Yesterday the Court of Appeal handed down judgment on our Adult
Dependant Relative case. These relate to rules for British citizens,
residents and refugees to sponsor, as it says on the tin, an adult
dependant relative. Historically, ADR have for the most part been
parents. The rules pre 9th July 2012 allowed for sponsorship of those
ADR who were aged 65 or over and were financially dependent on the
sponsor, unless there were exceptionally compassionate circumstances, in
which case younger ADR move to the UK too. The sponsor was required to
evidence they could afford to look after their ADR without recourse to
public funds. Fair enough.
However, as Home Secretary our favourite politician undertook a consultation. The questions nor the answers of which supported what she put in place - a ban masquerading as a rule, as parliamentarians have called these ADR rules. Why? Because meeting one part of the rules means not meeting another part of the rules.
The ADR must now be unable to dress or bathe themselves - so super elderly or severely disabled. TM does not want healthy ADR to come to UK. Yet she claims her reason for these rules is to protect the NHS. Completely nonsensical. She rejected requiring ADR to have private health insurance, or for sponsors to provide a financial guarantee that their ADR won't become a burden on the state. This is because the ever generous TM claims to not want to restrict family migration only to the rich. Yes, WTF is exactly what I nearly yelped out when the Home Office lawyer made this outrageous excuse on behalf of his client.
Additionally, even where say the ADR is so physically infirm that they can't bathe or dress themselves (in which case would they really be able to take a long-haul flight since remember TM doesn't want to restrict family migration to those who can afford private planes with full-time nursing staff), one must show there is no one in the home country who can reasonably provide care instead of the UK sponsor. This includes 1) other children and grandchildren 2) siblings or other family 3) neighbours 4) help - paid or unpaid, by sponsor, ADR or the government in the ADR's home country) 5) old people's homes.
And if the above are satisfied, then the sponsor must also evidence and sign an undertaking that they and the applicant together have the means to pay for the ADR's care, accommodation and maintenance in the UK without recourse to public funds, but those funds are not sufficient in the ADR's country. So you know, maybe if the ADR is from Monaco the rules could be met.
Oh and say your mother re-married and your stepfather raised you. Even if your mum miraculously satisfies all the criteria, she won't qualify because she is in a relationship with someone who is not your biological parent - even where he fulfilled all parental duties. This wasn't raised in court though I think it's an important point - not one that affects any cases I have come across though.
The word 'reasonable' is given a lot of weight by the judges, not quite comprehending despite our attempt to evidence as such, that Home Office does not process applications reasonably. The judges seemed more concerned about the situation where the ADR has a child in the home country who 'pretends' to be estranged from the ADR so that the ADR can be sponsored by the child in the UK. This is despite even the Home Office not claiming that the old rules were open to abuse. Sigh.
Much, so much, hinges on this misguided belief that family life is more likely to not be engaged, than engaged, between an adult child and their parents. It's unfreakingly bizarre and makes me wonder whether the judges are not close to their own parents, or their own adult children.
I am critical of the judgment. Obviously. But it's not a case of sour grapes. The judges took Home Office's claims as gospel. The figures on the cost of NHS and social care. Their stats on grants - their lawyer didn't even know whether the stats were just those within the rules or those outside of it. He had to go get this checked - while in court, despite countless attempts by us to get this info earlier, and we did get on record that we do not believe their figures.
The judges say at para 62 "...Guidance gives a number of example scenarios in which the SoS accepts that a dependant applicant can meet the criteria in the new ADR Rules." Untrue. The guidance actually gives examples which 'could' meet the criteria if they also meet other elements of the criteria - which is the entire problem. The criteria is contradictory. Have a read of the guidance yourself here. Bear particular attention to the Afghanistan example.
There is a (tiny) plus though. At para 59, the judges concede "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." This mention of emotional and psychological care should help some families as the guidance and the rules are actually silent on this.
I shouldn't be so disappointed because the judgment isn't a surprise. The hearing was tough. Court of Appeal is known for being less, um, 'friendly' than the High and Supreme Courts. We possibly didn't have ideal panel of judges, given the combination of Master of the Rolls, Lord Justice and Lord Sales. Actually given the judgment, we definitely didn't!
One of our barristers is going to write a note on the judgment so I will leave the legal analysis to him and share the note in due course.
So what's next? We have applied directly to the CoA for for permission to appeal further up. They however pretty much never cede this. We then have 28 days from judgment date to apply to the Supreme Court. Will we get permission? If so, can we afford to proceed? Only time will tell. If there is a change in government next month, then perhaps these are all moot points. Yes I know what the polls are saying but they've been wrong before. One can but hope. The experience of the courts in MM and now ADR suggests we may have to rely on politicians rather than courts to throw out rules intent on breaking up families and forcing Brits out of the UK. The fifth anniversary of the rules is coming up under a third government. It's time for a change.
You can read the entire approved ADR judgment here.
However, as Home Secretary our favourite politician undertook a consultation. The questions nor the answers of which supported what she put in place - a ban masquerading as a rule, as parliamentarians have called these ADR rules. Why? Because meeting one part of the rules means not meeting another part of the rules.
