John and Gwen are a couple in their 60th. They are from a visa national country. They came to the UK 5 months ago as visitors to see John’s elderly mother, who said that her days were numbered. John’s mother is a British citizen. Soon after their arrival, John’s mother’s medical condition got worse and she asked John and Gwen to stay and look after her a bit longer. They are concerned as their visa will expire next months. They know they cannot extend it as visitors. Can they remain in the UK using any other UK Immigration Route?
Outside the Immigration Rules
Here is what John and Gwen need to know.
There are no provisions in the UK immigration rules allowing someone in John’s and Gwen’s situation to remain in the UK on a short term basis. It is obvious that they will not qualify under the Adult Dependent Relatives rules. The Home Office and the Department of Health have consistently argued that the care in the community policy is not designed to allow people to stay in the UK who would otherwise not have a visa to do so.
However, there is a long-standing concession stating that further leave to remain application can be ‘granted where it is warranted by particularly compelling and compassionate circumstances’. The Home Office clearly instructed its caseworkers to consider such applications outside the Immigration Rules.
Applications from Outside the UK
At the British Embassies and High Commissions, they have a certain procedure of dealing with these types of applications. As there are no rules allowing entry clearance grant on the basis of coming to the UK to care for a sick family member or friend, the application will be considered under the General Visitors Rules. This, in the Home Office’s view, should be sufficient to provide short-term care or make alternative arrangements for the long term care.
However, in my opinion, John and Gwen are likely to encounter difficulty with this approach. Their general visitors’ visas may be refused because they don’t seem to meet the key requirement for general visitors ‘Genuine intention to visit’. All general visitor applicants need to demonstrate that they:
(a) will leave the UK at the end of their visit; and
(b) will not live in the UK for extended periods through frequent or successive visits, or make the UK their main home; and
(c) is genuinely seeking entry for a purpose that is permitted by the visitor routes; and
(d) will not undertake any prohibited activities; and
(e) must have sufficient funds to cover all reasonable costs in relation to their visit without working or accessing public funds. This includes the cost of the return or onward journey, any costs relating to dependants, and the cost of planned activities such as private medical treatment.
Potentially, if John and Gwen were to apply to look after John’s mother from outside the UK, their visas would be refused on all 5 grounds above. So, it is clear, that chances of succeeding outside in the applications made outside the UK are second to none. That is unless John and Gwen can present some form of evidence which is truly exceptional and compassionate.
Applications Made in the UK?
In their policy guidance, the Home Office encourages its caseworkers to always consider cases on its individual merits.
However, in all types of cases, the decision-makers will have a look at the following factors:
- the type of illness/condition (this should be supported by a Consultant’s letter); and
- the type of care required; and
- care which is available (e.g. from the Social Services or other relatives/friends); and
- the long-term prognosis.
If they find any exceptionality in the case, they are likely to grant it for only 3 months. With ‘no recourse to public funds’ condition imposed on John’s and Gwen’s stay. This means that they cannot claim any type of public benefit while remaining in the UK to look after John’s mother.
Further Leave to Remain after Further Leave to Remain
What if, after being granted a 3-month extension, John and Gwen need to stay even longer?
At this stage, the Home Office instructs the decisions maker to get in touch with the applicants and establish full facts of the fact.
At this stage they WILL expect John and Gwen to provide:
- a letter from a registered medical practitioner who holds an NHS consultant post with full details of the condition/illness and long term prognosis; and
- a letter from the local Social Services Department, where they are known to be involved, advising of their level of involvement, the perceived benefits of the presence here of the applicant, and an explanation as to why suitable alternative care arrangements are not available.
- Any further evidence that alternative arrangements for the care of the patient have been, or are being, actively explored. For example, whether contact has been made with voluntary services/charities to see if they can assist or whether the possibility of private care has been costed and assessed. A previous grant of a 3-month extension should have been accompanied by a letter explaining that the extension was granted to enable such arrangements to be made; and
- full details of the patient’s family in the UK, the degree of relationship, and, if applicable, details of how the patient was previously cared for and why these arrangements are no longer considered suitable and/or are no longer available; and details of the applicant’s circumstances in his home country, such as whether he has a spouse and children, the type of employment and other relevant family circumstances (as a general rule a person seeking to remain in the UK on a long term basis as a carer should normally be unmarried and have no dependents); and
- evidence that there are sufficient funds available to maintain and accommodate himself/herself without working or recourse to public funds.
The majority of leave to enter or remain applications will have a ‘no recourse to public funds’ condition attached to their stay. This means that they will not be allowed to claim any benefits while in the UK.
However, under the Care in the Community arrangements, some patients may qualify for an Attendance Allowance from which they can pay for a person to care for them. Attendance Allowance is a tax-free benefit for people aged 65 or over who need help with personal care because they are physically or mentally disabled.
The allowance is paid to the patient rather than the carer and therefore the carer would not be considered to receive public funds. If the patient is claiming other benefits and is using these to support and accommodate the carer, provided that the patient is not claiming any extra benefit for the carer then again this should not be considered as recourse to public funds unless the carer was to claim benefits in his own right.