Adult dependant children or siblings sometimes face considerable problems when seeking to join or remain with a sponsoring parent or sibling residing in the UK. Reliance can be placed upon several provisions, however it is undeniable that some routes are much more difficult to satisfy than others.
It is possible upon consideration of the following options, for an applicant or sponsor to place reliance upon them in an application:
- To a limited extent, reliance upon the Adult Dependant Relatives Rules under Appendix FM;
- A Derivative Residence card application relying on Zambrano arguments;
- The Carer’s Policy;
- Reliance upon the 2006 EEA Regulations as an extended family member of an EEA national;
- Reliance upon the 2006 EEA Regulations as a direct family member of an EEA national;
- Paragraph 276ADE (v) of the Immigration Rules;
- Article 8 of the ECHR
(1) ADULT DEPENDANT RELATIVES AND APPENDIX FM
The relevant provisions are contained in Appendix FM of the Immigration Rules. Section E-ECDR.1.1 provides that in order 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. must be met.
The relevant Immigration Directorate Instructions are :
- Family Members Under Appendix FM of The Immigration Rules, Appendix FM Section FM 6.0 Adult dependent relatives, effective from 13 December 2012;
- Immigration Directorate Instruction Family Migration: Part 8:Annex F Adequate Maintenance Accommodation , August 2015;
- Entry Clearance Guidance, Maintenance and accommodation (MAA), published 6 December 2013;
- Public funds, Published for Home Office staff on: 22 April 2016
An applicant must be:
- the parent aged 18 years or over;
- brother or sister aged 18 years or over; or
- son or daughter aged 18 years or over of the sponsor who is in the UK.
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 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-
- it is not available and there is no person in that country who can reasonably provide it; or
- it is not affordable.
Medical evidence that the applicant’s physical or mental condition means that they cannot perform everyday tasks must be from a doctor or health professional.
Evidence that the required level of care is not, or is no longer, available in the country where the applicant is living should be from a central or local health authority, a local authority, or a doctor or other health professional. 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.
In relation to evidence that the required level of care is not, or is no longer, affordable in the country where the applicant lives, if payment was made for arranging this care, the entry clearance officer should ask to see records 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 entry clearance officer can ask for an explanation of why this cannot continue or is no longer sufficient to enable the required level of care to be provided.
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 entry clearance officer is also required to 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 son, daughter, brother, sister, parent, grandchild or grandparent.
The entry clearance officer can go further to consider another person who can provide care, e.g. a home-help, housekeeper, nurse, carer, or care or nursing home.
Further, if an applicant has more than one close relative in the country where they are living, those relatives may be considered able to pool resources to provide the required care.
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.
Where an application is unsuccessful under the immigration rules, Article 8 augments in an appeal might result in a positive outcome as per Dasgupta (error of law – proportionality – correct approach)  UKUT 28 (IAC):
(2) DERIVATIVE RESIDENCE CARD APPLICATIONS AND ZAMBRANO ARGUMENTS
An application for a Derivative Residence card by reliance upon Zambrano arguments is another option.
The relevant Policy Guidance is:
- Derivative rights of residence – Ruiz Zambrano cases, 12th December 2012;
- Derivative rights of residence- version 2.0 Valid from 7 April 2015
The Zambrano judgment established that member states cannot refuse a person the right to reside and work in the host member state, where:
- that person is the primary carer of a Union citizen who is residing in their
- member state of nationality; and
- refusal of a right of residence to that primary carer would deprive the Unionto leave the EEA.
- citizen of the substance of their European citizenship rights by forcing them
A primary carer of a British citizen will qualify for a derivative right of residence under regulation 15A(4A) of Immigration (European Economic Area) Regulations 2006 where they satisfy the relevant conditions. The conditions are that the applicant is the primary carer of a British citizen who is residing in the UK, and would be unable to reside in the UK or in another EEA state if their primary carer were required to leave the UK.
A primary carer is defined in regulation 15A(7) as:
- a direct family member or legal guardian of the person from whom they would claim a derivative right, and the person who: has primary responsibility for that person’s care, or
- shares the responsibility for that persons care equally with one other person who is not an exempt person.
