Article 8 and ‘Catch 22’: New Rules for ADR are Lawful

BritCits v The Secretary of State for the Home Department [2017] EWCA Civ 368 (24 May 2017)

Dead woman walking” zombie Theresa May’s odium for the sick and elderly achieved infamy long before her “dementia tax” debacle. The courts have repeatedly upheld the validity of the harsh Immigration Rules she unleashed in July 2012 and their approach to the controversial rules for adult dependant relatives (ADR) is no different. These proceedings arose out of a generically made judicial review challenge to the ADR rules by the charity BritCits which seeks to preserve the interests of sponsors and applicants affected by the stringent rules on family migration by campaigning to change them. Last year Mitting J dismissed the claim seeking to quash the rules for the admission of ADR of British citizens, those settled in the UK and those in the UK with refugee leave or humanitarian protection. In this judgment Sir Terence Etherton MR and Davis and Sales LJJ dismissed the onward appeal. BritCits complained of three things. First, violating the principle in Padfield [1968] UKHL 1, Mitting J had failed to find that the home secretary had not exercised her powers under the Immigration Act 1971 to promote the object and policy of the statute but instead acted in the overriding pursuit of different non-statutory objectives (namely the reduction of costs to the NHS).

Second, he failed to find that the immigration rule in issue operates in a self-defeating and partial way, is irrational and thus unlawful. Third, he failed find that the immigration rule in issue is incompatible with article 8 of the ECHR and needed either to be quashed, or that a declaration needed to be made regarding its non-compliance with article 8. The claim was argued on the basis of a paradigm factual situation where a UK citizen has an elderly dependant parent residing outside the UK and both the foreign parent and the UK citizen child want the final years of the parent’s life to be spent in the care of his or her child and in the company of his or her grandchildren. BritCits submitted that article 8 protected the family life enjoyed by the parent and the UK citizen in every paradigm factual situation presented by the written evidence of practicing lawyers tendered specifically for these proceedings.

The Problem

As of December 2012, the terms of the Immigration Directorate Instructions (“the guidance”) interpreting the new ADR rules are such that in a paradigm case it is almost always impossible for the conditions of the new ADR Rules to be fulfilled as a matter of principle and on the evidence. The stringency of the requirements in the guidance is such that an ADR application under Appendix FM must be refused if the required level of care is available or affordable. It must be established that the applicant has no access to the required level of care in the country where they are living, even with the practical and financial help of the sponsor in the UK.

Moreover, an ADR is deemed unable to receive the required level of care in the country where they are living only if no one there can reasonably provide them with care. Consideration must be provided to whether anyone in the country where the applicant is living can reasonably provide the required level of care. The carer can be a close family member such as a son, daughter, brother, sister, parent, grandchild, grandparent or another person who can provide care, (for example, a home-help, housekeeper, nurse, carer, or care or nursing home). Where an applicant has more than one close relative in the country an expectation exists regarding pooling of resources to provide the required care where they are living. However, any relevant cultural factors – such as in countries where women are unlikely to be able to provide such support – must be borne in mind in the decision-making process.

Prior to the promulgation of the new ADR rules, respondents to Family Migration: A Consultation (2011) remained divided (42 per cent wanted new rules and 42 per cent did not) on whether other ways of relatives supporting their parents or grandparents overseas needed to be considered. Subsequently, in a series of developments, the Policy Equality Statement (2012) stated that changes to the existing structure were justified because the Department of Health estimated that a person who lives until their 85th birthday can be expected to cost the NHS almost £150,000, with more than half of these costs arising between the ages of 65 and 85. In these proceedings the executive argued that the new ADR rules entail a saving of £249 million to the public purse over 10 years.

The Court of Appeal

The appeal was dismissed on all three grounds.

(i) Sir Terence Etherton MR

The policy driving the ADR rules was clear enough. First of all, the rules sought to reduce the burden on the taxpayer in relation to the provision of health and social care services to those ADRs whose needs can be reasonably and adequately fulfilled in their home country. Secondly, the rules sought to ensure that those ADRs whose needs can only be reasonably and adequately met in the UK are granted fully settled status and full access to the NHS and local authority social care.

