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The adult dependent relative (ADR) is an application route to bring dependant family members to the UK. The immigration policy since July 2012 have changed drastically.
The policy intention behind the ADR Rules is, firstly, to reduce the burden on the taxpayer for the provision of NHS and local authority social care services to ADRs whose needs can reasonably and adequately be met in their home country; and, secondly, to ensure that those ADRs whose needs can only be reasonably and adequately met in the UK are granted immediate settled status (where their sponsor has this or is a British Citizen) and full access to the NHS and local authority social care services.
This is intended to avoid creating a disparity between ADRs depending on their wealth and that of their sponsor, and to give those ADRs who qualify certainty about their long-term status in the UK.
The application must establish that the applicant has no access to the required level of care in the country where they are living, even with the practical and financial help of the sponsor in the UK. This could be because it is not available and there is no person in that country who can reasonably provide it, or because it is not affordable.
The “required level of care” is a matter to be objectively assessed, with reference to the specific needs of the applicant. The level of long-term personal care must be what is required by the individual applicant to perform everyday tasks, in light of their physical needs and any emotional or psychological needs, in each case as
established by evidence provided by a doctor or other health professional.
In considering whether the care is available in the country in which the applicant is living, the ECO will consider both what care is available, and whether it is realistically accessible to the applicant. As to the latter, consideration should be given both to the geographical location and the cost of such care. The evidence required to establish this is set out below. If the required level of care is available or affordable in the country where the applicant is living, the application should be refused.
The concept of whether another person can “reasonably” provide care may require consideration of such matters as the location of that person, their own circumstances and other commitments, and their willingness to provide such care. The fact that a person or organisation has been providing care for a period may suggest that they can continue to do so: however, if evidence is provided as to the temporary nature of such care, or as to a change in circumstances, this must be carefully considered.
Article 8 protects the right to respect for private and family life. However, the “family life” element of Article 8 is not normally engaged by the relationship between adult family members who are not partners. Neither blood ties nor the bonds of concern and affection that ordinarily go with them are, by themselves or together, enough to constitute family life for the purposes of Article 8.
Accordingly, in order to establish that family life exists between adults who are not partners, there must be something more than such normal emotional ties. Whether such family life exists will depend on all of the facts of the case. Relevant factors will include the age, health and vulnerability of the applicant, the closeness and previous history of the family, the applicant’s dependence on the financial and emotional support of the family, and the
prevailing cultural tradition and conditions in the country where the applicant lives.
Under paragraph GEN.3.2., where an application for entry clearance or leave to enter or remain under Appendix FM does not otherwise meet the requirements of that Appendix or of Part 9 of the Rules, the decision-maker must go on to consider, on the basis of the information provided by the applicant, whether there are exceptional circumstances which would render refusal a breach of Article 8. A breach will arise if such refusal would result in unjustifiably harsh consequences for the applicant, their partner, a relevant child or another family member whose Article
8 rights it is evident from that information would be affected by a decision to refuse the application.
“Exceptional circumstances” means circumstances which would render refusal of the application a breach of Article 8, because it would result in unjustifiably harsh consequences for the applicant, their partner, a relevant child or another family member whose Article 8 rights it is evident from the application would be affected.
“Exceptional” does not mean “unusual” or “unique”. Whilst all cases are to some extent unique, those unique factors do not generally render them exceptional. For example, a case is not exceptional just because the criteria set out in the Immigration Rules have been missed by a small margin.
Instead, “exceptional” means circumstances in which refusal of the application would result in unjustifiably harsh consequences for the individual or their family such that refusal would not be proportionate under Article 8.
“Unjustifiably harsh consequences” are ones which involve a harsh outcome(s) for the applicant or their family which is not justified by the public interest, including in maintaining effective immigration controls, preventing burdens on the taxpayer, promoting integration and protecting the public and the rights and freedoms of others.
This involves consideration of whether refusal would be proportionate, taking into account all the facts of the case and, as a primary consideration, the best interests of any relevant child. The case-law makes clear that where the applicant does not meet the requirements of the Rules, and has established their family life in “precarious”
circumstances (e.g. when they have limited leave to enter or remain in the UK), something “very compelling” is required to outweigh the public interest in refusal.
Likewise, where family life is formed or exists with a person outside the UK who has no right to enter the UK and does not meet the requirements of the Rules for entry clearance, Article 8 does not require that they be granted entry, in the absence of such exceptional circumstances.