Prior to 9 July 2012, seeking to bring adult relatives to the UK had its own challenges for Sponsors, however the then applicable rules were not as onerous and harsh as the adult dependant rules now in effect via Appendix FM of the Immigration Rules.
Upon a glance of the current rules, a legally unassisted Sponsor cannot be blamed for believing that the requirements are straight forward- after all if a parent is well advanced in age, ill and needs care, what more could the UK Government possibly want in support other than proof of the familial relationship and a medical evidence including an ability to house and feed the parent in the UK? The rules were changed by the Government for a reason however when considering how restrictedly they are applied in practice by entry clearance officers, one cannot help but be of the view that perhaps the main objective was to reduce considerably and quickly the number of adult dependant relatives seeking to enter the United Kingdom.
The question is whether there is now general acceptance that these rules are here to stay as unchallengeable/unamendable, with an accompanying forgone conclusion that applications/appeals under these new rules are almost bound to fail or will resort be had to other legitimate avenues permitting entry of adult dependent relatives to the UK?
SUMMARY REQUIREMENTS FOR ENTRY CLEARANCE AND THE REQUISITE EVIDENCE
To meet the eligibility requirements for entry clearance as an adult dependent relative all of the requirements in paragraphs E-ECDR.2.1. to 3.2. of Appendix FM must be met.
The applicant is also expected to meet the requirements at section S-EC, Suitability requirements for entry clearance.
Appendix FM-SE provides for the relevant required specified evidence.
Immigration Directorate Instructions, Appendix FM Section FM 6.0 , Adult dependent relatives are also relevant for consideration.
The maintenance and accommodation requirements are also assessed using the entry clearance officer’s guidance. For even further detailed guidance on adequate maintenance and accommodation regards should also be paid to the Immigration Directorate Instructions, Chapter 8, Section FM 1.7A – Adequate Maintenance and Accommodation.
- The Applicant:
Those eligible to apply for entry clearance as adult dependent relatives are narrowly defined as:
(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.
Where 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.
- The Sponsor:
The sponsor must at the date of application be-
(a) aged 18 years or over; and
(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.
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.
- Need for Personal Care Arising from Three Conditions:
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.
The applicant must be incapable of performing everyday tasks for themselves, e.g. washing, dressing and cooking
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.
- Unavailability or Unaffordability of the Level of Care in the Applicant’s Country:
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 relevant Immigration Directorate Instructions state that the entry clearance officer should consider whether there is anyone in the country where the applicant is living who can reasonably provide the required level of care.
This can be a close family member such as a :
or another person who can provide care, e.g. a home-help, housekeeper, nurse, carer, or care or nursing home.
If an applicant has more than one close relative in the country where they are living, those relatives may be expected to pool resources to provide the required care.
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.
- Adequate Maintenance and Accommodation And Care of the Applicant in The UK:
The applicant must provide evidence that they can be adequately maintained, accommodated and cared for in the UK by the sponsor without recourse to public funds.
If the applicant’s sponsor is a British Citizen or settled in the UK, the applicant must provide an undertaking signed by the sponsor confirming that the applicant will have no recourse to public funds, and that the sponsor will be responsible for their 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.
The accommodation must be owned, or occupied exclusively, by the sponsor. The addition of the applicant to the accommodation must not contravene the UK statutory regulations on overcrowding or on public health.
Maintenance may be provided by the sponsor, or by any combination of the funds available to the sponsor and the applicant.
The Immigration Directorate Instructions also state that 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).
- Outcome of Application:
If the applicant meets the requirements for entry clearance as an adult dependent relative of a British Citizen or person settled in the UK they will be granted indefinite leave to enter.
If the applicant meets the requirements for entry clearance as an adult dependent relative and the sponsor has limited leave the applicant will be granted limited leave of a duration which will expire at the same time as the sponsor’s limited leave, and subject to a condition of no recourse to public funds. If the sponsor applies for further limited leave, the applicant may apply for further limited leave of the same duration, if the relevant requirements continue to be met, and subject to no recourse to public funds.
If the applicant does not meet the requirements for entry clearance as an adult dependent relative the application will be refused.
THE PROBLEM WITH THE NEW RULES
As stated above, the new rues are clearly onerous.
It is not possible to apply to switch into this category. Applications must be made whilst outside the United Kingdom.
Where the need for personal care does not arise out of the 3 stated conditions, then an application which places reliance upon other external issues will not succeed.
Promises of third party support will not be accepted as these are considered vulnerable to a change in another person’s circumstances or in the sponsor’s or the applicant’s relationship with them.
