“The question is whether there is now general acceptance that these rules are here to stay as unchallengeable/unamendable….”,  so enquired  my previous blog article of October 2015 in relation to the  Rules  relating to Adult Dependent Relatives( ADR’s): Adult Dependant Relatives: Very Deliberately Onerous Rules

 

An ambitious challenge  brought   about by  BRITCITS in  BRITCITS v The Secretary of State for the Home Department [2017] EWCA Civ 368 (24 May 2017) has elicited a negative response to the question of whether the ADR Rules  can be challenged successfully with a view to striking them  down as unlawful. Rather, the Court of Appeal emphasized  disappointingly, “ True it is that significantly fewer dependants, including parents, will be able to satisfy the new conditions but that was always the intention”.

 

Points of contention put forward before the Court of Appeal:

 

The challenge brought on by BRITCITS arose out of  an application for judicial review seeking to quash provisions of the Immigration Rules introduced in 2012 on the admission to the UK of adult dependant relatives of British citizens, persons settled in the UK and those in the UK pursuant to refugee leave or humanitarian protection.

 

A declaration was sought that  the new ADR Rules were  unlawful and an order quashing them. Whilst the judicial review  challenge failed,  permission was granted to appeal  to the Court of Appeal.

 

On behalf of the Appellant( BRTCITS) was presented the  paradigm factual situation of a UK citizen with an elderly parent resident outside the UK, who is dependant on the UK citizen, and both the parent and the UK citizen wish the parent’s last years to be spent being cared for by his or her child and enjoying time with his or her grandchildren.

 

The following arguments, among others were put forward on behalf of BRITCITS:

 

• As a matter of principle on the wording of the new ADR Rules, and on the evidence, it is almost always impossible in such a paradigm case for the conditions of the new ADR Rules to be fulfilled.

• Guidance contemplates that the conditions are never satisfied if care can be provided by a paid carer in the parent’s home country.

• The critical deficiency in the new ADR Rules is that they make no acknowledgment of the psychological and emotional needs of a parent and which cannot be met by a paid carer.

• The Rules themselves contain no express provisions for indefinite leave to enter to be granted to an ADR, where the prescribed conditions cannot be satisfied, if there are exceptional circumstances; nor, is any such provision for leave to be given in exceptional circumstances contained in the Guidance. In short, there is no provision in the new ADR Rules for the exercise of any residual discretion by the Secretary of State.

• The evidence bears out the practical impossibility of satisfying the new ADR Rules in virtually all cases.

• Persons are deterred from applying under the new ADR Rules because, if such an application is unsuccessful, it is likely to have a detrimental effect on the applicant’s ability to obtain entry clearance for the UK as a visitor in the future.

• Reliance was placed on evidence of a number of First-tier Tribunal decisions on appeals under the new ADR Rules. In some of them an appeal was allowed on Article 8 grounds. The appellant had found only two cases where an application under the new ADR Rules has succeeded.

• The new ADR Rules are outside the scope of section 1(4) of the 1971 Act on the Padfield principle (Padfield v Minister of Agriculture, Fisheries and Food [1968] AC 997). That contention was advanced on the basis that, on its proper interpretation, section 1(4) of the 1971 Act imposes a duty on the Secretary of State to make provision for the dependants of those lawfully in or entering the UK; but the new ADR Rules, by effectively making it impossible in virtually all cases for a successful application to be made in the paradigm case, fail to do so and run counter to the policy and objectives of the 1971 Act.

• The Appellant contended that the new ADR Rules are invalid for the same reason as the relevant immigration rule was struck down in R v Immigration Appeal Tribunal ex parte Manshoora Begum [1986] Imm AR 385. That case concerned the refusal of an application by a Pakistani lady under paragraph 52 of the Immigration Rules HC 169 for entry clearance to settle in the UK as the dependant relative of the applicant’s British brother. That Rule imposed the requirement that the relative must have “a standard of living substantially below that of their own country”. The Court accepted the submission that any applicant who was able to satisfy the requirement of being mainly dependant on his or her sponsor, who was able and willing to maintain and accommodate the applicant, was: “…singularly unlikely to comply with the requirement [contained in the Rules] that their actual standard of living is substantially below that of their own country. Thus the rule is a snare and a delusion, a pretence which raises expectations without there being any real possibility of fulfilling them.” The Court, applying the principles in Kruse v Johnson [1898] 2 QB 91, struck down the Rule as extremely unreasonable both for that reason and because it was “partial and unequal” in its operation as between different classes (namely applicants living in poor countries and applicants living in affluent countries).

