Can a UK Visitor Apply to Remain in the UK as an Adult Dependent Relative?
Gwen is a 66-year old citizen of a visa-national country. She was born, lived and married in her country of origin. This is where her son and two daughters were born. All three children are now British citizens. They are all married and reside in the UK together with their families permanently.
Gwen is a qualified (and Montessori trained) teacher with a Master’s degree in English and a diploma in painting. In 2006 Gwen’s husband died. From September 2007 onwards she became a frequent visitor to the UK.
In 2010, the Home Office granted her UK family visitor’s visa for 5 years, until 23 July 2015. In 2013 Gwen’s home in her country of origin burned down because of defective wiring, and it was too expensive to reinstate it. Gwen lived with her niece for a short period of time. She had no other close relatives or friends in her country of origin and felt increasingly lonely and alienated there.
In June 2014, she travelled to the UK on her visitor’s visa. Gwen never left the country since that time. With regards to her physical condition, Gwen had arthritis and high blood pressure but generally in good health. Gwen did not want to go back not because of her health issues but because she did not want to feel lonely. Like all mothers, she wanted to remain in the UK, to live here with her children and grandchildren.
Gwen’s kids helped her apply to remain in the UK. What was the outcome?
Can Gwen, a UK Visitor, Apply to Remain in the UK as an Adult Dependent Relative or in Any Other Category?
Lord Justice Underhill and his colleagues answered this fundamental question when considering the case of Mobeen.
The short answer to the question is sadly ‘no, Gwen cannot’.
It is because the Secretary of State changed the Immigration Rules 2012. From July 2012, parents and other dependent relatives of British citizens can no longer switch in the UK to an Adult Dependent Relative route.
The same rule applies to relatives of those, who are settled or are in the UK on a refugee, humanitarian protection or EU Settlement scheme leave (visa).
Switching is a legal term defining the process of changing the immigration country in the UK. Before changing an immigration category in the UK, you need to ensure that the rules allow in-country switching.
If the rules do not allow you to switch to this immigration category, the decision-maker will reject your application on validity grounds.
So, as we’ve established, an Adult Dependent Relative route does not allow in-country switching not only from a UK Visitor visa but from any other UK visa immigration category.
So, if the rules do not allow in-country switching to an Adult Dependent Relative route, how did Gwen apply, you may ask me.
What are the Alternatives?
As a matter of fact, Gwen submitted her application on the basis of her private life in the UK. You can get more information about this route HERE.
The Home Office rejected the application under the private life rules. They suggested that Gwen did not have any significant obstacles to re-integrating in her country of origin, where she was born and lived all her life.
Then the SSHD had a legal obligation to decide if the refusal of her visa application would be unlawful under Article 8. In simple terms, Article 8 of the Human Rights Act 1998 protects a person’s right to respect for their private and family life.
To succeed under Article 8, Gwen needed to do two things.
First of all, she needed to prove that there were some exceptional circumstances rendering refusal of leave to remain a breach of Article 8 because it would result in unjustifiably harsh consequences for her and other family members.
Secondly, she needed to show that the refusal will be unlawful and disproportionate.
Gwen was residing with her children for several years before making her visa application. Her children fully supported her emotionally and financially. So it was not difficult for Gwen to prove the existence of family life.
Unlawful and Disproportionate?
But will the refusal be unlawful and disproportionate? The critical point here is that Gwen established her family life in the UK when her immigration status was precarious. In other words, she did not have settled immigration status in the UK when making her visa application. From July 2015, she did not have any right to remain in the UK at all because her visitors’ visa expired.
Therefore, it was decided that the refusal would not result in unjustifiably harsh consequences for her. In other words, she could not prove that there were some exceptional circumstances.
The Judge, Lord Justice Underhill, did search for such exceptional circumstances when considering Mobeen’s case.
Gwen’s arthritis and high blood pressure were relevant when considering her application. However, the fact that medication was widely available in her country of origin knocked the case out of the exceptionality area on medical grounds.
In the 2018 Ribeli case, which was an Adult Dependent Relative entry clearance case, the Judge made it clear that it is physical and not emotional needs that matter in the Adult Dependent Relative cases.
Although Mobeen’s and Gwen’s cases are not Adult Dependent Relative cases per se, they were considered through the prism of this particular immigration route.
Unfortunately, Gwen’s and Mobeen’s cases were refused. UK visitors cannot switch to an Adult Dependent UK Immigration route. In fact, no one can. All Adult Dependent Relative applications should be made outside the UK. To succeed in their application, they’ll need to meet the relevant requirements.
In other words, in addition to meeting the relationship and financial requirements, all applicants will need to show that:
- as a result of age, illness or disability, they require long-term personal care to perform everyday tasks; and that
- the care is either:
- unavailable in their country of origin (even with the practical and financial help of the sponsor); or
- it is unaffordable.
Most importantly, they’ll need to prove the existence of the physical needs of the applicant. As we’ve seen from Gwen’s and Mobeen’s case, the existence of family life and emotional needs, even if established successfully, is not enough to win the case.
OK, what if you go outside the UK and apply to enter the UK as an Adult Dependent Relative? Will this work? This is the question so many people ask me on a daily basis.
It will cost you at least £3,250 to make an Adult Dependent Relative application. And that is if you decide to make such an application without legal assistance. You can more or less double the amount if you ask an experienced immigration advisor to assist you with the application. You are likely to triple your costs if the Home Office refuses the application and you choose to appeal against the decision. The numbers are approximate, of course, but you get the picture. These applications are very expensive. The threshold for them is incredibly high. And the refusal rate is astronomical.
The biggest problem, as I see it, is in the fact that people make their applications without understanding the rules. Unfortunately, as we’ve seen with Gwen, it is not enough to be an over 65 widowed parent/relative with minor illnesses and deep emotional dependency to win the case.
To help all those who send me their desperate and heart-breaking emails enquiring about an Adult Dependent Relative, I’ve created an online course. It is short and simple. It explains ‘How to Avoid the Refusal of Your Adult Dependent Relative Visa Application’. You can get instant access to this course HERE.