- BY Free Movement
Other dependent relatives
THANKS FOR READING
Older content is locked
A great deal of time and effort goes into producing the information on Free Movement, become a member of Free Movement to get unlimited access to all articles, and much, much more
TAKE FREE MOVEMENT FURTHER
By becoming a member of Free Movement, you not only support the hard-work that goes into maintaining the website, but get access to premium features;
- Single login for personal use
- FREE downloads of Free Movement ebooks
- Access to all Free Movement blog content
- Access to all our online training materials
- Access to our busy forums
- Downloadable CPD certificates
A rare judgment on paragraph 317 of the Immigration Rules, the ‘other dependent relatives’ category, was handed down by the Court of Appeal last month and has so far escaped reporting here on Free Movement due to other commitments. The case is Mohamed v Secretary of State for the Home Department [2012] EWCA Civ 331.
Giving the judgment of the court, Sir Stephen Sedley (as he is now referred to since retiring as a full time judge) started by setting out the issue to be decided:
This appeal raises a question of law which was identified by Sir Richard Buxton in his grant of permission to appeal: does rule 317(i)(e) cover a case in which the very financial dependency which qualifies a parent or grandparent for entry to the United Kingdom is also what keeps their circumstances from being “the most exceptional compassionate circumstances”?
The relevant rule, 317(i)(e), reads as follows:
(e) a parent or grandparent under the age of 65 if living alone outside the United Kingdom in the most exceptional compassionate circumstances and mainly dependent financially on relatives settled in the United Kingdom
The argument, which was an interesting one, was whether the decision maker has to apply a ‘but for’ test in which but for the support provided the applicant would be living in the most exceptional circumstances or a ‘notwithstanding’ test whereby notwithstanding the support provided the applicant is nevertheless still living in the most exceptional compassionate circumstances.
Sir Stephen prefers the latter of these possibilities as it requires a less convoluted reading of the rule and the test is still not so stringent that non-one can succeed. Applicants suffering from dementia or terminal illness might well be unable to cope even with financial support, for example.
This case, combined with Senanayake v Secretary of State for the Home Department [2005] EWCA Civ 1530 on the meaning of ‘compassionate circumstances’, makes clear that the hurdles facing an applicant under this rule are very considerable.
SHARE
3 responses
FM,
I personally have yet to know anybody under 65 (admittedly with only 3 years experience in this area of law) whether an applicant or practitioner who has been granted entry clearance or who knows anybody that has been granted entry clearance downright under paragraph 317 without having to use Article 8.
It seems to be an impossible requirement and the nature of the Rule is almost non-sensical and focuses too much on material considerations (poverty/living conditions and medical health rather than emotional factors).
The dilemma is that one cannot be living in conditions so extreme/poor if he is wholly or partially dependant on the sponsor in the UK (which is separate limb of the Rule). Yet, the case-law is clear that, when gauging the most exceptional compassionate circumstances, the matter cannot be considered as if the sponsor’s financial provision does not exist.
So, what is one to do? Withdraw financial assistance so as to put the applicant cruelly in the most exceptional compassionate circumstances? That will not work because the applicant will then not be deemed to be financially dependant on the sponsor in the UK.
Provide financial assistance and suddenly, the applicant is said to be living handsomely so as to not be in the most exceptional compassionate circumstances (in addition to the fact that dependency could then also be said to have been contrived or not be of necessity if withdrawn and reinstated at will).
It’s a ‘no-win’ situation. You simply go round in circles with this Rule.
I’m the same as you – in what is now 12 years of practice I can’t think of a single successful under 65 case. I’ve come across scenarios that might have succeeded and can think of situations that could in theory satisfy the rule, but they are all very extreme in nature. The fault in the rule is that the words ‘most’ and ‘exceptional’ remove the compassion from the application of the rule.
This is actually my friend Mr Kadri QC’s case. While I was just in Karachi he dropped by unexpectedly with his wife Carita and we had a very interesting meeting over tea. Even more interestingly Mr Kadri is doing a removal case in which Article 9 is engaged and the removee (to France) is a wearer of a naqab ….