A person who meets the criteria for a derivative right of residence qualifies for:
- a right of admission to the UK under amended regulation 11;
- a right to an EEA family permit under amended regulation 12; and
- a right to a derivative residence card under regulation 18A.
In order to apply for a Derivative Residence Card in cases where the British citizen is at, or over the age of 18, Home Office policy states that the level of evidence required to demonstrate primary and shared responsibility will be significantly higher than in cases involving children. This is because the home office consider that it can generally be assumed an adult has the capacity to care for their own daily needs unless there are reasons such as a severe physical or mental disability which would prevent this. Only evidence that shows the British citizen’s reliance on the primary carer is for such reasons will that person likely fall within the scope of the Zambrano judgment.
An adult child can thus be a primary carer of an adult British citizen who is residing in the UK.
It is important to note however that in the case of an adult British citizen, there is a need to show that there are no alternative care provisions available in the UK. For adults, alternative care may include, but is not limited to: local authority care provisions, private care provisions or other direct relatives.
Further, the onus is on the applicant to demonstrate that their removal would force the British citizen to leave the EEA.
Appropriate medical evidence must also be presented that confirms that the adult British citizen is and will remain, wholly dependent upon the applicant. In cases where a person is stating that they are the primary carer of an adult who has a physical or mental impairment, the applicant must provide medical evidence from a registered consultant and/or specialist who is involved in the British citizen’s care. This must outline the medical condition, and the level of care required.
The applicant must provide full details of the medical condition from a consultant who is charge of the care of the British citizen. This must address:
- The name of the condition;
- How severe the condition is;
- What the prognosis is;
- How often the condition reviewed is;
- What level of care is required and how long it is expected this will continue
The relevant application form is DRF1 Derivative Residence Card. The relevant application fee is £65 for each person applying for a derivative residence card.
A person who submits a valid application for a derivative residence card should be issued with a certificate of application which will facilitate their taking employment while their application is under consideration.
Where the application is successful, there would be a right to a derivative residence card. Derivative residence cards will ordinarily be issued for a period of five years. In certain circumstances the home office may issue for an alternative period depending on the individual facts of the case.
A person who has a derivative right of residence is not subject to any restriction on taking employment in the UK.
Those who acquire a derivative right of residence cannot acquire permanent residence in the UK. There is no right to permanent residence for persons claiming to have a derivative right of residence.
A person who is refused a document on the basis that they do not have a derivative right to reside should have an appeal right where they have produced valid evidence of their nationality and proof that they are a direct relative of a British citizen.
A derivative residence card can be revoked:
- if the holder stops having a derivative right of residence
- if their removal from in the UK is considered conducive to the public good, or
- on the grounds of abuse of rights.
It is very unlikely that the home office will consider human rights Article 8 representations within a Derivative residence card application as they will usually expect a separate charged and valid application in this regards. Therefore submitting a derivative residence card application on its own appears in practice to have restrictions in relation to Article 8 private and family life arguments more so where an appeal comes into play.
(3) THE CARER’ POLICY
The Carer’s Policy is worthy of consideration by reliance upon Chapter 17, Section 2- Carers.
The Carer’s policy is usually considered alongside Chapter 1 Section 14, Leave Outside the Rules( LOTR). There may be particular compelling circumstances where someone may request limited leave to remain outside the immigration rules such as to care for a sick relative. Any such case should be considered by the home office on its individual merits and in line with any relevant policy at the time. Home Office policy is that such grants of leave outside the Immigration Rules should be rare, and only for genuinely compassionate and circumstantial reasons, or where it is deemed absolutely necessary to allow someone to enter/remain in the UK, when there is no other available option.
Whilst each case must be looked at on its individual merits, when considering whether a period of leave to remain should be granted, the following points are amongst those that are borne in mind by the Home Office:
- the type of illness/condition (this should be supported by a Consultant’s letter); and
- the type of care required; and
- care which is available (e.g. from the Social Services or other relatives/friends); and
- the long-term prognosis.
