Personal Immigration

A Guide to Adult Dependant Relative Visas

The Immigration Rules changed in July 2012 and restricted applications under the Adult Dependant Relative visa category.  Applications are only now granted in very limited circumstances. The rules prior to 2012 concentrated on financial dependence where the family member was over 65 or if under 65 where there were exceptional circumstances.  The new rules aimed to decrease the burden on the taxpayer through NHS and social care costs, taking into account where needs could be met in an individual’s home country. Further, the rules aimed to avoid imbalance between those relying just on wealth.  

The matter was litigated in Britcits  [2017] EWCA Civ 368; although the rules were held to be lawful, some of the requirements were clarified, and the guidance relied on by caseworkers was then amended to reflect this decision.

Impact of the Changes to the Adult Dependant Relative route

The last published review  Adult dependent relatives: review was dated  8 December 2016.  This review confirmed that under the old rules (from 1 April 2010 to 31 March 2011), 2,325 Adult Dependant Relative (ADR) applications were granted.

The review considered how applications were granted under the new rules and system, and provided interesting statistics:-

  • From 9 July to 31 October 2012, one ADR settlement visa was issued;
  • From 1 November 2012 to 30 September 2013, 34 ADR settlement visas were issued;
  • From 9 July 2012 to 31 December 2014, there were 2,330 ADR applications, 491 of which were granted:
  • 145 at initial decision;
  • 60 on appeal following a review by an Entry Clearance Manager (ECM);
  • 286 following an appeal allowed by the Tribunal.

The 2014 refreshed data in respect of appeal outcomes showed that in 2014 of 723 ADR applications, 135 were granted:

  • 37 at initial decision. o 3 following a review by an ECM;
  • 95 following an appeal allowed by the Tribunal.

In 2015, there were 452 ADR applications, 50 of which were granted:

  • 22 at initial decision;
  • 7 following a review by an ECM;
  • 21 following an allowed appeal.

Some appeals were ongoing and therefore the figures not final, but they did show a dramatic and significant decline.  

“The data for 2013 and 2014 show that, once grants following ECM reviews and allowed appeals are taken into account, around 19% of ADR applications were granted in 2013 and 2014. The data for 2015 show that around 11% of ADR applications have been granted; this figure may increase once the outcome of the outstanding appeals is known”.

The review concluded at paragraph 35: “The new ADR rules provide immediate settled status in the UK, and free access to the NHS, to those ADRs whose long-term personal care needs cannot adequately be met in their home country and can be met here with the support of their sponsor, regardless of whether the ADR or their sponsor has substantial financial means. This reflects the policy intention of reducing burdens on the taxpayer while continuing to allow ADRs to settle here where their long-term personal care needs can only adequately be met in the UK by their sponsor here, without recourse to public funds”.

The figures themselves confirmed the decline in successful applications in this category, confirming the need for an application to be detailed, well prepared and exploring all potential options.  Applications need to be planned and processed with a potential further challenge in mind.

What are the main eligibility requirements for an Adult Dependent Relative visa?

The rules are set out in section EC-DR of Appendix FM.  

An applicant must not fall for refusal under any of the grounds in Section S-E: Suitability for entry clearance, and must meet the requirements of Section E-ECDR: Eligibility for entry clearance as an adult dependent relative.  

In order to meet the eligibility requirements for an Adult Dependent Relative visa you will need to satisfy UK Visas and Immigration that:

  • You are the parent aged 18 years or over, grandparent, brother or sister aged 18 years or over or son or daughter aged 18 years or over of a person who is in the UK and that person is over 18 and either a British citizen, settled in the UK or a person with refugee leave or humanitarian protection status.

Evidence of the relationship will need to be provided, for example a birth certificate.  An ECO will assess if they are of the view other evidence to prove the relationship is required.  

If the applicant is the sponsor’s parent or grandparent they must not be in a subsisting relationship with a partner, unless the partner if the sponsor’s parent and grandparent and applying at the same time for entry clearance.  

