Successful application for a dependant parent of a British citizen
By Eylem Kara
Our immigration team was approached by our client’s daughter, who expressed her wish to sponsor her elderly mother to obtain leave to remain in the UK. Our client, a regular and law abiding UK visitor, was unable to return to her home Country at the end of her visit due to a deterioration in health.
After conducting a detailed consultation, our immigration lawyers advised our client that we can submit an application on her behalf for leave to remain in the UK under compelling and compassionate circumstances as a dependant parent of her daughter settled in the UK, as well as on the basis of her private and family life in the UK. We informed our client that although this is a complex matter, we had experience and knowledge in these applications and a high success rate.
The most important factor for all immigration related applications, such as extensions, visas, entry clearance, settlement, nationality, is to provide evidence of what is being said in the application. Therefore, we discussed this with our client and worked with her closely throughout the process to enable her to provide the documents we requested from her.
Our client entered the UK with a standard visitors visa to visit her only child, who is a British national settled in the UK living with her own children and partner. Our client had been visiting the UK every year and genuinely intended to return to her Country of nationality before the end of her visit. However, during her visit, our client’s health severely worsened and it became apparent that she can no longer continue to live alone, and therefore expressed her wish and need to live with her daughter. Our client did not have any other family member as her spouse had passed away years ago and she only had one child. Although our client did have siblings in her Country of nationality, they all lived their own independent lives.
Our immigration team immediately started working on the matter and provided our client with details of the application process, advising on the requirements and evidence required. Our client was also informed from the outset that there was a high chance that the matter would have to be appealed, before having a successful outcome.
This application was predictably refused as Home Office rarely applies the discretion vested in them for such matters, or conducts the test for exceptional, compelling and compassionate circumstances in the correct manner. Our client did not meet the Immigration Rules for leave to remain on the basis of family life. We therefore relied on the grounds of Article 8 of European Human Rights Charter, with emphasis on the right to private and family life and addressed that there were compassionate circumstances in our client’s case. Nevertheless, our expert immigration team had prepared a remarkable application to leave the Tribunal with little to comment on.
Although strong evidence of our client’s medical, emotional and financial needs as well as evidence of the best interest of her two grandchildren were provided, the Home Office refused our client’s application on the basis that the Immigration Rules were not met and that there were no exceptional circumstances.
During our consultation after the Home Office decision was received, it was informed to our client that the refusal should be challenged by way of lodging an appeal and having her matter heard by an Immigration Judge. Considering our client’s Immigration history and circumstances, we believed that she had a possibility of succeeding, provided she was able to support the appeal with strong evidence.
Grounds we relied on in the Immigration application and Appeal
We explained that our client was aware that she does not meet the requirements under the Immigration Rules for family life, we therefore relied on private life concerns as well as her exceptional circumstances.
Within our representations, we explained that our client was an elderly person, suffering from various health issues and therefore requires long-term personal care as a result of age, illness and disability. It was therefore explained that although we acknowledge that our client cannot apply for leave to remain on the adult dependent route from within the UK, the Home Office was asked to use their discretion in acknowledging the difficulty our client would face if she was made to travel back to her Country and make the correct entry clearance application, which would most probably be successful. Our client contributed to her application by providing evidence of the health problems she faced in her Country of origin as well as the health problems she experienced during her visit to the UK. Our immigration team assisted our client carefully and provided detailed guidance on what should be provided.
We also evidenced to the Home Office that our client’s daughter cannot be expected to move back home or visit her mother more than she already did as she was in full-time employment in the UK, with young dependent children who obviously needed both of their parents to be with them throughout the year. Evidence from the children’s life in the UK were also provided and the Home Office was invited to give vital consideration to the best interest of the relevant children.
Another reason we relied on in our representations was that our client was unable to receive the required level of care in the Country where she was living and there was no person in that Country who was available to reasonably provide care. Various evidence relating to the care and medical system of the Country was provided as well as the provisions which were made available by our client’s sponsor daughter. Our client’s daughter had provided an undertaking, assuring the Home Office that she will adequately maintain, accommodate, and care for our client. Our client’s daughter and her husband had more than enough income to cover for their own expenses as well as our client’s needs.