Where leave is granted to care for a sick or disabled relative, this is only for an initial grant of leave for 3 months (with no recourse to employment or public funds) outside the Rules. An applicant will be informed by the home office that leave has been granted on the strict understanding that during this period arrangements will be made for the future care of the patient by a person who is not subject to the Immigration Rules.
Where an application is received requesting a further period of leave to continue to care for a sick relative or friend the home office undertake further detailed enquiries to establish the full facts of the case, and an applicant must produce the following:
- a letter from a registered medical practitioner who holds an NHS consultant post with full details of the condition/illness and long term prognosis; and
- a letter from the local Social Services Department, where they are known to be involved, advising of their level of involvement, the perceived benefits of the presence here of the applicant, and an explanation as to why suitable alternative care arrangements are not available.
- Any further evidence that alternative arrangements for the care of the patient have been, or are being, actively explored. For example, whether contact has been made with voluntary services/charities to see if they can assist or whether the possibility of private care has been costed and assessed. (a previous grant of a 3 month extension should have been accompanied by a letter explaining that the extension was granted to enable such arrangements to be made); and
- full details of the patient’s family in the United Kingdom, the degree of relationship, and, if applicable, details of how the patient was previously cared for and why these arrangements are no longer considered suitable and/or are no longer available; and
- details of the applicant’s circumstances in his home country, such as whether he/she has a spouse and children, the type of employment and other relevant family circumstances (as a general rule a person seeking to remain in the United Kingdom on a long term basis as a carer should normally be unmarried and have no dependants); and
- evidence that there are sufficient funds available to maintain and accommodate himself/herself without working or recourse to public funds.
The Carer’s policy is clear that the fact the home office may have previously granted an applicant leave to remain as a carer does not give rise to a legitimate expectation that they should grant again. In cases where there are sufficient exceptional compassionate circumstances to continue the exercise of discretion, leave to remain may be granted for up to 12 months at a time, 3 (no recourse to employment or public funds). In wholly exceptional circumstances (access to employment and public funds allowed) may be appropriate.
In all cases, the home office are required to make it clear to the carer that the home office are acting exceptionally outside the Immigration Rules.
A carer will not normally qualify for settlement based on the time they have spent in the United Kingdom looking after a sick relative or friend unless they qualify under the Immigration Rules relating to long residence or qualify under some other category of the Rule
If the home office are intending to refuse an application from an applicant who wishes to provide care for a relative in the UK, the Secretary of State must be able to show that she is satisfied that there would be alternative arrangements for care should the applicant not be available. The fact that an applicant may be able to provide the best care for the patient does not mean that the patient cannot be adequately cared for by the local authority. Local authorities are under a duty to put themselves in a position to arrange suitable care for all categories of people in respect of whom they have community care functions.
If social services are involved home office caseworkers are required to send them a letter asking whether the carer has made alternative arrangements and if not what kind of alternative arrangements could be made. If social services are not involved and an applicant maintains there is no alternative care available other than that provided by themselves, home office caseworkers are expected to write to the applicant to ask why they have not explored this option. It may be the case that there are other arrangements that could be made which do not involve the social services such as other family members.
Where an applicant intends to submit an application by reliance upon the Carer’s Policy, the relevant application form is FLR(O). The Home office application fee per person is £811.00. The NHS Health Surcharge per applicant is £500.00.
(4) SURINDER SINGH ARGUMENTS
Can adult dependant children or siblings of British citizens rely upon Surinder Singh arguments having regard to the construction of Regulation 9 of the EEA Regulations?
The Immigration (European Economic Area) (Amendment) (No.2) Regulations 2013 were amended on 01 January 2014 to include a new threshold test to tighten the circumstances in which family members of British Citizens can rely on the Court of Justice of the European Union (ECJ) judgment in Surinder Singh C-370/90).
The Surinder Singh judgment was implemented into the 2006 Regulations by way of regulation 9. Regulation 9 of the 2006 EEA regulations, is concerned with the conferral of rights of ” family members” of British citizens.