Where an application/appeal for settlement as an adult dependant relative is unsuccessful, then this in effect may act as a bar to the future success of a visitor visa application.
Where despite reasonable efforts, the medical evidence provided at appeal is discounted as “defective/inadequate/mere opinion/unhelpful”, then the further application fee costs of a second fresh entry clearance application following rectification of that medical evidence( also at a cost) may prove prohibitive.
If there is to be a second fresh application for entry clearance following an unsuccessful appeal, unless there is has been a significant change since any last appeal decision, combined with fresh, supportive, relevant and appropriate medical or other evidence, the findings of the previous Tribunal will impact upon any next appeal.
Even where it can be established that there are no other relatives for the applicant to turn to in the country of origin, a mere hint from the facts of the case of the existence of a family friend, or a well meaning neighbour in that country can be relied upon to refuse or dismiss an appeal on the basis that the applicant can look towards them for care as opposed to looking towards settlement in the UK with the Sponsor.
Aunts, cousins, uncles, nephews and nieces are excluded from applying relying upon the new rules.
SUBMITTING AN APPLICATION UNDER THE RULES THAT MAY BE ABLE TO WITHSTAND A REFUSAL DECISION OR AN APPEAL
Hope may be placed upon the application/appeal succeeding outside the Immigration Rules, however that may be too much to hope for and as such it is essential that Sponsors take some reasonable time to prepare towards an application having regard in particular to the submission of medical evidence that is indeed “expert”, independent , impartial and reliable as this may increase the chances of success in case of an appeal.
An issue at appeal may be what material was before the expert at the time of preparation of a report. It is therefore important that a medical expert is shown to have been provided with all relevant documents applicable to the case such any other medical reports in existence and to have been appraised of all relevant circumstances so that the medical report is not seen as just mere opinion as opposed to expert medical evidence.
Although the entry clearance officer is required to exercise some discretion in relation to issues of evidential flexibility as regards the documents when considering the application, later attempts to seek to submit “better” and more relevant evidence at appeal is highly likely to result in the presenting officer at appeal seeking to resist admission of that evidence vigorously.
It is also worth considering undertaking the necessary prior concerted efforts to undertake investigations provable by way of documentary evidence in relation to approaching relevant central/local health authorities in order to seek to obtain evidence or information about the availability and suitability of the required level of care in the applicant’s country. Undertaking background research as regards the availability of care for the elderly in that country may also assist including investigations as to whether home help or residential/nursing care is available and even where it is, whether there is some reasonable degree of protection in that country against the risk of elderly abuse.
Witness statements in support of the application or appeal need to be as comprehensive as possible. It is either in that witness statement or a separate document that the planned care arrangements may be set out. For example clarifications would need to be made as regard how the care would be provided to the applicant after arrival where the Sponsor spends time in employment. The Sponsor’s spouse/partner may be expected to assist with day to day care of the relative in his/her absence. As regard provision of health care for the applicant whilst in the UK, obtaining a quotation as regards the private health insurance payable for submission with the application may assist.
BY – PASSING THE ADULT DEPENDANT RULES AND PURSUING OTHER AVENUES
The long term plan for Sponsors with parents and grandparents is to enable settlement in the UK and such although a visit visa application may seem an immediate solution to continuing family life, the better route for consideration may be the Surinder Singh Route having regard to EC law. Only British citizen sponsors however can take advantage of that avenue.
More detailed clarifications in relation to the Surinder Singh route can be found here;
Surinder Singh and parents/grandparents as direct family members:
The relevant question is whether parents or grandparents can be viewed as family members.
The EEA Regulations 2006 provide:
“Family member 7.
(1) Subject to paragraph (2), for the purposes of these Regulations the following persons shall be treated as the family members of another person—
(a)his spouse or his civil partner;
(b)direct descendants of his, his spouse or his civil partner who are—
(i)under 21; or
(ii)dependants of his, his spouse or his civil partner;
(c)dependent direct relatives in his ascending line or that of his spouse or his civil partner;
(d)a person who is to be treated as the family member of that other person under paragraph (3
(2) A person shall not be treated under paragraph (1)(b) or (c) as the family member of a student residing in the United Kingdom after the period of three months beginning on the date on which the student is admitted to the United Kingdom unless—
(a)in the case of paragraph (b), the person is the dependent child of the student or of his spouse or civil partner; or
(b)the student also falls within one of the other categories of qualified persons mentioned in regulation 6(1).
(3) Subject to paragraph (4), a person who is an extended family member and has been issued with an EEA family permit, a registration certificate or a residence card shall be treated as the family member of the relevant EEA national for as long as he continues to satisfy the conditions in regulation 8(2), (3), (4) or (5) in relation to that EEA national and the permit, certificate or card has not ceased to be valid or been revoked.
