Adult Dependent Relative Visa: European Court Rules on Family Life Between Adult Siblings
In This Article
1. Introduction to Martinez Alvarado v the Netherlands
2. Understanding Article 8 ECHR: Right to Private and Family Life
3. Insights from the Martinez Alvarado v the Netherlands Case
4. The Court’s Interpretation of Family Life Between Adult Relatives
5. Key Factors Considered by the Court in Recognising Family Life
6. The Role of Article 8 in Adult Dependent Relative Visa Applications in the UK
7. Contact Our Immigration Barristers
8. Frequently Asked Questions
9. Glossary
1. Introduction to Martinez Alvarado v the Netherlands
In Martinez Alvarado v the Netherlands, the European Court of Human Rights (ECHR) has recently ruled on a case regarding family life between adult siblings. This case provides useful insights when preparing an Adult Dependent Relative visa application for the UK. The Adult Dependent Relative visa is used to bring elderly, unwell or disabled people to be cared for in the UK. This immigration route has a high rate of refusals. The applicants are often the parents or siblings of the UK-based sponsors. Family life between adult relatives such as parents and their adult children or adult siblings is not as readily recognised as it is between parents and children under 18 or between partners. Therefore, this case gives guidance on when family life will be recognised and given weight in immigration applications such as the Adult Dependent Relatives visa.
2. Understanding Article 8 ECHR: Right to Private and Family Life
Article 8 ECHR is the right to respect for private and family life. There are two limbs to article 8. The first limb states that everyone has the right to respect for his private and family life, his home and his correspondence.
The second limb states that public authorities, such as immigration authorities, shall not interfere with this right unless the interference is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.
3. Insights from the Martinez Alvarado v the Netherlands Case
The applicant in the case was an adult man with a severe intellectual disability and as a result he “functions at the cognitive level of an eight-year-old child”. The applicant had always been cared for by his parents in his family home in Peru. His four sisters lived in the Netherlands and his brother lived in Peru but frequently travelled internationally due to work commitments. After the applicant’s parents died his sisters brought the applicant to the Netherlands and applied for a family reunification visa so that he could stay and be looked after by his sisters permanently in the Netherlands. The applicant’s representatives argued that he could not be looked after by his brother in Peru, due to the brother’s frequent travel, and there were no suitable facilities in Peru that could care for the applicant. The applicant’s visa application was refused and the case was challenged up to the ECtHR.
4. The Court’s Interpretation of Family Life Between Adult Relatives
The Court held that family life for the purpose of Article 8 of the European Convention on Human Rights (ECHR) is normally limited to the core family i.e. partners and children under 18. There is no family life between parents and adult children or adult siblings, for the purposes of Article 8, unless they can show “additional elements of dependence, involving more than normal emotional ties”.
Whether these “additional elements of dependence” are present should be decided on a case-by-case basis. However, certain factors can be identified from the case law:
- Where adults have a physical or mental disability or illness which is serious enough that they are in need of constant care and support from other family members;
- Financial dependency, in combination with other factors can indicate additional ties of dependency, but on its own it is not sufficient;
- Where the applicant and the sponsor are each other’s only surviving relatives;
- Where the applicant has few remaining ties to their country of origin;
- Where there are no family members who can provide care, or other viable alternatives, in the country of origin.
5. Key Factors Considered by the Court in Recognising Family Life
Firstly, the court placed a lot of weight on the severity of the applicant’s disability. It was not in dispute between the parties that the applicant’s disability rendered him “fully dependent in his daily life on the care of others”.
Secondly, the court placed weight on the fact that the applicant had always been looked after by close family members. He was cared for by his parents in Peru up to their deaths and by his sisters for the five and a half years he lived in the Netherlands. The court stated that the fact that family ties were created or developed at a time when the immigration status of a family member is precarious is a factor that needs to be taken into account in the balancing exercise under the second limb of article 8. It has no bearing on whether family life is recognised under the first limb of article 8. Thus, the authorities were wrong to focus solely on the time period before the applicant’s parents’ deaths when the applicant lived in Peru, and discount the time he spent in the care of his sisters when determining whether there was family life between the adult siblings.
Thirdly, the court considered that due to the applicant’s disability his “perception of society was very limited” and the world outside of his close family circle was “often incomprehensible” to him. This factor, combined with the lack of institutional care options in Peru, meant that the court was satisfied that additional elements of dependency, other than normal emotional ties” existed between the applicant and his sisters.
6. The Role of Article 8 in Adult Dependent Relative Visa Applications in the UK
Applications for Adult Dependent Relative visas are very frequently refused because the applicant has the difficult task of proving that they cannot obtain the required level of care in their country of residence because it is not available and there is no person in that country who can reasonably provide it or it is not affordable. See our previous article Adult Dependent Relative Visa: Proving Unavailability of Care.
When appealing the refusal of an application for an Adult Dependent Relative visa, the applicant will need to show that the Home Office acted in breach of article 8 ECHR. The applicant will need to show there was family life between them and their sponsor (frequently a parent or sibling), before showing that the refusal was a disproportionate interference with their family life with their sponsor. Thus, the case of Martinez Alvarado v the Netherlands gives useful guidance on when the courts will recognise family life between adult relatives and the sorts of arguments that applicants should make in these cases.
7. Contact Our Immigration Barristers
For expert advice and assistance with applications for an Adult Dependent Relative visa or challenging a refusal of an Adult Dependent Relative visa, contact our immigration barristers on 0203 617 9173 or complete our enquiry form below.