Current Home Office policy states that the new requirement at regulation 9(2)(c) and 9(3) requires the British citizen to have transferred the centre of their life to another EEA member state, where they resided as a worker or self-employed person with their spouse or civil partner before returning to the UK.
Under regulation 9, a non-EEA national who is the spouse or civil partner or other direct family member of a British citizen may have rights under European law if certain conditions are met. This is in line with the Court of Justice of the European Union (ECJ) judgment in the case of Surinder Singh (C370-90).
For the family member of a British citizen to have a right of admission and residence under the regulations, the following conditions must be met:
- the British citizen exercised free movement rights in another EEA member state;
- the family member is the spouse or civil partner of the British citizen and they:
- are living together in the EEA state
- entered into the marriage or civil partnership and were living together in the EEA state;
- the British citizen had transferred the centre of their life to the EEA state where they were residing as a worker or self-employed person
Where the conditions above are met, the family member of the British citizen will be treated as the family member of an EEA national for the purposes of the regulations.
Regulation 9(3) specifies the factors to be considered when deciding whether a British citizen has transferred the centre of their life to another member state. These include, but are not limited to:
- the period of residence in another EEA member state as a worker or self-employed person;
- the location of the British citizen’s principal residence; and
- the degree of integration of the British citizen in the host member state.
When considering the degree of integration in another EEA member state, Home Office policy guidance provides that relevant factors may include:
- Does the British citizen have any children born in the host member state? If so, are the children attending schools in the host member state?
- Does the British citizen have any other family members resident in the host member state?
- Has the British citizen immersed themselves into the life and culture of the host member state? For example, have they bought property there? Do they speak the language? Are they involved with the local community?
- The more of these factors that are present on a case, the more likely the British citizen is to be considered as having transferred the centre of their life.
The relevant Home office Guidance is :
- Regulation 9 (Surinder Singh Cases) Date: 01 January 2014;
- Direct Family Members of European Economic Area (EEA) nationals – v3.0, Published for Home Office staff on 29 September 2015
Regulation 9 as read however does not include adult dependant children:
“Family members of British citizens 9.
(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”.
In Osoro ( Surinder Singh)  UKUT 593 (IAC) the question of law raised by the appeal concerned the ambit of the decision of the ECJ in the case of R v Immigration Appeal Tribunal and Surinder Singh, ex parte Secretary of State for the Home Department (Case C-370/90);  ECR I-04265.
A 29year old Kenya national submitted an application dated 15 March 2014 for a residence card and competed Section 5 of the application form, entitled “Surinder Singh Cases”. In completing this section, the Appellant submitted that the British citizen family member (his uncle) had exercised Treaty rights as a worker in another EEA member state, Belgium; that the appellant was the family member of the British citizen (his uncle) during such period.; that the appellant did not reside with his uncle during such period; that his uncle worked in Belgium between 01 July and 15 November 2013, returning to the United Kingdom on 19 December 2013.
The Appellant’s case was considered by the Tribunal to be confined to the single proposition that he qualified for the grant of residence in the United Kingdom pursuant to the decision in Surinder Singh. The Upper Tribunal stated that the EU citizen concerned, his uncle, made the two movements in question viz from the United Kingdom to another EU Member State and, some months later, the reverse, without the Appellant. The EU citizen in the matrix exercised and enjoyed his Treaty rights fully and without interference of any kind. Nor was there any element of discriminatory treatment. In short, the principles of efficacious enjoyment of Treaty rights and non-discrimination, the twin cornerstones of the decision in Surinder Singh, were fully satisfied.
A word of warning left by the Upper Tribunal in Osoro was:
“25.We would add, finally, that the linguistic formulation ” the principle in Surinder Singh” requires particular care and circumspection on the part of both practitioners and judges in their consideration of what was actually decided in Surinder Singh, which was a fact sensitive case decided by the CJEU by resort to the free movement provisions of primary Community law. The case was decided accordingly and its rationale, or ratio decidendi, has the twofold doctrinal components of the principle of efficacious enjoyment of Community law rights and the principle of non-discrimination. These are the two principles which demand attention in any given context. It is not clear to us that Surinder Singh is authority for some principle of wider application. In law, discipline is everything”.
