Adult Dependent Relative Visa: Proving Unavailability of Care
In Adult Dependent Relative visa applications, an Applicant must demonstrate that the level of care they require for their specific conditions is unavailable or unaffordable in the country where they are living (ADR 5.2). Whilst the evidence demonstrating a need for long-term personal care to perform everyday tasks might be more immediately obvious – namely medical expert reports – proving the unavailability of care can pose a challenge. Unlike the financial requirements, which must meet the strict rules under Appendix FM-SE, there is no specified evidence required to demonstrate unavailability of care. It is worth noting that there used to be specified evidence requirements for evidence of long-term personal care needs under paragraph 35 Appendix FM-SE, which you might see referred to in our previous blogs, but have now been deleted. In this post, we delve into the different types of evidence that may help satisfy the Entry Clearance Officer (‘ECO’) that the required level of care is unavailable.
Appendix Adult Dependent Relative: ADR 5.1 and 5.2
ADR 5.1. The applicant, or if the applicant is applying as a parent or grandparent, the applicant’s partner, must as a result of age, illness or disability require long term personal care to perform everyday tasks.
ADR 5.2. Where the application is for entry clearance, the applicant, or if the applicant is applying as a parent or grandparent, the applicant’s partner, must be unable to obtain the required level of care in the country where they are living, even with the financial help of the sponsor because either:
(a) the care is not available and there is no person in that country who can reasonably provide it: or
(b) the care is not affordable.
The Home Office Guidance, ‘Family Policy: Adult Dependent Relatives’ Version 5.0 (07 August 2023) elaborates on the meaning of ‘required level of care’ on pages 12 and 13 as follows:
“The “required level of care” is a matter to be objectively assessed, with reference to the specific needs of the applicant. The level of long-term personal care must be what is required by the individual applicant to perform everyday tasks, in light of their physical needs and any emotional or psychological needs, in each case as established by evidence provided by a doctor or other health professional.
In considering whether the care is available in the country in which the applicant is living, the ECO will consider both what care is available, and whether it is realistically accessible to the applicant. As to the latter, consideration should be given both to the geographical location and the cost of such care.
“The ECO should 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.
[…]
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.”
The ECO makes a broad evaluative assessment: as such, they will look at whether a combination of care arrangements (e.g. a domestic carer, a family member and neighbour combined) may provide adequate care. Adopting a thorough approach by using evidence from multiple sources is always encouraged, to strengthen the chances of an application succeeding.
Lack of available family care
The ECO will have to consider whether there is anyone living in the Applicant’s country who can reasonably provide this level of care instead of their family members in the UK. The Guidance suggests this could be, on the one hand, ‘a close family member: son, daughter, brother, sister, parent, grandchild, grandparent, a wider family member, friend or neighbour.’ Examples of evidence of why this is not possible will show that the family members either live too far away, or that they have their own care responsibilities, for children or other relatives, or health conditions which mean taking care of the Applicant is not reasonably feasible. This is not an exhaustive list as each application is decided on a case by case basis. This can be expressed in a variety of ways:
1. Witness statements: The Sponsor and their immediate family can explain their attempts to seek help from their family members in the country. They can also detail if anyone lives in close proximity to the Applicant and/or the existing caring responsibilities these friends and relatives have.
2. Letters of support: Family members and friends living in the country can explain the Applicant’s conditions and care needs, and why they personally cannot meet these needs due to where they are living or their own caring responsibilities.
3. Interactions with family members over text messages or calls: Screenshots of messages or calls to family members can directly demonstrate that, despite a Sponsor’s best attempts, they have been unable to persuade family members and friends to care for the Applicant.
4. Other documentary evidence: Documents proving a change of circumstances, for example, that relatives or friends previously living near the Applicant have now moved to another country, can offer cogent evidence of unavailability of care.
Our immigration barristers can advise on appropriate evidence from family members and friends, whether written or documentary, depending on the specific facts of your case.
Lack of available care homes or domestic help
In the alternative, the ECO will consider whether ‘another person who can reasonably provide the care required, e.g. a home-help, housekeeper, nurse, carer or care or nursing home.’ Here, a combination of enquiries by the Sponsor and their family into the care options in the country where the Applicant is living and expert opinions should help paint a clear picture of why the required level of care cannot reasonably be provided. It is worth remembering that the Guidance states the ECO must assess this ‘reasonableness’ standard from both the Applicant’s and care provider’s perspective. In BritCits v The Secretary of State for the Home Department [2017] EWCA Civ 368, the Court of Appeal stated at [59]:
“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, of course, to be objectively assessed.”
A variety of evidence may be relied on to ensure ADR 5.3 is met. Again, this list is not exhaustive as each case will turn on its individual facts. This evidence should be referred to in any witness statements by the Sponsor and their immediate family and legal submissions written in support of the application:
1. Enquiries into care homes/domestic carers: Evidence of emails, letters, text messages and calls to care homes in the vicinity of where the Applicant is living can help show why the care that exists is unaffordable or inadequate for the Applicant’s needs. The enquiries should be as extensive as possible, looking at care homes and domestic care options. The more information that can be provided about these options, the stronger the application will be.
2. Medico-legal reports: Expert medical opinions will be a relevant consideration in the broader evaluative assessment of why the existing care options are inadequate for the Applicant. For example, a doctor’s report may state that the Applicant needs round-the-clock care, to explain why domestic helpers for a few hours a day will not suffice, or that they suffer from mental health conditions, which the existing infrastructure in that country cannot properly take care of. A report from the doctor in the country where the Applicant is living can give an opinion on the existing geriatric care infrastructure in that country. Even if an assessment is conducted remotely by a UK-based psychiatrist, for example, they can still offer a view on why the Applicant’s emotional or psychological needs mean they cannot be reasonably cared for by anyone other than family members who they trust.
3. Country expert reports: These independently researched reports can help demonstrate that the care in the country where they are living is unavailable or inadequate. The expert will undertake their own research using objective evidence sources and their own expertise to reach conclusions on the questions asked in the letter of instruction. They can be particularly valuable in demonstrating cultural limitations, such as stigma surrounding mental health or biases against a particular social group which the Applicant could be exposed to in that country. Although not decisive, these reports can be highly persuasive in the context of an appeal.
4. Objective evidence: News articles, scholarly papers, or country guidance reports by NGOs, international organisations, the Home Office or other governments may also support the Applicant’s claim that the required level of care is unavailable or unaffordable. These should come from reliable sources, be dated in the last few years to ensure their relevance and be pertinent to the facts of the Applicant’s case. It is a matter of judgement how many pieces of evidence one decides to include; another option would be to include selected extracts, which can be referred to in witness statements and legal submissions.
Contact our Immigration Barristers
Our team of immigration barristers can assist you to identify and instruct a medical professional or country expert, by writing a letter of instructions outlining the issues they should address in their report, and help you collate objective evidence from other sources. For more guidance on the other requirements, read our Guide to Adult Dependent Relative Visas.
For expert advice and assistance in relation to an Adult Dependent Relative Visa application or appeal, contact our immigration barristers on 0203 617 9173 or complete our enquiry form below.