(4) Where the relevant EEA national is a student, the extended family member shall only be treated as the family member of that national under paragraph (3) if either the EEA family permit was issued under regulation 12(2), the registration certificate was issued under regulation 16(5) or the residence card was issued under regulation 17(4).”
The EEA Regulations also provide in Regulation 9:
“Family members of British citizens .
(1) If the conditions in paragraph (2) are satisfied, these Regulations apply to a person who is the family member of a British citizen as if the British citizen (“P”) were an EEA national.
(2) The conditions are that—
(a) P is residing in an EEA State as a worker or self-employed person or was so residing before returning to the United Kingdom;
(b) if the family member of P is P’s spouse or civil partner, the parties are living together in the EEA State or had entered into the marriage or civil partnership and were living together in the EEA State before the British citizen returned to the United Kingdom; and
(c) the centre of P’s life has transferred to the EEA State where P resided as a worker or self-employed person.
(3) Factors relevant to whether the centre of P’s life has transferred to another EEA State include— (a) the period of residence in the EEA State as a worker or self-employed person; (b) the location of P’s principal residence; (c) the degree of integration of P in the EEA State.
(4) Where these Regulations apply to the family member of P, P is to be treated as holding a valid passport issued by an EEA State for the purpose of the application of regulation 13 to that family member”.
Having regard to the above, a financially dependent parent/grandparent of a British citizen may rely upon Surinder Singh and apply for a family permit so long as the British citizen was engaged in genuine and effective economic activity in another EEA state before returning to the UK. Having regard to Regulation 9 , it appears that it is only the spouse/civil partner who is required to have lived together with the British Sponsor in the EEA State or had entered into the marriage or civil partnership and were living together in the EEA State before the British citizen returned to the United Kingdom.
Surinder Singh and extended family members: Who is an extended family member?
Relatives such as aunts, uncles, adult siblings are extended family members. Physically and mentally fit adult siblings will not succeed under the dependent adult relative rules, however along with other relatives can they seek to rely upon the Surinder Singh route?
Regulation 8 of the EEA Regulations states:
“Extended family member” 8.
(1) In these Regulations “extended family member” means a person who is not a family member of an EEA national under regulation 7(1)(a), (b) or (c) and who satisfies the conditions in paragraph (2), (3), (4) or (5).
(2) A person satisfies the condition in this paragraph if the person is a relative of an EEA national, his spouse or his civil partner and—
(a)the person is residing in a country other than the United Kingdom and is dependent upon the EEA national or is a member of his household;
(b)the person satisfied the condition in paragraph (a) and is accompanying the EEA national to the United Kingdom or wishes to join him there; or
(c)the person satisfied the condition in paragraph (a), has joined the EEA national in the United Kingdom and continues to be dependent upon him or to be a member of his household.
(3) A person satisfies the condition in this paragraph if the person is a relative of an EEA national or his spouse or his civil partner and, on serious health grounds, strictly requires the personal care of the EEA national his spouse or his civil partner.
(4) A person satisfies the condition in this paragraph if the person is a relative of an EEA national and would meet the requirements in the immigration rules (other than those relating to entry clearance) for indefinite leave to enter or remain in the United Kingdom as a dependent relative of the EEA national were the EEA national a person present and settled in the United Kingdom
(5) A person satisfies the condition in this paragraph if the person is the partner of an EEA national (other than a civil partner) and can prove to the decision maker that he is in a durable relationship with the EEA national.
(6) In these Regulations “relevant EEA national” means, in relation to an extended family member, the EEA national who is or whose spouse or civil partner is the relative of the extended family member for the purpose of paragraph (2), (3) or (4) or the EEA national who is the partner of the extended family member for the purpose of paragraph (5)”.
The relevant Home Office Guidance is “Extended family members of European Economic Area (EEA) nationals – v2.0 Valid from 7 April 2015”.
|There is no limit on the distance of the relationship between the EEA national or their spouse or civil partner and the extended family member as long as they can provide valid proof of the relationship between them.|
A non exhaustive definition within the Guidance of “relative “ includes brother sisters , aunts, uncles, nephews, nieces and cousins. The applicant must provide evidence of their relationship to the EEA national sponsor to prove they are either related to the EEA national sponsor, or in a durable relationship with them. Documents such as birth certificates must be provided to show the connection between each relative.