Whether wrongly or rightly, currently, Regulation 9 as drafted excludes adult dependant children of British citizens from relying on Surinder Singh arguments.
(5)EXTENDED FAMILY MEMBER UNDER THE 2006 EEA REGULATIONS
An adult dependant sibling may rely upon the EEA Regulations by reliance upon Regulation 8:
“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 policy guidance is:
- Extended family members of European Economic Area (EEA) nationals – v2.0 Valid from 7 April 2015:
Extended family members do not have automatic rights to enter and reside in the UK. Under regulation 7(3) of the 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
- a registration certificate, or
- a residence card.
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. The term ‘relative’ includes, brothers, sisters, aunts, uncles, cousins, nieces and nephews.
The applicant does not need to be dependent on the EEA national to meet all or most of their essential needs.
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.
In relation to relatives requiring personal care on serious health grounds, an applicant must submit a detailed medical report showing:
- their medical condition, and
- the type of personal care they need.
The evidence provided must demonstrate the level of care needed is possible.
When making a decision, the decision maker must undertake an extensive examination of personal circumstances and also consider:
- whether the EEA national will be prevented from exercising their free movement rights if they refuse the extended family member application, and
- the facts and circumstances of the relationship and dependency for each case.
An applicant applying from outside the UK as an extended family can make their application at the relevant post overseas. EEA family permits are issued free of charge and are valid for a period of 6 months.
Once the extended family member is in the UK with an EEA family permit, they must apply before that permit expires for a residence card. Although it is not compulsory to complete an application form, the relevant form is EEA(EFM). The application fee is £65.00 per applicant. Residence cards are issued valid for a maximum of 5years.
(6)DIRECT FAMILY MEMBER UNDER THE EEA REGULATIONS
It is also possible for adult dependant children to place reliance upon the EEA regulations:
“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).
The relevant Home office policy guidance is :
- Direct Family Members of European Economic Area (EEA) nationals – v3.0 Published for Home Office staff on 29 September 2015
Family members who come under regulation 7(1)(a), (b) and (c) of the Immigration (EEA) Regulations 2006 (‘the Regulations’) are often called ‘core ‘or ‘direct’ family members. The following can be considered as direct family members:
- spouse or civil partner
- direct descendants of the EEA national or their spouse or civil partner who are:
- under the age of 21
- dependants of the EEA nationals or their spouse or civil partner
- dependent direct relatives in the ascending line of the EEA national or their spouse or civil partner
Direct family members have an automatic right of residence in the UK for as long as they remain the family member of that EEA national and that person is either:
- entitled to reside in the UK for an initial period of 3 months
- a qualified person
- has a right of permanent residence
The applicant must provide evidence of their relationship to the EEA national sponsor.
A child or stepchild must provide documents which name the EEA national sponsor or their spouse as the parent, for example a full birth certificate.
A child aged 21 or over and any relatives in the ascending family line must prove they are dependent on the EEA national sponsor. Where dependency is necessary, the family member does not need to be living or have lived in an EEA state where the EEA national sponsor also lives or has lived. Their dependency on the EEA national sponsor does not need to have existed before they came to the UK.
The decision make is required to consider the following:
- does the applicant need financial support to meet their essential needs from the EEA national, their spouse or civil partner
- If the applicant cannot meet their essential living needs without the financial support of the EEA national, they must be considered dependent even if they also receive financial support or income somewhere else
Essential needs include accommodation, utilities and food. Dependency must be shown by financial documents that show money being sent by the sponsor to the applicant.
The applicant must provide proof of their dependency such as:
- bank or building society statements
- evidence of money transfers
- evidence of living in the same household if applicable
- other evidence to show their EEA national sponsor has enough money to support them and the applicant is reliant on them for this
EEA family permit applications are issued free of charge.