  • As a result of age, illness or disability, you require long-term personal care, that is help performing everyday task.

The applicable Immigration Directorate Instruction Family Migration: Appendix FM Section 6.0 Adult Dependent Relatives August 2017 guidance gives examples of  washing, dressing and cooking.  The guidance confirms that “this situation may have been arrived at recently – such as the result of a serious accident resulting in long-term incapacity – or it could be the result of deterioration in the applicant’s condition over several years”.

  • You are unable, even with the practical and financial help of your family member in the UK, to obtain the required level of care in the country where you are living because it is not available and there is no person (close relative, home-help, housekeeper, nurse, carer, care or nursing home) in your country who can reasonably provide it, or because it is not affordable.

This is more difficult because if a sponsor can show they can afford to maintain and accommodate their dependent relative for five years, they then will find it hard to prove that they cannot afford to provide care for that relative in their country of origin.  The rules refer to the required level of care within the country the applicant is from, which is a very wide test.

If the sponsor is British they will be expected to sign a 5 year undertaking to this effect.

In line with the guidance an ECO must consider: “whether there is anyone in the country where the applicant is living who can reasonably provide the required level of care. This might be a close family member: son, daughter, brother, sister, parent, grandchild, grandparent; a wider family member, friend or neighbour; or another person who can reasonably provide the care required, e.g. a home-help, housekeeper, nurse, carer or care or nursing home

If an applicant has more than one close family member in the country where they are living, those family members may be able to pool resources to provide the required care. The concept of whether another person can “reasonably” provide care may require consideration of such matters as the location of that person, their own circumstances and other commitments, and their willingness to provide such care.

The fact that a person or organisation has been providing care for a period may suggest that they can continue to do so: however, if evidence is provided as to the temporary nature of such care, or as to a change in circumstances, this must be carefully considered.

The provision of the care in the applicant’s home country must be reasonable both from the perspective of the provider of the care and the perspective of the applicant.

The ECO should bear in mind any relevant cultural factors, such as in countries where women are unlikely to be able to provide support in some circumstances”.

  • You will be adequately maintained, accommodated and cared for in the UK by your family member, without recourse to public funds (if your family member is a British citizen or settled in the UK, they will be required to sign a 5-year undertaking to this effect).

Maintenance and accommodation are assessed using the entry clearance guidance on maintenance and accommodation.

Specified Documents

The specified document requirements are set out in Appendix FM-SE of the Immigration Rules.  

In accordance with Appendix FM-SE, paragraph 34, evidence that an applicant requires long term personal care must 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”.

In accordance with Appendix FM-SE, paragraph 35, evidence relating to the available care should be from:

“(a) a central or local health authority;

(b) a local authority; or

(c) a doctor or other health professional”.

An applicant will be expected to confirm why any private arrangement, which may have been in place, can no longer continue and if no longer affordable, evidence and explanation why not.  

More About The Adult Dependant Visa Route

The Adult Dependent Relative visa route is only available to applicants outside the UK. It is not possible to switch into this route from within the UK within the Immigration Rules.

If you are granted an Adult Dependent Relative visa the applicant will be permitted to enter, and remain in the UK, indefinitely.

Adult Dependent Relative Rules not met

Where the substantive rules are not met, consideration will be given as to whether there are “exceptional circumstances”.  An ECO will consider whether Article 8 right to respect for private and family life of the European Convention on Human Rights (ECHR) is engaged.  The ECO will consider whether the decision would result in unjustifiably harsh consequences.

Given the complex nature of these applications you may consider seeking expert advice.  

Contact Our Immigration Barristers

For expert advice regarding eligibility for an Adult Dependent Relative visa or challenging a refusal of an Adult Dependant Relative visa, contact our direct access immigration barristers on 0203 617 9173 or complete our enquiry form below.

SEE HOW OUR IMMIGRATION BARRISTERS CAN HELP YOU

To arrange an initial consultation meeting, call our immigration barristers on 0203 617 9173 or fill out the form below.

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