Two recent Strasbourg cases on family life between adults

The European Court of Human Rights in Strasbourg handed down judgment in two separate cases in December addressing the subject of family life between adult family members outside the “core” nuclear family of spouses, partners, parents and minor children. The court confirms that “additional elements of dependence, involving more than normal emotional ties” are necessary to find a protected family life, which we already knew, but the facts and outcomes of the cases are nevertheless useful. There is also a helpful press release summarising both case available.

Case of Kumari

The first case was Kumari v the Netherlands (application no. 44051/20). This involved a mother aged 60 at the date of judgment who had three sons living in the Netherlands and a daughter living in India but on the other side of the country to her. Her original application, made in 2015 when she was 51, came after one of her sons had experienced a bereavement. She applied to remain in the Netherlands to support him and his wife. She later relied also on her deteriorating health and increasing dependency on her son.

The court held, essentially, that there was insufficient dependency between the mother and adult son. Financial dependency had not been established and in any event would be insufficient of itself. The son’s bereavement had not been so traumatic as to incapacitate him and his condition had improved over time. As for the mother, there were “no indications … that the applicant was unable to get by with the medical care in India and other forms of care, support and assistance as provided by her housekeeper neighbours and friends”. Further, it had not been “convincingly explained” that her daughter could not support her in India if needed.

In conclusion, the court held that:

“the applicant has not demonstrated that she was suffering from a physical or mental disability or illness of sufficient seriousness or that she was in need of constant care and support from [her son] in order to cope with her everyday life”

The first leg of the test in the United Kingdom’s immigration rules on adult dependent relatives is that the applicant “must as a result of age, illness or disability require long term personal care to perform everyday tasks.” That’s pretty close to the language of the court.

The next case addresses the second leg of the equivalent UK immigration rules.

Case of Alvarado

The second case was Martinez Alvarado v the Netherlands (application no. 4470/21). This involved an adult man with the mental functioning of an eight year old child. He was Peruvian and one of six children. His four sisters all lived in the Netherlands and his brother, a professional football referee who travelled frequently, remained in Peru. He had been brought into the country in 2015 by one of his sisters after the death of their parents in Peru.

In 2017 his application to remain was rejected on the basis that the sisters had not previously been involved in his care in Peru, his brother could play a role and the applicant could receive care in a care home for people with mental disabilities in Peru with the financial support of his sisters. There were various domestic legal proceedings, with the family arguing there were inadequate facilities in Peru and the government arguing that was not proven and there was nothing more than the normal emotional ties in any event. The final decision was made in September 2020.

In giving judgment the court, as usual, recites its own precedents, both positive and negative. It’s worth reciting in full as a mini primer in how Article 8 works in this context:

39. In cases where adults had a physical or mental disability or illness of sufficient seriousness and were in need of constant care and support from other family members, the Court has accepted such dependency (see, for instance, Emonet and Others, cited above, § 37, in which an adult child became paraplegic after a serious illness; Bierski v. Poland, no. 46342/19, § 47, 20 October 2022, in which an adult child suffered from Down syndrome and was fully incapacitated; Belli and Arquier-Martinez v. Switzerland, no. 65550/13, § 65, 11 December 2018, in which an adult child had been deaf since birth, had difficulty speaking her mother tongue and had no capacity of discernment on account of a severe disability which had required comprehensive therapeutic provision throughout her life; and I.M. v. Switzerland, no. 23887/16, §§ 30-31, 9 April 2019, in which an elderly father was completely dependent on his sons because he suffered from serious depression and autism).

40. Conversely, in cases concerning the following medical conditions the Court refused to accept that the state of health of the applicants or their relatives was serious enough or, even if sufficiently serious, was sufficient in itself to warrant a finding of the existence of dependency and thus of “family life” within the meaning of Article 8 of the Convention: diabetes, an (undefined) heart condition and chronic obstructive pulmonary disease, and ulcerative colitis requiring treatment, none of which conditions were entirely incapacitating (see A.W. Khan v. the United Kingdom, no. 47486/06, 12 January 2010 ); asthma (see Konstatinov v. the Netherlands, no. 16351/03, 26 April 2007); and paranoid schizophrenia which, while very serious, did not incapacitate the applicant to the extent that he was compelled to rely on his family’s care and support in his daily life (see Savran, cited above, §§ 177‑78).

Applying the law to the facts, the court accepted there was a family life in this case. The court noted that the applicant’s condition was not disputed, he had always been cared for by close family members and that at the time of the final decision the sisters had been performing this function for over five years. It was wrong for the domestic authorities to have focussed on the situation before the applicant entered the Netherlands; lack of legal status might be relevant to the proportionality balancing exercise but it is not relevant to the existence or otherwise of family life.

As regards the existence of a family member abroad who was hypothetically available to care for the applicant, the court commented that

it cannot be derived from the above-mentioned case-law, as the authorities seem to assume (see paragraphs 15, 18 and 22 above), that “exclusive dependency” is always required in order to find that “family life” exists.

The court went on to find that the brother in Peru was “unable to provide the necessary daily care and that the availability of viable alternatives has not been established”.

From a UK perspective, this is an interesting point. The second leg of the principal UK immigration rules on adult dependent relatives require that an applicant in this situation proves there is literally no person in the country of origin who can provide the required level of care. However, there is an Article 8 escape clause in the rules as well, so we can’t really say the rules are incompatible with this judgment as such.

Returning to the case, the court also gave “considerable weight” to the fact that in this case

the applicant’s perception of society was very limited, that his immediate family circle constituted most of his world and that for people outside this circle his communications were often incomprehensible.

A violation of Article 8 was found in this case.