen, may be able to avail yourself of the ‘Surinder Singh’ route to bringing your adult dependant relative to join you in the UK under the more forgiving EU Free Movement rules. Generally a British national cannot be treated as an EU national for the purposes of immigration laws, meaning that it is the domestic Immigration Rules that apply to you as opposed to the EU Free Movement laws.
However, the Surinder Singh principle concerns the rights of residence of non-EEA family members (including parents and grandparents) of EU citizens who return to their country of origin, upon having spent time in another Member State. In this case, the ECJ ruled that 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.
Where European law applies to you, inviting non-EEA family members to the UK is a much, much easier undertaking as the above mentioned criteria will not apply to you whatsoever. Please contact us if you wish to know more about this route.
Off course, as I realise, the above options are far from ideal as it may be not practical to expect an elderly parent who needs someone to care for them become a frequent flyer (not to mention that the cost would be enough to make some bankrupt). The EU route may also not be suitable for many who can not up and leave to go to another EU state, given that they have jobs and their immediate family (spouse and children) here in the UK.
We, at City Legal, believe all is not lost and migrant families should continue putting pressure on the government to come up with a more family friendly way to deal with immigration. It is ridiculous to expect to benefit from a specialist doctor from India but expect them to not have a family! Sorry, but highly skilled migrant workers and their families come as a package, we can’t have one without the other.