Tel: 0116 28 34567 | Fax: 0116 25 52363

Tel: 0116 28 34567 | Fax: 0116 25 52363

We are all aware that in the past we could be law abiding citizens, migrating to the UK, working as doctors, engineers, other respected professionals which included earning a good old hard earned income, and yet we would never forget our obligations to our parents back ‘home’ and we would continue to financially support them by sending funds to them on a regular basis.

Perhaps we even moved here to the UK thinking that once we would be settled, had a stable income and a ‘home’ that we could then apply for our parents to come to the UK as our dependents given that they are our parents and are financially dependent upon us.

We are all aware in the past as to how this situation worked and many elderly parents were granted a right to enter the UK to reside with their hard working children.

It is fair to say that this rule has now been ‘turned on its head’ by the change since rules in 09 July 2012.

It is no longer enough that one’s parents are financially dependent upon them but they now must also demonstrate that the parents require a level of long-term personal care which the parents are unable to receive in their home country, either due to cost or lack of availability. One must also demonstrate that the parents require specifically that child i.e. the proposed Sponsor to provide that care and there is no other person in their home country that is able to provide them with that care that is needed, including paying for a paid carer to assist in meeting their needs.

It is fair to say that this new requirement makes it virtually impossible for one’s parents, grandparents or other adult dependent relatives to join their family in the UK.

The new requirements specifically state that:-

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

  1. It is not available and there is no person in that country who can reasonably provide; or
  2. It is not affordable”

One may ask what evidence is required in order to be able to meet these very stringent and almost impossible requirements.

There are also new mandatory evidential requirements set out within Appendix FM.

For example one needs to prove the relationship through documents such as birth certificates. With regards to the illness/disability and requirement for long term personal care one is expected to provide independent medical evidence that the person’s physical or mental condition means that they cannot perform everyday tasks; and the report must be from a doctor or other health professional.

With regards to the requirement to demonstrate that the required level of care cannot be obtained in the home country, they are expected to provide evidence from a central or local health authority, doctor or other health professional.

One must note that if an application is made without the specified evidence, the application will be refused and any appeal against that decision may fail for exactly the same reasons and thus it is very important to be able to assess the merits and if proceeding with such an application to ensure that the correct evidence is submitted.

We have often been asked by Sponsors and Applicants as to what amounts to ‘personal care’. We have explained this as requiring assistance with everyday tasks such as washing, cleaning, bathing, cooking, administering medication etc.

It is useful to look at the Home Office policy guidance in this regard as it sets out examples as to when it would and would not be accepted that support is required with personal care.

As a firm, we have had success in such cases where for example the elderly dependent relative is suffering from emotional and mental health issues and has a particular compelling emotional attachment to the child/Sponsor in the UK as it has helped in demonstrating that it is only that child/sponsor that is able to provide that care due to that very emotional attachment. Therefore we have always found it useful to obtain counselling/psychiatric/psychological reports addressing the mental health situation of the dependent relative seeking to enter the UK. This also helps to strengthen any Human Rights arguments to be raised.

We have often been asked to comment upon the impact of the new rules upon dependent relatives. The impact that we have seen is to ‘permanently’ separate elderly dependent relatives from their children. What we have also seen is that settled persons in the UK, paying their taxes and working very hard are then forced to leave the UK to go back ‘home’ to live with their elderly dependent relatives or to take them to another country with more ‘generous’ rule where they are able to reside as a family unit.

It is indeed sad as many settled persons have explained to us that they have never claimed a penny of UK benefits and have always paid their taxes and yet are being punished by being denied the right to have their parents live with them in the UK when in fact they have no intention for even their elderly dependent relatives to seek UK benefits or become a burden on the state.

The reality is that very careful consideration is required of the facts in each case. At Bushra Ali Solicitors we will spend time in going through the facts in order to assess family circumstances, medical issues, personal care needs and emotional bonds so that we can look at how we are able to build an argument to indeed argue that an elderly dependent relative should be permitted to join their settled child in the UK.

 

Bushra Ali