The adult dependent relative rules have been buried in Appendix FM since their inception on 9 July 2012. From 1 June 2023, they have been transposed into their own standalone Appendix Adult Dependent Relative.
The new appendix was announced in the 9 March 2023 Statement of Changes to the Immigration Rules HC1160. You can read about the rest of the statement of changes here. The adult dependent relative rules are the latest to be tackled in the Home Office’s rules appendicisation simplification journey. Simplification, however, does not mean reform.
Whilst the formatting and structure of the rules will change, there will not be any substantive changes to the rules themselves as part of the simplification process (you can read more about the rules here). So, I implore you not to raise your hopes about some kind of adult dependent relative rule reform; there will be no miracles here.
The crux of the adult dependent relative rule wording remains unchanged. What was previously set out under the heading of ‘Relationship Requirements’ at paragraphs E-ECDR.2.4 and E-ECDR.2.5 of Appendix FM, will now be set out under the more appropriate heading of ‘Dependency Requirements’:
Dependency requirements for an Adult Dependent Relative
ADR 5.1. The applicant must, as a result of age, illness or disability, require long-term personal care to perform everyday tasks.
ADR 5.2. If the applicant is the sponsor’s parent or grandparent, the applicant must not be in a subsisting relationship with a partner, unless that partner is also the sponsor’s parent or grandparent and is applying for entry clearance or permission to stay at the same time as the applicant.
ADR 5.3. Where the application is for entry clearance, the applicant must be unable to obtain the required level of care in the country where they are living, even with the financial help of the sponsor because either:
(a) the care is not available and there is no person in that country who can reasonably provide it: or
(b) the care is not affordable.
Same criteria, different presentation.
On a reading of the current, unsimplified, rules, you would be forgiven for missing the financial requirements; paragraph E-ECDR.3.1 simply refers to adequate maintenance, accommodation, and care, without any further reference to evidential requirements, let alone a numerical value for adequacy.
One must then, somehow, know to visit Appendix FM-SE to establish what evidence is needed to prove adequate maintenance and accommodation, though an actual definition of how to calculate “adequate” remains much more elusive.
In the new rules, the relevant financial evidence periods and paragraphs of Appendix FM-SE are at least specifically referenced, so that a reader will know where to look:
ADR 6.1. The sponsor must be able to provide adequate maintenance, accommodation and care for the applicant in the UK without access to public funds.
ADR. 6.2. The sponsor must provide evidence of income or cash savings sufficient to show they can meet the financial requirement and:
(a) evidence from income (other than self-employment) or savings must cover the 6 month period immediately before the date of application; or
(b) where the sponsor is receiving maternity, paternity, adoption or sick pay, their income from salaried employment can be shown for either the 6 months immediately before the date of application or the start date of the maternity, paternity, adoption or sick leave; or
(c) where the income is from self-employment it must be shown for the last full financial year before the date of application, with additional evidence of ongoing employment as in paragraphs 7 or 9 (as relevant) of Appendix FM-SE; or
(d) where there is non-employment income it must be shown to have been received in the 12 months before the date of application except where specified in paragraph 10 of Appendix FM-SE; or
(e) where property has been sold and the money received has been converted into cash savings the requirements in paragraph 11A(d) of Appendix FM-SE must be met.
ADR 6.3. The income or cash savings must be evidenced as specified in paragraphs 1, 12A and 12B of Appendix FM-SE.
ADR 6.4. The sponsor must provide a signed maintenance undertaking confirming that the applicant will not have access to public funds, and that the sponsor will be responsible for the maintenance, accommodation and care of the applicant for either:
(a) a period of 5 years from the date the applicant arrives in the UK if the applicant is to be granted settlement; or
(b) the duration of the period of permission to be granted if the applicant is being granted temporary permission to stay. ADR 6.5. If the applicant receives public funds during the period covered by the maintenance undertaking (see ADR 6.4.) the UK Government may seek to recover the public funds from the sponsor who gave the undertaking.
Unfortunately, if you want a definition of ‘adequate maintenance, accommodation and care’, it’s still buried in the interpretation section of the Immigration Rules:
“Adequate” and “adequately” in relation to a maintenance and accommodation requirement means that, after income tax, national insurance contributions and housing costs have been deducted, there must be available to the person or family the level of income or funds that would be available to them if the person or family was in receipt of income support.
This has not been scooped up in the simplification exercise and one must still read the definition alongside the additional information about costs of proposed care for adult dependent relatives contained in the policy document titled ‘Family Migration: Appendix FM Section 1.7A – Adequate maintenance and accommodation’.
To calculate the amount of income support an equivalent British family can receive, the policy document links to an external website called Rightsnet. Anyone unfamiliar with the benefits system may be somewhat confused if they look up income support on the Gov.uk website to find that income support has been replaced by universal credit.
Post-simplification, this aspect of the rules remains disappointingly opaque.
Dragged out of ‘Section GEN: General’ comes an explicit incorporation of the “unjustifiably harsh consequences for the applicant or their family” characterisation of article 8 as a secondary consideration for caseworkers who will otherwise be refusing an application. This consideration is already applied in the current set of rules, by virtue of GEN.3.2, however the new appendix layout thankfully places the fall-back article 8 consideration sequentially after consideration of the other requirements; a much more logical and visible place. This article 8 consideration is nothing new, and I wouldn’t get too excited about it being applied in cases that don’t otherwise meet the rules.
Potential policy regression for partners
With thanks for spotting this to Zoe Bantleman, Legal Director at the Immigration Law Practitioners’ Association (ILPA), the wording relating to partners of Adult Dependent Relative applicants in the new set of rules has changed.
The old set of rules is relatively clear at E-ECDR.2.4.-2.5 that only one partner/spouse in an eligible relationship needs to meet the substantive Adult Dependent Relative eligibility criteria:
E-ECDR.2.4. The applicant or, if the applicant and their partner are the sponsor’s parents or grandparents, the applicant’s partner, must as a result of age, illness or disability require long-term personal care to perform everyday tasks.
E-ECDR.2.5. The applicant or, if the applicant and their partner are the sponsor’s parents or grandparents, the applicant’s partner, 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-
(a) it is not available and there is no person in that country who can reasonably provide it; or
(b) it is not affordable.
The new set of rules at ADR 5.1-5.3 quietly seem to have dropped the highlighted text. The implication of this is that now each partner/spouse will have to meet the substantive eligibility criteria. This is at odds with current policy, which is confirmed in one of the example scenarios given at page 15 of the current version of policy guidance (version 3.0 published 24 January 2022).
ILPA has already raised this with the Home Office and it appears to be an unintentional drafting error. There was no intentional policy change, and therefore consideration will now have to be given to whether amendment to the rules or clarification by guidance will be required later this year. Until we receive clarification, this does leave us in a dilemma insofar as healthy partners of main applicants are concerned.
Is anything else going to be different in practice?
Aside from the potential consequences of the drafting error identified by Zoe, I don’t anticipate there being anything else substantively different in practice. I do think the new set of rules is much easier to follow than the old. The absence of a self-contained definition of adequate maintenance and accommodation remains a missed opportunity.