• A sponsor capable of maintaining, accommodating, supporting and caring for their ADR in the UK without recourse to public funds (as required under the new ADR Rules), and who has, in many cases, been providing the relative with support abroad, will find it next to impossible to assert that it is not possible for their relative to be looked after by a paid carer or carers abroad funded by the sponsor and other family members. It is virtually impossible for anyone to meet the test.

• In every paradigm case, there is family life which engages the protection of Article 8. The refusal of an application under the new ADR Rules in such a paradigm case is necessarily an interference with family life. Such an interference is disproportionate and so in breach of Article 8 and unlawful under section 6 of the Human Rights Act 1998, having regard to the fourfold test Huang v Secretary of State for the Home Department [2007] UKHL 11, [2007] 2 AC 167 at [19].

• The new ADR Rules give no, or insufficient, consideration to the nature and extent of the family interests engaged. The Rules give no weight to emotional ties since they proceed on the basis that care given by a paid provider is adequate care, no matter the extent to which family provided care would improve the ADR’s quality of life; no regard is paid to the benefit that the parties will draw from reunion and precious time before the ADR becomes so incapable as to need extensive personal care for basic tasks; no regard is paid to wider family interests, such as the relationship between grandparents and grandchildren and the value to the latter of the cultural heritage obtained from contact with their grandparents; there is no consideration of the cultural norm in many communities for looking after elderly relatives.

• The Secretary of State could have taken measures which would have achieved the same objective as the new ADR Rules and been less intrusive of the right to family life. Those alternatives were said to include the following: requiring ADRs to take out private health insurance; imposing an income threshold upon the sponsor to ensure that they have sufficient funds to provide for their ADRs; requiring ADRs to pay for any treatment received; imposing immigration health surcharges upon ADRs; requiring a bond from ADRs which may be drawn upon if the NHS or other public services are used; adopting a system of granting limited leave to ADRs, or a ‘probationary period’, and then assessing their position and cost (if any) to the tax-payer on a rolling basis; imposing a quota on the number of ADRs admissible each year.

• The new ADR Rules will be disproportionate and so unlawful in all or nearly all cases. That is the test approved by the Supreme Court in R (MM (Lebanon)) v Secretary of State for the Home Department [2017] UKSC 10, [2017] 1 WLR 771 for striking down immigration rules, and so the new ADR Rules must be struck down in the present case.

The Court of Appeal’s response and conclusions:

 

The Court of Appeal dismissed the appeal for the following reasons, amongst others:

 

• The policy intended to be implemented by the new ADR Rules, as appeared from the evidence, the new ADR Rules themselves and the Guidance, is clear enough. It is twofold: firstly, to reduce the burden on the taxpayer for the provision of health and social care services to those ADRs whose needs can reasonably and adequately be met in their home country; and, secondly, to ensure that those ADRs whose needs can only be reasonably and adequately met in the UK are granted fully settled status and full access to the NHS and social care provided by local authorities. The latter is intended to avoid disparity between ADRs depending on their wealth and to avoid precariousness of status occasioned by changes in the financial circumstances of ADRs once settled here.

• As is apparent from the Rules and the Guidance, the focus is on whether the care required by the ADR applicant can be “reasonably” provided and to “the required level” in their home country. The provision of care in the home country must be reasonable both from the perspective of the provider and the perspective of the applicant, and the standard of such care must be what is required for that particular applicant. It is possible that insufficient attention has been paid in the past to these considerations, which focus on what care is both necessary and reasonable for the applicant to receive in their home country. Those considerations include issues as to the accessibility and geographical location of the provision of care and the standard of care. They are capable of embracing emotional and psychological requirements verified by expert medical evidence. What is reasonable is to be objectively assessed.

• The Court did not accept that, in considering the legality of the new ADR Rules, it is right to concentrate only on the described the paradigm case, namely a dependency as between ADR parent and UK sponsor child. The new ADR Rules also extend to grandparents, brothers and sisters of 18 years or over and sons and daughters of 18 years or over.

• It is incorrect to say that inevitably it is nearly always impossible for an applicant to satisfy the new ADR Rules. It was not necessary, however, to place reliance on figures to see that there is no inevitability about the failure of most applications under the new ADR Rules, whether such applications are by parents or, more relevantly, the wider category of relatives authorised to apply under the new ADR Rules, once it is appreciated that an application will only be rejected on the ground of the adequacy of care available in the applicant’s home country if the care that is available is both reasonable for the applicant to receive and of the level required for that applicant. Furthermore, the Guidance gives a number of example scenarios in which the Secretary of State accepts that a dependant applicant can meet the criteria in the new ADR Rules.

