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9th March 2014

Challenging Decisions Refusing ‘Adult Dependant Relatives’ Entry Clearance to the UK

Barnes Harrild & Dyer, are specialist immigration solicitors based in Croydon. We write this Article ... Read more ›

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9

Mar 2014

Challenging Decisions Refusing ‘Adult Dependant Relatives’ Entry Clearance to the UK

Barnes Harrild & Dyer, are specialist immigration solicitors based in Croydon. We write this Article to alert attention to the fact that ‘adult dependant relative’ applications may have been refused unlawfully, and that we can advise you of the possibility of successfully appealing the decision, or in making a fresh application if the time limit for appealing has already expired.

The Immigration Rules were amended in June 2012, introducing additional provisions to overcome for an ‘adult dependant relative’ to be granted entry clearance to the UK.  We are aware from the representations we have made in these applications, that the entry clearance officers are routinely refusing to grant entry clearance if a paid for carer is available who can be paid from the income of UK settled family relatives, notwithstanding the existence of good reasons why a relative needs to provide the provision of care in the UK.

There is now guidance available from the Immigration & Asylum Chamber ‘Upper Tribunal’ in Osman v ECO [OA/18244/2012], establishing in that case that such an approach taken by an Entry Clearance Officer is unlawful.

‘Osman’ is a determination promulgated in November 2013 of Senior Immigration Judge Craig ‘SIJ’, not a reported decision by the Tribunal but reported on BAILII, as to the interpretation of the Immigration Rules HC395 as amended, under Appendix FM, section EC-DR (“Entry clearance as an adult dependent relative”).

The case considered the relevant provisions of Appendix FM are E-ECDR 2.4 and 2.5 that are undefined in the rules, that;

  • “2.4 The applicant… must as a result of age, illness or disability require long-termpersonal care to perform everyday tasks. 
  • “2.5 The applicant… 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 either 1) it is not available and there is no person in that country who could reasonably provide it, or 2) it is not affordable.

SIJ Grubb held that the decision of the FTT was infected by an error of law and then established the following principles;

  1. ‘the appellant  must establish that he or she requires “long-term personal care to perform everyday tasks’. [para 28], and
  2. that need must arise as a result of “age, illness or disability”, and consequently; even if the need for the personal care is established, if it does not arise from one or more of the three stated conditions of the individual, then the requirements of the Rule are not met’. [29]
  3. ‘The reference to “personal care” is to be distinguished from “medical” or “nursing” care and would appear to mean that the care that has to be provided is “personal” rather than, for example, support provided by mechanical aids or medication. The need is for “personal” care, in other words, care provided by another person. The “personal care” must be required “long-term” rather than on a temporary or transitional  basis. And, further, the provision of care must be necessary in order that an individual may perform “everyday tasks”’. [30] 
  4. The relevant IDI (dated 13 December 2012) at para 2.2.1 gives by way of example of “everyday tasks” that an individual is incapable of “washing, dressing and cooking”. Those are obviously aspects of an individual’s life properly described as “everyday tasks” but that phrase has a wider meaning which would include, example, the management of an individual’s bodily functions, difficulties with mobility and communication. Other activities of daily living will also be included within the phrase “everyday tasks”. [31] 
  5. Thirdly, E-ECDR 2.5 requires an individual to establish that the “required level of care in the country where they are living” cannot be obtained even with the practical and financial help of the sponsor because either it is not available or there is no person in that country who could reasonably provide it or it is not affordable. Consequently, if the sponsor can provide a relative with the finances which will deliver the “required level of care” in the relative’s own country then the requirements of the Rule will not be met unless the “long-term personal care” is not available and no one in the individual’s country can reasonably provide it. [32] 
  6. This latter requirement undoubtedly imposes a significant burden of proof upon an individual to show that the required level of care is not available and no one can reasonably provide it in the individual’s country. An example where that latter requirement might well be satisfied would be where the “required level of care” needed requires a particular type of carer, for example a close family member, none of whom live in the individual’s country. The evidence would have to establish, in such a case, the need for a particular type of carer such as a family member and not simply that the individual required personal care from someone. In many circumstances, the “required level of care” to perform such everyday tasks as cooking, washing, and to assist mobility are likely to be capable of being performed not just by family members who do not live in that individual’s country. But, it is equally possible to contemplate, having regard to cultural factors, that needed “personal care” involving intimate or bodily contact may require a gender-specific carer from the individual’s family. What is the “required level of care” and who may appropriately provide it will depend upon the circumstances and the evidence in any given case’. [33] 