Although persons with a right to reside as a direct family member do not need to complete an application form, they can apply for a residence card using form EEA(FM). The relevant application fee per person is £65.00. Residence cards are valid for a maximum of five years.
(7)PARAGRAPH 276ADE OF THE IMMIGRATION RULES
An adult child or sibling might have resided in the UK legally or illegally for a considerable period of time and as such may be able to rely upon paragraph 276ADE on account of their private life in the UK .
Paragraph 276ADE provides as follows:
“Requirements to be met by an applicant for leave to remain on the grounds of private life
276ADE (1). The requirements to be met by an applicant for leave to remain on the grounds of private life in the UK are that at the date of application, the applicant:
(i) does not fall for refusal under any of the grounds in Section S-LTR 1.2 to S-LTR 2.3. and S-LTR.3.1. to S-LTR.4.4. in Appendix FM; and
(ii) has made a valid application for leave to remain on the grounds of private life in the UK; and
(iii) has lived continuously in the UK for at least 20 years (discounting any period of imprisonment); or
(iv) is under the age of 18 years and has lived continuously in the UK for at least 7 years (discounting any period of imprisonment) and it would not be reasonable to expect the applicant to leave the UK; or
(v) is aged 18 years or above and under 25 years and has spent at least half of his life living continuously in the UK (discounting any period of imprisonment); or
(vi) subject to sub-paragraph (2), is aged 18 years or above, has lived continuously in the UK for less than 20 years (discounting any period of imprisonment) but there would be very significant obstacles to the applicant’s integration into the country to which he would have to go if required to leave the UK.
276ADE (2). Sub-paragraph (1)(vi) does not apply, and may not be relied upon, in circumstances in which it is proposed to return a person to a third country pursuant to Schedule 3 to the Asylum and Immigration (Treatment of Claimants, etc) Act 2004”.
The relevant Home Office Instruction Guidance is:
- Immigration Directorate Instruction, Family Migration: Appendix FM Section 1.0b , Family Life (as a Partner or Parent) and Private Life: 10-Year Routes
Where an applicant intends to submit an application by reliance upon paragraph 276ADE(v), the relevant application form is FLR(FP). The Home office application fee per person is £811.00. The NHS Health Surcharge per applicant is £500.00.
All relevant periods of residence must be evidenced by documentary evidence from official sources such as letters from the GP, bills, payslips, P60’s, letters from school/college or university.
Limited leave to remain on the grounds of private life in the UK may be granted for a period not exceeding 30 months provided that the Secretary of State is satisfied that the requirements in paragraph 276ADE(1) are met. Such leave shall be given subject to a condition of no recourse to public funds unless the Secretary of State considers that the person should not be subject to such a condition.
Where an applicant does not meet the requirements in paragraph 276ADE(1) but the Secretary of State grants leave to remain outside the rules on Article 8 grounds, the applicant will normally be granted leave for a period not exceeding 30 months and subject to a condition of no recourse to public funds unless the Secretary of State considers that the person should not be subject to such a condition.
(8) ARTICLE 8 OF THE ECHR- RIGHT TO PRIVATE AND FAMILY LIFE
Whether in the context of an application or appeal, an adult dependant relative( child or sibling) may face several problems in establishing their Article 8 rights. The issue will be whether they can show that in law they do have a family life with their parent(s) or sibling(s). Considerations of proportionality of removal also come into play.
Ghising v Secretary of State for the Home Department  UKUT 00160 (IAC), contains a thorough review of the case-law about the application of article 8 in the case of adult family members and concludes that there are no blanket rules and that each case should be decided on the basis of a careful analysis of its particular facts.
Article 8 considerations can be somewhat complex when it comes to adult dependant children/siblings and as such merit separate future consideration away from the current options.
Where an applicant intends to submit a leave to remain application by reliance upon Article 8, the relevant application form is FLR(FP). The Home office application fee per person is £811.00. The NHS Health Surcharge per applicant is £500.00.
From the above considerations, it can be seen that there are several options available to adult dependent children/siblings. Article 8 consideration outside the Immigration Rules remain however a real and practical option in the majority of cases, in particular in-country applications.