Personal Immigration

Adult Dependent Relatives - Ribeli v Entry Clearance Officer, Pretoria

In an earlier blog post we examined the Immigration rules relating to adult dependent relatives which were introduced in July 2012.  

The position was recently examined in the decision of Ribeli v Entry Clearance Officer, Pretoria [2018] EWCA Civ 611. This was an appeal from a decision of the Upper Tribunal (Immigration and Asylum Chamber) dated 20 January 2016, which was itself an appeal by the Respondent Entry Clearance Officer from a First-tier Tribunal decision dated 31 March 2015.

The Facts

The Appellant was born on 8 August 1953 and is a South African national. She suffers from a number of medical conditions, including a degenerative back disease, osteoarthritis and fibromyalgia.  Her daughter sponsored the application, she was formerly a citizen of South Africa and now a British citizen. The application was refused on 14 May 2014. The ECO considered that the Appellant could obtain the necessary care and support in South Africa.

The ECO had before him a letter from the Appellant’s doctor dated 18 December 2013 which confirmed the conditions and stated: “Mrs Ribeli’s only daughter lives overseas, and I believe that this has caused significant distress to her particularly given her deteriorating medical condition over the past 4 years. It is important that patients who suffer from conditions resulting in chronic pain receive encouragement and emotional support from family members in order to develop a coping mechanism for daily life. This support also serves to relieve stress and anxiety which are known to amplify symptoms. In Mrs Ribeli’s case, I believe her anxiety is primarily as a result of being separated from her daughter”.  The First-tier Tribunal had a further letter stressing the anxiety and depression. Further, Counsel raised the fact that the daughter would have to leave the UK  if her mother was not granted entry clearance.

Decision of the First-tier Tribunal

The First-tier Tribunal Judge found that care was no available in South Africa.  The Judge accepted that South Africa is a dangerous country, that this Appellant is  an unprotected vulnerable person. The only steps for the Appellant were to live in a secure compound.  The Judge found that there was no emotional support for the Appellant in South Africa and that it was wrong to conclude that because the Appellant had a need, it must be being met currently.

Decision of the Upper Tribunal

The Upper Tribunal, set aside the decision, noting that there was an unresolved issue relating to care.  The Upper Tribunal remade the decision, finding that the care did not meet the requirements as there no evidence to indicate it was not available outside of Cape Town.  The Upper Tribunal Judge concluded that it was reasonable for the Appellant’s daughter to move back to South Africa. The Tribunal noted that the Appellant was not a young child.  

Decision of the Court of Appeal

The Court of Appeal referred to the earlier Court of Appeal decision in Britcits [2017] EWCA Civ 368. In that case The Master of the Rolls at paragraph 58: “… 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 own 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.”  

The judgment continues at paragraph 59: “… The focus in on whether the care required by the ADR applicant can be ‘reasonably’ provided and to ‘the required level’ in their home country. As Mr Sheldon [counsel for the Secretary of State] confirmed in his oral submissions, 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.”

The Court of Appeal upheld the finding that it had not been shown that there was no care available in the entirety of South Africa, the application had focused on one area.  The Court of Appeal further concluded that the Appellant had not demonstrated that her anxiety and depression were not severe enough to show that the care was not available.

Finally, the judgment holds that refusing the application was not enough to result in a breach of Article 8 of the ECHR.  The Court identified that the Appellant had “emphasised the contents of that passage, in particular the references to the standard of care being “what is required for that particular applicant” and to the “emotional and psychological requirements” of an applicant”.

As per paragraph 70 the Court concluded: “As the UT Judge observed, at the end of the day, what this case is about is the choice which Ms Steenkamp has exercised and wishes to be able to continue to exercise of living and working in a major international centre like London rather than in South Africa, which is her own country of origin. She is entitled to exercise that choice. But, in those circumstances, the UT cannot be faulted for having come to the conclusion that any interference with the Appellant’s right to respect for family life conforms to the principle of proportionality”.

Concluding Comment

This case demonstrates the almost impossible threshold imposed for adult dependent relative applications and appeals.  Demonstrating that there are no care facilities available throughout the entire country is a difficult and onerous task, not to mention time consuming and expensive.  It is heartbreaking for those who have built a life in the UK and are committed to a future here. Individuals are forced to to choose between continuing that life and permanently leaving in order support and protect those relatives who desperately need their care  and support.

Contact Our Immigration Lawyers

For advice or assistance with applying for an adult dependent relative visa, or challenging a decision to refuse entry clearance as an adult dependent relative, contact Alexandra Pease.  Alternatively, you can reach our immigration barristers in London on 0203 617 9173 or via our enquiry form.

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