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Successful Visa Application and Appeal Challenges under Adult Dependant Rules

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Are you separated from a loved one? Do you want to help your parents or other dependant adult relatives join you in the UK? At OTS Solicitors our Immigration department provides highly specialised advice on overcoming the challenges many families face for their dependant relative to be granted entry clearance to the UK.

Technically known as an application under EC-DR (“Entry clearance as an adult dependent relative”), changes in the Immigration Rules in 2012, have meant you or your relative may have been unlawfully refused an Adult Dependant visa to enter the UK. Our team of highly experienced and recommended London immigration solicitors will provide the advice and representation clients need to succeed in appealing, administratively reviewing or submitting a fresh application for their relative to join them in the UK.

Along with the governments extensive amendments to the Immigration Rules in June 2012 further provisions were added to the requirements for granting entry clearance to Adult Dependant Relatives. Our family immigration department has noticed that entry clearance under this route is being refused for applicants routinely by entry clearance officers from several British Embassies and Consulates or visa processing centres around the world. It is clear that many of the applicants refused meet the requirements of the new Immigration rules, however, they are being refuse if the UK settled family relatives can afford to pay for a carer overseas despite the fact that there is a good reason for care to be provided in the UK.

However in the case of Osman v ECO [OA/18244/2012], Senior Immigration Judge Craig sitting at the Immigration and Asylum Chamber Upper Tribunal in November 2013 handed down a determination which provides helpful guidance that the Home Office and Entry Clearance Officers have been acting unlawfully in their approach to deciding Adult Dependant Relative visa applications.

The case of ‘Osman’ considers the interpretation of the amended Immigration Rules under appendix FM, section EC-DR, and more specifically considers the provisions E-ECDR 2.4 and 2.5 that are not defined in the rules:

• “2.4 -

The applicant… must as a result of age, illness or disability require long-term personal care to perform everyday tasks.

• “2.5 -

The applicant… 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 either 1) it is not available and there is no person in that country who could reasonably provide it, or 2) it is not affordable.

SIJ Grubb made certain very crucial error of law findings in his determination establishing the following 7 principles:

1. Long Terms Personal Care

• Para 28 - ‘the appellant must establish that he or she requires “long-term personal care to perform everyday tasks’.

2. As a result of Age, Illness or Disability

• Para 29 - ‘that need must arise as a result of “age, illness or disability”, and consequently; even if the need for the personal care is established, if it does not arise from one or more of the three stated conditions of the individual, then the requirements of the Rule are not met’.

3. Care provided is “personal”

• Para 30 - ‘The reference to “personal care” is to be distinguished from “medical” or “nursing” care and would appear to mean that the care that has to be provided is personal rather support provided by mechanical aids or medication. The need is for “personal” care, in other words, care provided by another person. The “personal care” must be required “long-term” rather than on a temporary or transitional basis. And, further, the provision of care must be necessary in order that an individual may perform “everyday tasks”’.

4. Wider meaning of “everyday tasks”

• Para 31 - ‘The relevant IDI (dated 13 December 2012) at para 2.2.1 gives by way of example of “everyday tasks” that an individual is incapable of “washing, dressing and cooking”. Those are obviously aspects of an individual’s life properly described as “everyday tasks” but that phrase has a wider meaning which would include, example, the management of an individual’s bodily functions, difficulties with mobility and communication. Other activities of daily living will also be included within the phrase “everyday tasks”.

5. Rule E-ECDR 2.5 not met unless “long-term personal care” not available

• Para 32 - ‘Thirdly, E-ECDR 2.5 requires an individual to establish that the “required level of care in the country where they are living” cannot be obtained even with the practical and financial help of the sponsor because either it is not available or there is no person in that country who could reasonably provide it or it is not affordable. Consequently, if the sponsor can provide a relative with the finances which will deliver the “required level of care” in the relative’s own country then the requirements of the Rule will not be met unless the “long-term personal care” is not available and no one in the individual’s country can reasonably provide it.