|Extended family members do not have automatic rights to enter and reside in the UK. Under Regulation 7(3) of the 2006 EEA regulations, an extended family member has the same rights as a direct family member, providing they continue to satisfy the conditions of Regulation 8 and they have been issued with an EEA family permit or a residence ca|
In order to satisfy Regulation 8(2), financial evidence of dependency is required to be submitted such as bank statements, or money transfers between the EEA national and extended family member whislt the extended family members was outside the UK. The extended family member must demonstrate they were dependent on the EEA national in a country other than the UK, or a member of the EEA national’s household in a country other than the UK. On 8 November 2012 the EEA regulations were amended following a ruling in the case of Rahman from the Court of Justice of the European Union (ECJ). The ruling made it clear that the entry clearance officer can consider the extended family member to be dependent even though they may not have lived in the same country as the EEA national. For example, the EEA national has provided financial support to the extended family member while they lived in another country. The financial support they received shows dependency.
If the applicant is claiming a right of residence on the basis that they were a member of the EEA national’s household, then they must have been living with the EEA national in that household in the same country.
The applicant does not need to be dependent on the EEA national to meet all or most of their essential needs.
Regulation 8(2)(c) of the regulations states a person only continues to satisfy the requirements of Regulation 8 if they remain dependent upon the EEA national or a member of their household.
Evidence of dependency may include (but is not limited to):
Financial dependency that existed before the applicant came to the UK and financial dependency continues now the applicant lives in the UK. Evidence of this can include:
- bank statements, or
- money transfers.
Being a member of the relevant EEA national’s household before they came to the UK. Evidence of this can include:
- joint tenancy agreements, or
- a letter from the local council.
Being a member of the relevant EEA national’s household in the UK. Evidence of this can include:
- joint bank or building society statements
- joint tenancy agreement, or
- official correspondence addressed to them at the household
- Regulation 8(3):As regards Regulation 8(3), a detailed medical report from a GP, specialist or consultant, showing their medicinal condition and the type of care they require. A letter or statement from the EEA national who provides their care is required to explain in detail the level of care they give. The evidence provided must demonstrate that the level of care needed is possible.
The Asylum and Immigration Tribunal (AIT) in the case of TR (reg 8 (3) EEA Regs 2006)  UKAIT 00004 found that for a relative to satisfy regulation 8(3) they must meet the following conditions:
- the ‘serious health grounds’ need to be significantly beyond ordinary ill health:
- the applicant must provide detailed medical evidence to prove this
- ‘personal care’ must be provided on a day to day basis and relate to the physical and/or mental tasks and needs the applicant requires to function, and
- ‘strictly’ must be restrictively interpreted to emphasise the need for the personal care to be provided on a day to day basis.
As regards Regulation 8( 4), the applicant does not need to have valid entry clearance to enter the UK to satisfy this condition. Detailed reference is required to be made to Guidance Appendix FM Section FM 6.0 Adult dependent relatives, ie the guidance that has effect from 13 December 2012.
In relation to Regulation 8(5), the stated requirement is that the relationship is durable and evidence covering 2years is expected by the Home office however depending on the facts of the case less than 2years of evidence can be submitted for example where there is joint responsibility for a child to that relationship.
Evidence to be submitted can include joint bank or building society statements; joint tenancy agreements; council tax bills or utility bills in joint names.
Issue of a Residence Card to an Extended Family member:
Regulation 17(4) of the EEA Regulation provides:
“Issue of residence card
(4) The Secretary of State may issue a residence card to an extended family member not falling within regulation 7(3) who is not an EEA national on application if—
(a)the relevant EEA national in relation to the extended family member is a qualified person or an EEA national with a permanent right of residence under regulation 15; and
(b)in all the circumstances it appears to the Secretary of State appropriate to issue the residence card.
(5) Where the Secretary of State receives an application under paragraph (4) he shall undertake an extensive examination of the personal circumstances of the applicant and if he refuses the application shall give reasons justifying the refusal unless this is contrary to the interests of national security”.
Regulation 17(4) makes the issuing of a residence card to an extended family member a matter of discretion.
When making a decision, regard must be had to the effect the decision has on the EEA national exercising their free movement right. Consideration needs to be given to whether the EEA national will be prevented from exercising their free movement rights if the extended family member’s application is refused , and the facts and circumstances of the relationship and dependency for each case. In a case where the applicant meets the definition of durable partners, it is likely that to refuse a residence card would prevent the relevant EEA national’s free movement rights. This is because the parties are considered to be in a long-standing and enduring relationship akin to marriage however consideration must be given to circumstances of each case.
Extended family members do not benefit from the higher protection of public policy, public security or public health until they have been issued a document under the Regulations.
So Can Extended family fall within the scope of Surinder Singh?