When considering the refusal letter, it came to our attention that the Home Office had misapplied the Immigration Rules. Our client clearly met the requirements where an applicant must show that they are aged 18 or above and that there would be very significant obstacle to their integration into the County to which they would have to go if required to leave the UK. The Home Office absurdly argued that as our client resided in her Country for her whole life and was obviously was familiar with the language and culture, she would not face any significant obstacles to re-integrating. The evidence provided by our client proving her circumstances and the significant obstacles were completely ignored by the Home Office.
A major factor which was disregarded by the Home Office decision making, was the existence of exceptional circumstances and the best interest of the children.
The Home Office had failed to recognise the change in our client’s health during her visit to the UK, as well the difficulties our client would face when living alone.
While reviewing the refusal letter, it was apparent that the Home Office misapplied the Immigration Rules, without using any discretion and without detailed consideration of our client’s circumstances. We therefore immediately advised our client to appeal the decision.
Within the grounds of appeal, we successfully argued that the significant obstacles our client would face, the exceptional and compassionate reasons and that the best interest of our client’s two grandchildren were misapplied by the Home Office.
It was explained that our client never claimed that she did not know the language or culture of her home Country, therefore this was an unreasonable excuse to be used as refusal. We also argued that the Home Office failed to apply the private life rules properly. As we had already addressed all relevant matters in detail within the initial application and grounds, there were no new information to address within the grounds of appeal. We successfully argued that the Home Office’s decision to refuse our client’s application had breached his right to family and private life under Article 8 of the ECHR.It is very important that when you submit an Immigration application under any category, the circumstances are clearly set out and evidence of the same is provided. This will be very useful if you have to appeal the Home Office decision.
Therefore, as preparation for the hearing, we advised our client on steps to be taken to strengthen her case. By the date of the hearing, our client managed to obtain further evidence of her ongoing health problems and updated evidence, reflecting what was already mentioned in the application. Our immigration lawyers worked closely with our client to make sure all essential evidence were updated to confirm that her problems continued.
At the outset of the hearing, we confirmed that our client will be relying on the immigration rules under private life and family life under Article 8 grounds. The Judge considered the grounds and evidence provided, with extra care given to our client’s updated evidence of health concerns. It was also acknowledged that our client had made plenty of lawful visits to the UK and had never overstayed. The Judge accepted that our client had no intention to overstay at her last visit.
In view of our client’s need of care and assistance, the Judge was satisfied that our client needed her daughter and son-in-law. It was therefore ruled that the removal of our client would cause interference with our client’s family life enjoyed in the UK. Therefore, the appeal succeeded on Article 8 grounds. Our client was also awarded a fee as most of the evidence were the same as what was in front of the Home Office, the only difference being further investigations and assessments.
What is the process for Appeals?
Appealing against a visa or immigration decision is a statutory way of challenging the Home Office’s decision at the First-Tier Tribunal (Immigration and Asylum Chamber). You can only appeal to the tribunal if you have the legal right to appeal, you’ll usually be told whether or not in your Home Office decision letter.
The appeal process consists of two stages. For appeals within the UK, it will have to lodge the application by 14 calendar days from the date of refusal. Preparing for an Immigration appeal hearing requires extensive knowledge and experience. The top Immigration lawyers will always consider the merits of any application prior to advising.
The first step we took in preparing for the hearing was to review our initial advice and reexamined the refusal reasons and considered them against the application our client had submitted. In doing so, our team referred to the relevant Immigration Rules, case law and Human Rights grounds and how those were applied.
Once the grounds of appeal were drafted, the appeal was filed with the Tribunal together with the fee. Once a hearing date was allocated to our client’s appeal, we started preparing the full bundle of papers and filed with the court on his behalf, as his representatives.
Our Immigration team worked closely with our client and monitored each and every update in the process. By providing the best advice to our client and with the corporation by her, we managed to achieve a great result for our client which legalised her stay in the UK and allowed her to live with her daughter, son-in-law and grandchildren.
For an initial assessment of your Leave to Remain application, refusal or appeal, get in touch with our immigration lawyers.