6. “required level of care” requires a particular type of carer

• Para 33 - ‘This latter requirement undoubtedly imposes a significant burden of proof upon an individual to show that the required level of care is not available and no one can reasonably provide it in the individual’s country. An example where that latter requirement might well be satisfied would be where the “required level of care” needed requires a particular type of carer, for example a close family member, none of whom live in the individual’s country. The evidence would have to establish, in such a case, the need for a particular type of carer such as a family member and not simply that the individual required personal care from someone. In many circumstances, the “required level of care” to perform such everyday tasks as cooking, washing, and to assist mobility are likely to be capable of being performed not just by family members who do not live in that individual’s country. But, it is equally possible to contemplate, having regard to cultural factors, that needed “personal care” involving intimate or bodily contact may require a gender-specific carer from the individual’s family. What is the “required level of care” and who may appropriately provide it will depend upon the circumstances and the evidence in any given case’.

SIJ Grubb found the First Tier Tribunal Judge to be wrong for refusing on the basis that the adult dependant relatives care needs were met by a carer. He found two flaws with this finding:

Para 39 - ‘First, the Judge appears to have concluded that whatever the needs of the appellant, the carer met them. However, in para 20 of his report Dr Nelki concluded that the appellant’s physical and emotional state would almost certainly be helped enormously if she was able to get “out and about” lovingly cared for by someone whom she knows’.

Para 40 - ‘In my judgment, “everyday tasks” includes mobility and, as a matter of common sense, to include the ability to leave one’s home and interact with the world outside engaging in everyday living activities. In my judgment, the Judge failed to take this into account when he found that the appellant’s needs were, in effect, provided for by the carer of the appellant’s mother from the local Somali community. As a result, that finding cannot stand’.

SIJ Grub went on to conclude that due to the link between the appellant’s mental health and physical needs to carry out everyday tasks, and were not confined to the house but also to being outside which at para 48 he confirms these could only be provided for her by her family in the UK, he backs up his conclusion by stating:

1. Para 51 - ‘suffering from schizophrenia and, in all likelihood, bipolar disorder. I accept that her conditions require that she, despite the medication, needs “long-term personal care” in order for her to perform everyday tasks such as cooking, washing and results in severe mobility difficulties because of her physical condition which results in considerable pain’.

2. Para 52 - ‘the appellant’s physical and mental condition (in particular her mental illness) has resulted in her being “trapped” or “imprisoned” in her home which she does not leave. That debilitating feature of the appellant’s daily life is the direct result, I accept on the basis of Dr Nelki’s report, of her mental illness and the absence of the care of a close family member. It is, as I have stated above, part of the appellant’s “everyday tasks” to be able to leave her home and engage with the world outside. To do that, in my judgment, the appellant requires “long-term personal care” which can only (if her needs are to be fully met) be provided in an environment where she is supported by a close family member such as her son. The “personal care” provided by her carer at the date of decision did not, plainly, fully meet those needs in order for the appellant to be able to perform “everyday tasks” because she remained “trapped” or “imprisoned” in her home’; and

3. Para 53 - ‘Even if there was another person in Saudi Arabia who could provide the same support as her current carer, that person would not be able to provide the “required level of care” to meet the appellant’s need to perform the everyday tasks as I have described above which can only be fully provided by a close family member. Any replacement would, of course, likely be a stranger to the appellant’

The decision in this case does not seem to have been appealed by the Entry Clearance Officer, and the opinion and principles set out by the Senior Immigration Judge in this case will be persuasive in other adult dependant relative cases. There is likely to be further developments in these cases, as the rules for adult dependants will need to be further considered no doubt with the Home Office’s new April 2015 policy on appeal rights for Human Rights claims.

If you or your family member has unfortunately received a refusal decision on an Adult Dependant application, or if you are in the process of making a visa application as an adult dependant, we strongly recommended that you contact one of our Immigration solicitors to advise you on prospects of success of your application or for submitting an appeal.

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