• The new ADR Rules do precisely what section 1(4) requires, namely making provision “in such cases and subject to such restrictions as may be provided in the rules” for persons coming as dependants of persons lawfully in or entering the UK. The statute does not require that all dependants or any particular category of dependants be permitted to enter and stay. There is nothing in section 1(4) to indicate an intention of Parliament to fetter the Secretary of State’s discretion to make rules concerning ADRs by imposing a minimum threshold of stringency or a minimum width of gateway, let alone indicating what any such minimum might be. The obligation to make rules described by Lord Dyson is Munir at [28] has been satisfied. It would have been perfectly within section 1(4) (subject to Article 8) for the Secretary of State to exclude adult dependants altogether from persons who must be admitted.

• While a British citizen has a personal right to live in the UK “without let or hindrance”, there is nothing in the 1971 Act or the common law that grants a constitutional right of British citizens to live in the UK with non-EEA persons who do not have the right of abode in the UK.

• The new ADR Rules give effect to the policy and achieve the objectives intended. Nor do the new ADR Rules operate in an arbitrary or capricious way as between different categories of ADR. Each case will turn on its own particular facts. There may be some countries where there is provision of a high standard of care and it will be difficult to satisfy the conditions in the new ADR Rules because the cost of acquiring such care is not exceptionally high; and there will be other countries where the cost may be very high and unaffordable by the ADR, even with financial support from the UK sponsor.

• It is relevant that the proposed policy and objectives of the new ADR Rules were the subject of prior consultation, debate within Parliament and Parliamentary approval following that debate. While such matters are not necessarily conclusive, they are plainly highly relevant to a challenge on a common law Kruse v Johnson challenge of unreasonableness.

• The Court of Appeal rejected the Appellant’s submission that there is family life which engages Article 8 in every case where a UK sponsor wishes to bring their elderly parent to the UK to look after them. There is no presumption that a person has a family life, even with the members of a person’s immediate family. The court has to scrutinise all the relevant factors. There must be something more than normal emotional ties.

• In order to strike down the new ADR Rules, regard must be had to their proportionality in relation to all the dependants that can apply pursuant to them and whose family life engages Article 8, and not just to the category of parent and adult child.

• The appellant had not established that the conditions for entry and right to remain for ADRs under the new ADR Rules are incapable of practical fulfilment in virtually all cases for parents, let alone for all the categories of ADRs entitled to apply, whose family life engages Article 8. In particular, rejection on the basis of the availability of adequate care in the ADR’s home country turns upon whether the care which is available is reasonable for the ADR to receive and of the level required for that applicant. Contrary to the submission of the appellant, those considerations are capable, with appropriate evidence, of embracing the psychological and emotional needs of elderly parents.

• In carrying out the exercise of balancing the interests of ADRs and sponsors, on the one hand, and the public interest on the other hand, significant weight must be given to the fact that the proposed policy and objectives of the new ADR Rules were the subject of prior consultation, debate within Parliament and Parliamentary approval following that debate. The weight to be attributed to the achievement of that policy and those objectives rather than the retention of sponsors who might prefer to re-locate to countries which have a less rigorous policy for permitting dependants to enter and remain, and rather than avoiding the risk of deterring potentially desirable immigrants, is essentially a matter for the government and Parliament to decide.

• The balance depends on the facts of any particular case – the particular strength of the family bond and all other matters in favour of the particular applicant, on the one hand, and the public interest in achieving the policy and objectives of the new ADR Rules, on the other hand.

• The evidence shows that, prior to the introduction of the new ADR Rules, consideration was given by the Home Office to various alternative means by which the policy objectives of the Secretary of State might effectively be achieved, and a number of those alternatives were the subject of consultation. The Court observed that in the material before the Court an explanation was given on behalf of the Secretary of State why each of the alternative options suggested by the Appellant as less intrusive of family life were not desirable as a matter of policy. It was sufficient to say that the reasons given by the Secretary of State for their unsuitability, in the context of achieving the policy of the new ADR Rules, approved by Parliament, are not obviously flawed and are, again, essentially matters of policy for the government and Parliament rather than the court.

• The formal claim was that the new ADR Rules are defective and should be quashed. No relief was sought in respect of the Guidance. The challenge in the proceedings was to the ADR immigration rules themselves, with a view to quashing them as unlawful.

• The Court of Appeal dismissed the appeal.

 

Conclusion

 

So, at least for now, it seems the ADR Rules are here to stay.

 

A bold and ambitious task was undertaken by BRITCITS, for which they are to be commended, however it would be highly desirable in light of the issues at stake, if the job begun could be followed up through to completion by a continuing challenge to the Supreme Court.