SIJ Grubb commented that the crucial consideration was whether or not the finding of the First Tier Judges was sustainable given that the appellant’s needs were met through a carer from the local Somali community. The SIJ found that the conclusion was flawed due to the following reasons;

  1. First, the Judge appears to have concluded that whatever the needs of the appellant, the carer met them. However, in reaching that finding the Judge failed to take into account Dr Nelki’s report and, indeed, the evidence of the sponsor that the appellant was as a result of her mental illness “trapped” to use Dr Nelki’s word, or “a prisoner”, to use the sponsor’s term, in her room. The sponsor’s evidence (at para 10 of his statement) was that his mother did not leave the room where she lived where she was a prisoner. In part, Dr Nelki stated that schizophrenia – a condition for which the appellant takes medication – has as one of its consequences a fear of going outside and as a result effectively being imprisoned or “trapped” in her room. The sponsor’s evidence was also that the appellant’s lack of mobility was very severely impaired by chronic arthritis to her knees and back. In para 20 of his report Dr Nelki concluded that the appellant’s physical and emotional state would almost certainly be helped enormously if she was able to get “out and about” lovingly cared for by someone whom she knows’. [39] and continued; 
  2. ‘In my judgment, “everyday tasks” includes mobility and, as a matter of common sense, to include the ability to leave one’s home and interact with the world outside engaging in everyday living activities. In my judgment, the Judge failed to take this into account when he found that the appellant’s needs were, in effect, provided for by the carer of the appellant’s mother from the local Somali community. As a result, that finding cannot stand’. [40]

In re-making the decision SIJ Grubb accepted the submissions of the appellant’s counsel identifying the link between the appellant’s mental and physical health and  needs in order to perform “everyday tasks” were not confined  just in her home but outside also, and that the medical evidence established  that this could only be provided  by her family who were in the UK [48], giving the following reasons;

  1. suffering from schizophrenia and, in all likelihood, bipolar disorder. I accept that her conditions require that she, despite the medication, needs “long-term personal care” in order for her to perform everyday tasks such as cooking, washing and results in severe mobility difficulties because of her physical condition which results in considerable pain’. [51], and; 
  2.  ‘the appellant’s physical and mental condition (in particular her mental illness) has resulted in her being “trapped” or “imprisoned” in her home which she does not leave. That debilitating feature of the appellant’s daily life is the direct result, I accept on the basis of Dr Nelki’s report, of her mental illness and the absence of the care of a close family member. It is, as I have stated above, part of the appellant’s “everyday tasks” to be able to leave her home and engage with the world outside. To do that, in my judgment, the appellant requires “long-term personal care” which can only (if her needs are to be fully met) be provided in an environment where she is supported by a close family member such as her son. The “personal care” provided by her carer at the date of decision did not, plainly, fully meet those needs in order for the appellant to be able to perform “everyday tasks” because she remained “trapped” or “imprisoned” in her home’ [52], and that; 
  3. Even if there was another person in Saudi Arabia who could provide the same support as her current carer, that person would not be able to provide the “required level of care” to meet the appellant’s need to perform the everyday tasks as I have described above which can only be fully provided by a close family member. Any replacement would, of course, likely be a stranger to the appellant’ [53]

This is not a decision reported by the Tribunal but has found itself reported on BAILLI. Whilst this determination is not binding, it is persuasive as a specialist Tribunals interpretation of the rules. It is also relevant that this determination does not appear to have been appealed by the Entry Clearance Officer.

In our opinion the SIJ was entitled to come to the conclusions he did, reflecting a wider interpretation of the rules and need in these cases for the facts to be closely considered. There will no doubt be further developments and reported cases in this area but in the meantime, we recommend any person who has been the subject of an ‘adult dependant relative’ refusal decision to make contact with Barnes Harrild & Dyer Solicitors to seek an advice upon the prospects of success in making an appeal, or a fresh application for entry clearance if your time limit to appeal has already expired.

This article is not a full appraisal and assessment of the law, and is not intended to substitute the need for legal advice.

You can contact us to make an appointment with an advisor using the details on our contact page:

http://www.bhdsolicitors.co.uk/contact/

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