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Appendix FM: Taking care of Mom and Dad

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We all have responsibilities and for many of us our day to day obligations extend to providing care to our elderly family members who due to age or illness require our assistance. Some consider this to be the circle of life; parents take care of their growing children and children take care of their ageing parents. However, onerous Immigration Rules seem to degrade the inevitability of these relationships making it almost impossible for foreign applicants to meet the threshold required to join their family in the United Kingdom (UK).

Background

Before July 2012 elderly applicants (over 65) needed to show that they were wholly or mainly financially dependent on the person living in the UK and that there was no one else that could provide that support, to qualify for settlement. However, Appendix FM of the Immigration Rules implemented in July 2012 provides a much more rigorous test for adult dependent relatives.

Amongst other things, the new rules require the dependant applicant to show that they require long-term personal care to perform everyday tasks as a result of age, illness or disability. Additionally, the individual wishing to enter the UK must prove that they are 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 it is either not available and there is no person in that country who can reasonably provide it, or it is not affordable.

There are mandatory and lengthy evidential requirements imposed on individuals trying to exercise this route making the burden placed upon applicants near impossible to overcome.

Case Law

The validity of these rules was challenged in the case of BRITCITS v Secretary of State for the Home Department (2017) where the Court of Appeal provided guidance on their implementation in practice and highlighted the need for reasonableness when assessing whether someone has access to care in their home country. This judgment affirmed the importance of considering the accessibility, geographical location and standard of care available whilst also bearing in mind the emotional and psychological state of an applicant.

The recent judgment of Ribeli v Entry Clearance Officer, Pretoria [2018] built upon this guidance reinforcing the rigorous and demanding threshold required to satisfy the parameters of Appendix FM.  Specifically, this judgment took a very broad approach when considering the reasonableness of care options in the applicant’s home country and neglected to consider depression and anxiety as a material mental health concern. 

It is clear then that individuals wishing to bring adult dependant family members to the UK face an almost impossible feat.

Next Steps

If you or someone you know require some advice or assistance in relation to the subject matter of this article or have any other immigration queries, please call us on 0207 842 0806 for assistance.

 

This article is not a definitive statement of the law. It is designed as a free update on the law at the time of publishing. It is not a substitute for legal advice on specific facts and circumstances. BakerLaw LLP and/or the writer accepts no liability or responsibility for reliance on this article and recommends that you seek independent legal advice on your specific circumstances prior to taking any steps.

 

 

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