The ADR must now be unable to dress or bathe themselves - so super elderly or severely disabled. TM does not want healthy ADR to come to UK. Yet she claims her reason for these rules is to protect the NHS. Completely nonsensical. She rejected requiring ADR to have private health insurance, or for sponsors to provide a financial guarantee that their ADR won't become a burden on the state. This is because the ever generous TM claims to not want to restrict family migration only to the rich. Yes, WTF is exactly what I nearly yelped out when the Home Office lawyer made this outrageous excuse on behalf of his client.
Additionally, even where say the ADR is so physically infirm that they can't bathe or dress themselves (in which case would they really be able to take a long-haul flight since remember TM doesn't want to restrict family migration to those who can afford private planes with full-time nursing staff), one must show there is no one in the home country who can reasonably provide care instead of the UK sponsor. This includes 1) other children and grandchildren 2) siblings or other family 3) neighbours 4) help - paid or unpaid, by sponsor, ADR or the government in the ADR's home country) 5) old people's homes.
And if the above are satisfied, then the sponsor must also evidence and sign an undertaking that they and the applicant together have the means to pay for the ADR's care, accommodation and maintenance in the UK without recourse to public funds, but those funds are not sufficient in the ADR's country. So you know, maybe if the ADR is from Monaco the rules could be met.
Oh and say your mother re-married and your stepfather raised you. Even if your mum miraculously satisfies all the criteria, she won't qualify because she is in a relationship with someone who is not your biological parent - even where he fulfilled all parental duties. This wasn't raised in court though I think it's an important point - not one that affects any cases I have come across though.
The word 'reasonable' is given a lot of weight by the judges, not quite comprehending despite our attempt to evidence as such, that Home Office does not process applications reasonably. The judges seemed more concerned about the situation where the ADR has a child in the home country who 'pretends' to be estranged from the ADR so that the ADR can be sponsored by the child in the UK. This is despite even the Home Office not claiming that the old rules were open to abuse. Sigh.
Much, so much, hinges on this misguided belief that family life is more likely to not be engaged, than engaged, between an adult child and their parents. It's unfreakingly bizarre and makes me wonder whether the judges are not close to their own parents, or their own adult children.
I am critical of the judgment. Obviously. But it's not a case of sour grapes. The judges took Home Office's claims as gospel. The figures on the cost of NHS and social care. Their stats on grants - their lawyer didn't even know whether the stats were just those within the rules or those outside of it. He had to go get this checked - while in court, despite countless attempts by us to get this info earlier, and we did get on record that we do not believe their figures.
The judges say at para 62 "...Guidance gives a number of example scenarios in which the SoS accepts that a dependant applicant can meet the criteria in the new ADR Rules." Untrue. The guidance actually gives examples which 'could' meet the criteria if they also meet other elements of the criteria - which is the entire problem. The criteria is contradictory. Have a read of the guidance yourself here. Bear particular attention to the Afghanistan example.
There is a (tiny) plus though. At para 59, the judges concede "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." This mention of emotional and psychological care should help some families as the guidance and the rules are actually silent on this.
I shouldn't be so disappointed because the judgment isn't a surprise. The hearing was tough. Court of Appeal is known for being less, um, 'friendly' than the High and Supreme Courts. We possibly didn't have ideal panel of judges, given the combination of Master of the Rolls, Lord Justice and Lord Sales. Actually given the judgment, we definitely didn't!
One of our barristers is going to write a note on the judgment so I will leave the legal analysis to him and share the note in due course.
So what's next? We have applied directly to the CoA for for permission to appeal further up. They however pretty much never cede this. We then have 28 days from judgment date to apply to the Supreme Court. Will we get permission? If so, can we afford to proceed? Only time will tell. If there is a change in government next month, then perhaps these are all moot points. Yes I know what the polls are saying but they've been wrong before. One can but hope. The experience of the courts in MM and now ADR suggests we may have to rely on politicians rather than courts to throw out rules intent on breaking up families and forcing Brits out of the UK. The fifth anniversary of the rules is coming up under a third government. It's time for a change.
You can read the entire approved ADR judgment here.
Hi, please can you name the 3 judges? I take it the Master of the Rolls was Sir Terence Etherton, and Justice Sales is Philip Sales. Who is the third person, the Lord Justice you mentioned?
ReplyDeleteI am deeply disappointed. But let's not be disheartened. I think TM will be thrown out in the coming elections.
ReplyDeleteI have been practising immigration law for over 20 years and the Rules on ADR are barbaric. Since the Rule change in July 2012 I have successfully won two appeals but they were so difficult. The way the Rules are set up are done so that applicants fail. If an alien landed on earth and you explained the Rules to it they would be dumbfounded. Let's hope we get rid of the wicked witch of the east.
ReplyDeleteI think we will indeed do just that.....
ReplyDeleteWhy this qruelity on parents and famillys?
ReplyDeleteThis world seems to be coming to end.
"This includes 1) other children and grandchildren 2) siblings or other family 3) neighbours 4) help - paid or unpaid, by sponsor, ADR or the government in the ADR's home country) 5) old people's homes"
ReplyDeleteMy mom lives in South Asian country. I satisy first 2 criterias mentioned. But I am happy and eager to find someone to fulfil 3-5 criterias but can TM, Lord Justice, Lord Sales and Master of Rolls guarantee me that my mum will be taken care of as I would do for her if I leave my mom to neighbours, friends or old care homes mercy. Let's be honest to ourselves that what ground reality is like in South Asian countries. But if UK govt or HO or TM is willing to give me a guarantee then I'm more than happy to leave my mom to strangers to be taken care by.