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Adult dependent relatives: still shut out?


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In Ribeli v Entry Clearance Officer, Pretoria [2018] EWCA Civ 611, the Court of Appeal reaffirmed the “rigorous and demanding” nature of the adult dependent relative rules, following the judgment in BRITCITS v Secretary of State for the Home Department [2017] EWCA Civ 368. Proving that you have an emotional and psychological need for care from a relative in a different country from your own is going to be an uphill struggle in most cases.

Full commentary on the ADR rules can be found in this earlier blog post: Out with the old…

In BRITCITS, applicants were given hope that there would be more room for manoeuvre in the interpretation of the Rules. See the Master of the Roll’s comments at paragraph 59:

The focus is on whether the care required by the ADR applicant can be “reasonably” provided and to “the required level” in their home country. … the provision of care in the home country must be reasonable both from the perspective of the provider and the perspective of the applicant, and the standard of such care must be what is required for that particular applicant.

He went on:

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.

In other words, in deciding whether the care cannot be “reasonably” provided such that it is either unavailable or unaffordable — the test contained in paragraph E-ECDR.2.5 of the Immigration Rules — the decision-maker should be looking at, for instance, how far and how difficult it will be for the applicant to travel to access care, and whether they have an emotional or psychological need for a specific type of care.

It was in this context that the present appeal was brought, presumably in the hope that these considerations could help Ms Ribeli to succeed in meeting the Rules.

No evidence that South Africa too dangerous for carers to operate in

Ms Ribeli is a South African national who suffers from serious medical conditions including a chronic degenerative back disease, osteoarthirits and fibromyalgia. Her sponsor and daughter, Carmen Steenkamp, is a British citizen, and has lived in the UK since 2007.

Ms Ribeli’s application to join her daughter in the UK under the ADR rules was refused by the Entry Clearance Officer as she did not prove that she could not access the necessary care in South Africa. The evidence put forward was insufficient.

Ms Ribeli’s appeal to the First-tier Tribunal was successful. The judge found, in particular:

  • South Africa is a dangerous country with a high crime rate and so carers coming to Ms Ribeli’s home would not be reasonable as they may be “untrustworthy”.
  • Ms Ribeli could not reasonably be expected to go to a care home which would be an “expensive secure compound”.

Upper Tribunal Judge Lane (as he was then) set this determination aside, in particular because:

  • The original judge had speculated that Ms Ribeli could not obtain reliable care because of the high crime rate. There was no independent evidence to support this.
  • The evidence about availability of care homes was limited to the Table View area of Cape Town, so the judge was not entitled to find that Ms Ribeli would not have a reasonable level of care in the whole of South Africa.

He then refused the appeal on the basis that was no sufficient evidence on the facts of the case to show that care was unavailable or unaffordable.

No care available in the whole of South Africa

The Court of Appeal agreed that it had not been demonstrated that there was no care available to Ms Ribeli in the whole of South Africa. The evidence was restricted to a certain area in Cape Town, and it was held that this was not enough.

Clearly, evidence in these cases will need to continue to be carefully focussed on the accessibility and geographical location of the care so as to try to satisfy this demanding test.

Emotional needs and family members

Ms Ribeli complained that the judge had not taken the medical evidence on her emotional needs into consideration at all. In her GP’s opinion:

she would only be able to obtain the level of care she requires for an adequate quality of life from a close family member. The support she requires is not only physical but also emotional and given her level of pain, I believe that this would not be achieved by a nursing home or hired help.

Because any failure to meet Ms Ribeli’s emotional needs was directly linked to a possible deterioration of her physical health, the judge did not consider the reasonableness of the care provision in light of her emotional needs on their own.

Only the provision of care for her physical health was considered when applying the Rules.

Her mental health problems (mild depression and anxiety) were held not to be serious enough on their own to show that the care would not at be provided to her at a  reasonable standard.

Clearly, however, if it can be shown that someone’s physical or mental health may worsen as a result of unmet emotional needs, there appears to be no clear reason why this should not be taken into account when deciding whether it is reasonable for a third party to provide a relative with care, as opposed to their own family member.

For example, it has been recognised in a different context that someone’s emotional needs can require care to be provided by one person, who may be “irreplaceable in the broader, more nuanced and emotional sense”.

Private life not enough

It was also held that refusing Ms Ribeli’s application would not cause the UK to be in breach of Article 8 ECHR. Family life between two adults must be shown to go beyond “normal emotional ties” for Article 8 to be engaged. In any event, the interference with any family life in this case was proportionate because no sufficiently compelling reason had been provided for why Ms Steenkamp would be unable to return to South Africa to care for her mother: she had chosen to remain in the UK due to her private life.

The appeal, accordingly, was dismissed.

This case reminds us of the exacting and unrealistic standards of the ADR rules and required evidence. It will be a rare applicant who will be able to obtain sufficiently compelling independent evidence of an emotional need for their relative to care for them outside of their home country, and to prove that there are no care homes or carers in the whole of their country who can give them a reasonable standard of care.

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Sophie Caseley

Sophie is a barrister practising in immigration and asylum law at Garden Court Chambers.