Applying for an Adult Dependent Relative Visa After an Unsuccessful Appeal
Your adult dependent relative (‘ADR’) visa application is denied. Your appeals are dismissed. Your options are exhausted. And your loved one is still without a UK visa. Now what?
Facing this predicament, many clients turn to us for help. While a fresh ADR application might be an option, it’s advisable to consult a legal professional first. Our barristers can advise you on your options at this stage.
A multi-entry visit visa might be a viable option, but beware of the conflicting requirements. A visit visa application must demonstrate an intention to leave – while a previous adult dependent relative application is evidence of an intention to live permanently in the UK. A poorly prepared visit visa application can simply result in a quick and easy refusal from the Home Office.
Our step-by-step guide can help you navigate the challenging situation where your ADR application has been refused and your appeal rights are exhausted.
Step 1: Unravel the ADR Application Refusal
Firstly, it is important to understand why your initial ADR application and appeal were refused.
Two common reasons for refusals from Entry Clearance Officers are:
- The Applicant does not need long-term personal care;
- The Applicant could be cared for in their home country.
Even well-prepared adult dependent relative applications often stumble on these grounds. Strong independent evidence from a doctor or medical professional is essential to overcome these obstacles. Surmounting them demands meticulous preparation and different angles to be carefully addressed.
Consider consulting one of our expert barristers to help you explore the best angles and approaches for a second ADR application.
Step 2: Decide if a Fresh Application is Worth the Risk
Don’t make a fresh application merely hoping for a different outcome. This won’t be enough. If the second application is substantively the same as the first, a refusal is likely.
In other areas of law, the principle of res judicata would apply. This is the legal doctrine that matters already decided should not be re-litigated – a principle designed to ensure the finality of court judgments, bring closure to litigants, and avoid wasting court time and resources.
However, the Upper Tribunal and Court of Appeal have confirmed that the principle of res judicata does not apply in immigration appeals (Mubu and others (immigration appeals – res judicata) [2012] UKUT 00398 (IAC); Secretary of State for the Home Department v BK (Afghanistan) [2019] EWCA Civ 1358). Instead the courts have guidelines on the relevance of previous decisions. The guidelines were praised by the Court of Appeal in Djebbar v Secretary of State for the Home Department [2004] EWCA Civ 804:
“The great value of the guidance is that it invests the decision-making process in each individual fresh application with the necessary degree of sensible flexibility and desirable consistency of approach, without imposing any unacceptable restrictions on the second adjudicator’s ability to make the findings which he conscientiously believes to be right. It therefore admirably fulfils its intended purpose.”
These guidelines were issued by the Upper Tribunal in Devaseelan v Secretary of State for the Home Department [2002] UKIAT 702 on how courts will approach cases where there has already been a previous decision.
It is important to consider the risks of making a fresh application before doing so. Our barristers are experts in immigration law and proceedings and can talk you through the risks of making a fresh application in a consultation meeting.
Guidance in Devaseelan
Firstly, the determination of a previous judge provides the “starting-point” for the new decision-maker. Whether the appellant was properly represented or whether he gave evidence are irrelevant.
The Tribunal in Devaseelan held that if the facts “are not materially different” from those put to the first decision-maker, and they propose to support their claim by “what is in essence the same evidence as that available to the Appellant at that time”, then the second decision-maker “should regard the issues as settled” by the first decision and “make his findings in line with that determination rather than allowing the matter to be re-litigated.” The first decision is the “authoritative assessment” of the Appellant’s status at that time.
Secondly, facts happening since the first decision can be taken into account by the second decision-maker. After all, a second positive decision is not inconsistent with a prior negative decision if it is decided on new facts that were unavailable at the time.
Thirdly, facts happening before the first decision but having no relevance to the issues before the judge can be taken into account by the second decision-maker. Again, a second decision departing from the first is not inconsistent because the first decision-maker did not assess those facts.
Fourthly, facts personal to the appellant that were not brought to the attention of the first decision-maker, but that could have been, are treated with “the greatest circumspection”. Adding to the available facts in an effort to obtain a more favourable outcome is regarded as suspect. The new decision-maker is entitled to hold it strongly against an applicant’s credibility that they did not raise relevant personal facts at the time.
However, the Tribunal foresaw there may be circumstances where there is “some very good reason” why relevant evidence was not adduced before a first decision-maker. In these circumstances, it will not be held against the applicant. Generally speaking, presenting new personal facts that were available at the time of the previous decision, without a very good reason, “should not usually lead to any reconsideration” of the first decision. The Tribunal added that: “We think such reasons will be rare.” In particular, decision-makers should “be very slow” to conclude that an appeal before another decision-maker has been materially affected by the error or incompetence of a legal representative.
Fifthly, evidence of non-personal facts (e.g. country evidence) should be treated with caution but may not suffer from the same concerns as to credibility.
Application of this Guidance to Fresh ADR Applications
In reality, most adult dependent relatives are in worsening situations. Even without evidence of new illnesses or conditions, a significant downturn in an applicant’s health or circumstances is a new fact that may persuade a judge to distinguish a previous decision.
More complicated is the position in relation to pre-existing conditions that were not evidenced in the first application. If an adult dependent relative has a mental health condition that is not evidenced in the first application but is evidenced in the second, must a judge treat this with “the greatest circumspection”?
On the one hand, arguably the new evidence relates to a personal fact that should have been brought to the attention of the first decision-maker. On the other, a second decision is not inconsistent with the first if it is decided on the basis of new evidence and evidence from after the decision is always allowed.
Explaining the reasons for not presenting evidence of the mental health condition to the first decision-maker would be important in these circumstances. If the mental health condition had worsened, for example, avoiding the expense of an initial psychiatric assessment might be a “very good reason” for not presenting the evidence to the first decision-maker. A judge would decide.
If you are in the position of not yet having made your first ADR application, it is vital to present all of the relevant evidence before a judge on the first occasion. Failure to do so may cause evidence presented on future applications and appeals to be treated with suspicion and negatively impact your credibility.
Another reason for not presenting evidence might be that you represented yourself without legal advice or representation. While this factor may be relevant, it is certainly not determinative. It will matter why legal advice or representation was not obtained. Applicants are not as a general rule entitled to a free test run at the immigration application process on their own before mustering a second attempt with legal support.
Contact our Immigration Barristers
For expert advice and assistance on making Adult Dependent Relative visa applications and challenging Adult Dependent Relative visa refusals, contact our immigration barristers on 0203 617 9173 or complete our enquiry form below.
