How to Appeal an Adult Dependent Relative Visa Refusal
The Adult Dependent Relative visa is a visa category designed for British people, settled people or those with refugee leave, humanitarian protection status, or limited leave under Appendix EU to bring family members in need of care to the UK. At Richmond Chambers we frequently get calls from people seeking to bring their elderly, ill, or disabled family members to the UK.
However, the reality is that there is a high rate of refusals even in situations where the application is well prepared. When applying for the ADR visa you must be prepared for the possibility that your initial application may be refused and you will have to appeal the decision, if you still want to come to the UK. This article will provide some information about the appeal process.
Why Was My Adult Dependent Relative Visa Refused?
The Immigration Rules state that to fulfil the requirements of an Adult Dependent Relative visa the Applicant must show:
The applicant or, if the applicant and their partner are the sponsor’s parents or grandparents, the applicant’s partner, must be unable, even with the practical and financial help of the sponsor, to obtain the required level of care in the country where they are living, because-
(a) it is not available and there is no person in that country who can reasonably provide it; or
(b) it is not affordable.
This is a very high bar to clear. The Home Office guidance states that care can be provided in the Applicant’s country of residence by:
[a] son, daughter, brother, sister, parent, grandchild, grandparent, a wider family member, friend or neighbour, or another person who can reasonably provide the care required, for example a home-help, housekeeper, nurse, carer or care or nursing home.
Therefore, the Applicant must show that none of these options are available or affordable in their country of residence. One of the most common reasons for refusal is that the entry clearance officer is not satisfied that the care required by the Applicant is not available in their country of residence.
However, it is possible to have your application rejected for other reasons. For example, the Entry Clearance Officer may not be satisfied that you require long term care to perform everyday tasks. Or they may not be satisfied that your Sponsor (your relative in the UK) has the financial means available to maintain you in the UK without recourse to public funds.
It is important to read your letter of refusal carefully to identify the reasons for your refusal.
How Do I Appeal the Decision to Refuse My Adult Dependent Relative Visa Application?
The good news is that it is possible to appeal the decision to refuse your Adult Dependent Relative visa application. To do so you must lodge an appeal at the First tier Tribunal within 28 days from the date you receive the refusal. It is advised that you seek legal representation if you decide to appeal.
In this process you will be called the Appellant and the Entry Clearance Officer will be known as the Respondent.
The Tribunal will direct the Respondent to serve the bundle on which they will rely for the appeal. The bundle usually includes the refusal letter, application form, and sometimes parts of the evidence submitted with the application.
Next you and your legal representatives will be directed to serve your appeal bundle and appeal skeleton argument. The skeleton argument is a document in which your legal representative sets out the issues and arguments relevant in your appeal. Your bundle will usually include all the evidence you submitted with your application and any new evidence you want the judge to consider.
Then the Tribunal will direct the Respondent to review your case. At this stage the Respondent may decide to withdraw their initial decision with a view to granting you entry clearance on the Adult Dependent Relative visa. However, they may decide to maintain their decision, in which case your case will go to hearing.
Please note that it may be difficult for you to give evidence at the hearing from outside the UK. Your Sponsor and any witnesses you have in the UK may give evidence by answering questions from your legal representatives, the judge and the Home Office Presenting Officer (the Respondent’s representative at the hearing). The witnesses may also adopt any witness statements they made in support of your application.
After the hearing the judge will make the decision whether to allow or dismiss your appeal. If your appeal is dismissed you may in some circumstances apply for permission to appeal to the Upper Tribunal. If your appeal is allowed the Respondent has 28 days from the date of the judge’s decision to appeal. If your appeal is dismissed you likewise have 28 days from the date of the judge’s decision to appeal.
What New Evidence Can I Include in My Adult Dependent Relative Visa Appeal?
In the appeal you are required to show that the Entry Clearance Officer’s decision to refuse your application is a breach of human rights. Technically, it must be demonstrated that the refusal breaches section 6 of the Human Rights Act 1998, which states that all public authorities and government departments must act in accordance with human rights, and that the refusal engages Article 8 of the European Convention on Human Rights which protects your right to respect for your private and family life.
In layman’s terms, the appeal is an opportunity to argue against the reasons given in the refusal letter.
For example, if the ECO was not satisfied that there is no care available in your country of residence it may be useful to include objective evidence such as newspaper articles or NGO reports giving information about the situation in your home country. If the ECO is not satisfied that you require long term care to perform everyday tasks it may be useful to include further medical reports.
It is also useful to provide updating information such as new medical reports to show the development of any illnesses or other health issues, or updated financial evidence from your Sponsor to show that they can still maintain you in the UK without recourse to public funds.
This is very dependent on the circumstances of your individual case, so it is advised that you seek legal advice at this stage.
What if My Adult Dependent Relative Appeal to the First Tier Tribunal Is Dismissed?
If your appeal is dismissed you may lodge an appeal to the Upper Tribunal within 28 days of the decision of the First tier Tribunal judge. However, you can only appeal to the Upper Tribunal if the First tier Tribunal judge has made an error of law.
If your appeal is allowed there are several possible outcomes. The Upper Tribunal may set aside the First tier Tribunal’s decision and remake it itself with or without a resumed hearing or it may send the case back to the First tier Tribunal for a new hearing.
Does the ADR Visa Refusal Affect My Ability to Travel to the UK on a Visit Visa?
If your Adult Dependent Relative visa is refused this does not preclude you from applying for a visit visa or from attempting to enter the UK with leave as a visitor at the border, if you are a non-visa national. However, the refusal may have an impact because your intentions as a genuine visitor may be questioned.
This is because to be a genuine visitor the Immigration rules require that you intend to leave the UK at the end of your visit. A previous refusal of an ADR application may cast doubt on your intention to leave the UK at the end of your visit, as ADR applications lead to indefinite leave to enter and therefore involve an intention to move permanently to the UK.
However, you can provide evidence that you do intend to leave at the end of your stay with your visit visa application. This is evidence of your ties to your country of residence, such as other family members who live there, any property or sources of income. If you are a non-visa national you may travel with a return ticket and you could get a comfort letter from a legal representative.
Contact Our Immigration Barristers
For expert advice and assistance in relation to a Adult Dependent Relative visa application or appeal contact our immigration barristers in London on 0203 617 9173 or via the enquiry form below.