The rules and guidance focus on whether the care required by an applicant ADR can be reasonably provided and to the required level in their homeland. The executive confirmed that care provided in the home country must be reasonable both from the carer and the applicant’s perspective and the standard of care must cater to the requirements of the particular applicant in question. Arguably neglected in the past, these considerations dually revolve around the necessity of care and the reasonableness of receiving it in the ADR’s home country. The overall analysis must consider any issues regarding the accessibility and geographical location of the provision of care and also the standard of care. Reasonableness needs to be assessed in an objective manner and the considerations involved are “capable of embracing emotional and psychological requirements verified by expert medical evidence.”

However, since the ADR rules under Appendix FM also apply to grandparents, brothers and sisters of 18 years or over and sons and daughters of 18 years or over, his Lordship held that:

60. I do not accept that, in considering the legality of the new ADR rules, it is right to concentrate only on what Ms Lieven described as the paradigm case, namely a dependency as between ADR parent and UK sponsor child.

The court also rejected the argument that family life engaging article 8 always exists on every occasion a UK citizen with an elderly parent abroad wishes for the parent to be admitted to the UK for care. Notably, as demonstrated by Kugathas [2003] EWCA Civ 170, Huang [2007] UKHL 11 and Rai [2017] EWCA Civ 320, the existence of family life at the time of application is fact specific as to the relationship between parent and adult child in historical perspective.

Padfield Principle and Ultra Vires

Under the Padfield principle, as interpreted by the reviewing court, a discretion conferred by statute on a minister must be exercised in order to promote and not to defeat the object of the legislation concerned. However, his Lordship held that the ADR rules did precisely what was required under section 1(4) of the 1971 Act which was to make provision “in such cases and subject to such restrictions as may be provided in the rules” for persons coming as dependants of persons lawfully in or entering the UK. The challenge on the Padfield ground plainly failed because statute does not specify that all dependants or any particular category of dependants be permitted to enter and remain.

The language of section 1(4) is unambiguous and cannot be displaced by any material in existence before or at the time of the enactment of the 1971 Act. Nothing in the provision is indicative of Parliament’s intention to fetter the executive’s discretion to lay down rules about ADRs by creating “a minimum threshold of stringency or a minimum width of gateway, let alone indicating what any such minimum might be.” Therefore, Etherton MR rejected the argument that the overall situation created by ADR rules essentially precludes an application by a dependant parent.

Lord Dyson’s approach in Munir [2012] UKSC 32 regarding the obligation to make rules had been satisfied and as Mitting J said, subject to article 8, it would have been perfectly within the parameters of section 1(4) for the executive to completely exclude adult dependants from persons who must be admitted.

Reliance was also placed by BritCits in the “right of abode” under section 1(1) of the 1971 Act to argue that the right to be free to live in the UK without let or hindrance colours the scope and purpose of the duty under section 1(4). It was also argued that the denial of family reunion interferes with British citizens’ residence in the UK and causes rights under section 1(1) to be violated because of compelling UK citizens to relocate abroad as a result of the denial of admission to their ADRs. The authority of ZH (Tanzania) [2011] UKSC 3 was invoked to emphasise “the intrinsic importance of British citizenship”.

Yet Etherton MR was highly unsympathetic in that regard because of the decision in MM (Lebanon) [2014] EWCA Civ 985 where Aikens LJ held that although British citizenship entails a personal right to live in the UK without let or hindrance, nothing in the 1971 Act or the common law grants a constitutional right to British citizens to live in the UK with non-EU citizens who do not have the right of abode in the UK.

Unreasonableness and Manshoora Begum

Simon Brown J (as he then was) held in R v IAT ex parte Manshoora Begum [1986] Imm AR 385 that the executive has the duty not to promulgate an “unreasonable” immigration rule. He held that it is possible at common law to challenge to an immigration rule for being “unreasonable” in the sense described by Lord Russell in Kruse v Johnson [1898] 2 QB 91. In Manshoora Begum a Pakistani woman was refused entry clearance to settle in the UK as the dependant relative of her British brother under paragraph 52 of the then Immigration Rules HC 169. The rule made it mandatory for the relative to have “a standard of living substantially below that of their own country”. Applying Lord Russell’s approach in Kruse, it was clear to Simon Brown J that the effect of the rule was “unreasonable” and therefore invalid with the consequence that the offending wording had to be severed from the rest of the rule.