The problem is that extended family members do not fall within the definition of family members having regards to Regulation 9 of EEA Regulations.
In the unreported case of Kamila Santos Campelo Cain v Secretary of State for the Home Department IA/40868/2013), the Upper Tribunal, in a decision dated 13 October 2014, noted that at the heart of that appeal lay the issue of whether an unmarried partner is entitled to the benefit of the decision in Surinder Singh. The Appellant, a Brazilian national, was in a relationship with a British citizen. The parties had 3 young children together. The British partner had exercised treaty rights in Spain between January 2010 and September 2011 and for four months in Portugal until January 2012. The parties had lived together in Spain and Portugal and had returned to the UK in January 2012. On 6 June 2013, the Appellant made an application for a residence card as the family member of an EEA national. Regulation 8(5) was relevant to the appeal. The Upper Tribunal stated at paragraph 54 of their decision that they were satisfied that Regulation 9 is inconsistent with the principle in Surinder Singh in its application to the Appellant as a durable partner, being an extended family member. As per paragraph 32 of their decision, in their judgment, the Upper Tribunal considered that the exercise of the right of free movement by an EEA national is likely to be adversely affected by the inability of a durable partner to reside with the EEA national in the host state, as it would be were his or her spouse to be denied residence status. The Upper Tribunal stated at paragraph 39 of their decision that they considered that the Surinder Singh principle does extend to a person such as the appellant who is in a durable relationship and as per paragraph 41, she was entitled to the benefit of the principle in Surinder Singh. The Upper Tribunal concluded that the appropriate course of action was for the appeal to be allowed as not being in accordance with the law on the basis that it remained for the Secretary of State to exercise her discretion in relation to where or not to issue the Appellant with a residence card as an extended family member.
There perhaps remains scope to run an argument via appropriate cases in relation to extended family members and giving consideration to having the British citizen, whilst in the EEA state, to seek to submit an application for a family permit for the dependent relative to join him and reside there by reliance upon Articles 3(2), and 10 of parent Directive.
1.This Directive shall apply to all Union citizens who move to or reside in a Member State other than that of which they are a national, and to their family members as defined in point 2 of Article 2 who accompany or join them.
2.Without prejudice to any right to free movement and residence the persons concerned may have in their own right, the host Member State shall, in accordance with its national legislation, facilitate entry and residence for the following persons:
(a) any other family members, irrespective of their nationality, not falling under the definition in point 2 of Article 2 who, in the country from which they have come, are dependants or members of the household of the Union citizen having the primary right of residence, or where serious health grounds strictly require the personal care of the family member by the Union citizen;
(b) the partner with whom the Union citizen has a durable relationship, duly attested.
The host Member State shall undertake an extensive examination of the personal circumstances and shall justify any denial of entry or residence to these people.
Issue of residence cards
- The right of residence of family members of a Union citizen who are not nationals of a Member State shall be evidenced by the issuing of a document called “Residence card of a family member of a Union citizen” no later than six months from the date on which they submit the application. A certificate of application for the residence card shall be issued immediately.
- For the residence card to be issued, Member States shall require presentation of the following documents:
(a) a valid passport;
(b) a document attesting to the existence of a family relationship or of a registered partnership;
(c) the registration certificate or, in the absence of a registration system, any other proof of
residence in the host Member State of the Union citizen whom they are accompanying or
(d) in cases falling under points (c) and (d) of Article 2(2), documentary evidence that the
conditions laid down therein are met;
(e) in cases falling under Article 3(2)(a), a document issued by the relevant authority in the
country of origin or country from which they are arriving certifying that they are dependants
or members of the household of the Union citizen, or proof of the existence of serious health
grounds which strictly require the personal care of the family member by the Union citizen;
(f) in cases falling under Article 3(2)(b), proof of the existence of a durable relationship with the Union citizen”.
Where the EEA family permit is obtained for the dependent relative, and following their arrival in that EEA state, further consideration can be given to applying for a residence card and then for the dependent relative to seek to enter the UK with the residence card relying upon the case of McCarthy Case C‑202/13. The ECJ held in that case , pursuant to Article 5 of Directive 2004/38, a person who is a family member of a Union citizen and who holds a valid residence card issued under Article 10 of Directive 2004/38 by the authorities of another Member is not subject to the requirement to obtain a visa or an equivalent requirement in order to be able to enter the territory of that Union citizen’s Member State of origin.
Sponsors of adult dependant relatives are therefore not left without alternatives and as such either submission of a well prepared application/appeal under the current rules or reliance upon EC law, may well enable success despite the Government’s efforts to frustrate genuine efforts to bring loved ones to the UK.