Since it was impossible for an applicant to satisfy a requirement of being mainly dependent on the sponsor and actually also live substantially below the standard of living in their own country, Simon Brown J attacked the rule for being:

a snare and a delusion, a pretence which raises expectations without there being any real possibility of fulfilling them.

Simon Brown J thus held that the rule was unreasonable in the narrow sense indicated in Kruse and thus ultra vires the enabling statutory power.

Dispelling criticism of the ADR rules on the above basis, Etherton MR reasoned that the ADR rules were neatly intertwined with the policy underpinning their existence. The rules intended to achieve the objectives of reducing the burden on the taxpayer and ensuring that only persons whose needs could only be reasonably and adequately met in the UK were granted settlement status. His Lordship found that Simon Brown J struck down the rule engaged in Manshoora Begum because it constituted a delusion/pretence which raised expectations without there being any real possibility of fulfilling them and because it was “partial and unequal” in its operation as between different classes of potential applicant. By comparison, the present ADR rules do not operate in an arbitrary or capricious way as between different categories of adult dependant relatives. Each case turns on its own facts.

Prior consultation, debate within Parliament and Parliamentary approval following that debate before the promulgation of the ADR rules needed to be taken into consideration when evaluating the challenge of unreasonableness to their proposed policy and objective. Given that the estimated costs of caring for an individual between the ages of 65-85 totalled £75,000, the policy and objectives behind the ADR rules were clearly not irrational at all. Differences between higher and lower standards of care in different countries inevitably result in the outcome that applicants from countries with high standards of healthcare find it difficult to meet the conditions in the new ADR rules because obtaining such care is not disproportionately high. And in some countries even with financial support from the UK sponsor the costs of care may be very high and unaffordable for the ADR.

Article 8 and Proportionality

In MM (Lebanon) [2017] UKSC 10 (see here), following the observations made in the earlier case of Bibi [2015] UKSC 68 (see here), the test for striking down an immigration rule is that it must be incapable of being operated in a proportionate way in relation to article 8 of the ECHR and so is inherently unjustified in all or nearly all cases. Etherton MR held that the requisite test had not been met and he rejected the proposition that family life engaging article 8 exists in each and every case where a UK sponsor wishes to bring their elderly parent to the UK to care for them.

According to his Lordship, it was clear from Kugathas that no presumption exists that a person enjoys a family life even with the members of his or her immediate family. Indeed, in the case of an adult, blood ties or the concern and affection that ordinarily occur in tandem with such traits, even if compounded, cannot be regarded as sufficient as constituting family life. Bonds over and above normal emotional ties must exist and the court must scrutinise all the relevant factors. In Huang, Lord Bingham listed numerous factors that must be weighed in the balance. These factors include but are not limited to age, the applicant’s health and vulnerability, the closeness and previous history of the family, the applicant’s dependence on the financial and emotional support of the family, the prevailing cultural tradition and conditions in the country of origin. Singh and Singh [2015] EWCA Civ 630 and PT (Sri Lanka) [2016] EWCA Civ 612 did not take the legal principles any further.

Moreover, for the rules to be struck down consideration needed to be provided to their proportionality not merely to the category of parent and child but to all the dependants that could apply pursuant to them. In Etherton MR’s view, BritCits failed to establish that the rules were incapable being met in virtually all cases for parents, let alone for all the categories of ADRs entitled to apply, whose family life engaged article 8. Furthermore, in conducting the balancing exercise between the competing interests of ADRs and their sponsors on one side of the scales, and the public interest on the other, significant weight needed to be provided to the fact that the proposed policy and objectives had been subject to prior consultation, Parliamentary debate and approval.

The reasons underpinning the executive’s rejection of measures less intrusive on family life and their unsuitability were not flawed and were “essentially matters of policy for the government and Parliament rather than the court.” Whilst criticism of the guidance for its lack of clarity was justified, no relief was sought in respect of the guidance and the claim sought as the remedy of the new ADR rules to be quashed for reason of being defective.

(ii) Sales LJ

Making some observations of his own, his Lordship agreed with Etherton MR that the appeal should be dismissed. In Bibi and MM (Lebanon), the court proceeded on the assumption that the relevant immigration rule constituted an interference with an ECHR right whereas in the present proceedings this could not be taken for granted. The reason was that a live issue arose in the present proceedings as to whether the ADR immigration rules under challenge only apply where article 8 rights of the ADR or the sponsor in the UK are engaged and where the application of the rules would invariably involve an interference with such rights.

In aid of the appeal it was argued for BritCits that for the test in Bibi and MM (Lebanon) to be applied correctly, it has to be assumed in favour of the relevant ADR and sponsor in relation to whom the ADR rules are applied that they do have “family life” for the purposes of article 8, with the result that the only question becomes whether – in light of the assumption made – the application of the rules would be unjustified and disproportionate. However, Sales LJ disagreed because in his view there is likely to be a significant number of cases even within the paradigm type of situation involving elderly parents abroad in which article 8 rights will not be in play with the result that the application of the ADR immigration rules would not contravene article 8.

The court thus rejected the submission that article 8 rights are always engaged in cases covered by the ADR rules and the submission that application of the rules will invariably involve an interference with article 8 rights. Adjusting the test in Bibi and MM (Lebanon) – to cover a situation in which a live issue arises as regards whether article 8 is engaged at all in some cases covered by the challenged immigration rule – involves answering the question whether the rule is incapable of being applied in a way which does not involve a breach of article 8. The court would not be in a position to strike the rule down where it can be applied without violating article 8 or where article 8 is engaged but the interference is justified and proportionate. In either situation it would be wrong to quash a rule that is capable of being operated perfectly lawfully and compatibly article 8 in a range of cases. No proper basis for treating the rule itself as unlawful was discernable because in each situation there would be perfectly legitimate scope for the rule to be applied according to its terms in at least some cases.

Ample scope exists for the ADR rules to be applied lawfully without breaching article 8 rights because in some cases article 8 will not be engaged. And even if it is engaged, the interference will be justified pursuant to the public interest and will be proportionate. For example, where the required care can reasonably be provided overseas, it is probably that no disproportionality will arise by the literal application of the ADR rules. The court went on to hold that:

90. … An immigration rule which is apparently properly promulgated by the Secretary of State and presented to Parliament in the proper way is not to be struck down if it can apply without violation of article 8 in some cases.

Since the decided authorities are clear that an immigration rule should only be quashed as unlawful in article 8 terms where violations of family life are guaranteed in all (or nearly all) cases, Sales LJ found it “most strange” assume otherwise in aid of the present challenge because the court would give disproportionate effect to the principles established in MM (Lebanon) and Bibi.

Comment

Insensitive tribunal judges are highly dismissive in ADR appeals even when they factually find that 20 British members of a mentally ill, elderly and illiterate person are taking care of her in the UK. Specifically in relation to long-term gender specific intimate day-to-day personal care, if you are the ADR mentioned in the previous sentence and even if your youngest daughter (who herself got her spouse visa after four appeals) states during lengthy judicial cross-examination that “when mum comes over for the weekends we sleep in the same bed” this evidence will not be enough to swing the white judge’s opinion in your favour.

Of course, the other five days of the week will be spent in the care the older daughter who came to the UK more than 30 years ago and is now an accomplished businesswoman. But that will not help you either because the judge will consider her so rich that she will be considered capable of supporting you in your native Gujarat by using a paid carer and relying on your remaining cancer patient daughter in India. The concept of the provision of long term gender specific personal care by your own two British daughters will be thrown into the dustbin.

Things have hit such a low-point in this area now that the HOPOs remain silent throughout hearings and judges step into their shoes and cross-examine witnesses and find odd personal points to dismiss appeals. Their reasons do not withstand some of the points made in this judgment about the care required by the ADR being “reasonably” provided to “the required level” in their home country. Fees for ADR applications are now £3,250 and UKVI have resorted to charging an arm and leg to write a one-page refusal.

Because of the introduction of the new ADR rules successful annual ADR applications fell from 2,325 during the period April 2010-March 2011 to 189 in 2013 and 135 in 2014 (an annual average of 162 and a reduction of 2,163 ADR grants per year compared to 2010-11).

Home office figures show that in 2015 there were 452 ADR applications of which a mere 50 were granted. Of these 22 applications were granted at first instance, seven after ECM review and 21 following a successful appeal and these figures demonstrate an 11 per cent success rate.

About mkp

Advocate High Courts of Pakistan
This entry was posted in ADR, Appendix FM, Article 8, Dependants, ECHR, Immigration Rules, India, Judicial Review, Proportionality, Tribunals and tagged , , , , , , . Bookmark the permalink.

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