Article 8 and ADRs: The End of the Line?

Ribeli v Entry Clearance Officer, Pretoria [2018] EWCA Civ 611 (27 March 2018)

Singh LJ has recently taken yet another scalp. On this occasion his Lordship’s sword fell on the head of a helpless and elderly woman, a South African national called Cheryl Ribeli who suffers from numerous serious medical conditions including a chronic degenerative back disease, osteoarthritis and fibromyalgia. Overall, the upshot is that the rigorous and demanding rules for adult dependent relatives (ADRs) are here to stay and applicants must meet them in order to succeed. The calculus of the rules is such that emotional needs take second place to physical needs. This is yet another strident ruling which leaves a lot to be desired if you happen to be acting for the sick and the elderly who would like to join their family in the UK. Cheryl Ribeli’s daughter and sponsor, Carmen Steenkamp, is a British citizen who arrived in the UK in 2007 to work as an accountant with South African qualifications and citizenship. Her application for entry clearance as an ADR pursuant to Appendix FM of the Immigration Rules was refused by the ECO because he was not satisfied that she could not obtain the necessary care and support in South Africa, as specified under the terms of paragraph E-ECDR.2.5. The refusal letter of May 2014 stated that there was no evidence regarding the unavailability of specialist care in South Africa and maintained that other relatives were present in South Africa to provide the necessary care.

A letter written by counsel asserting that Steenkamp would have to leave the UK if her mother’s application was refused was cleverly construed by the ECO to mean that the daughter was free to return to South Africa to care for her mother. Ribeli had suffered from a degenerative disease of her lower and lumbar spine since her twenties. Her condition had deteriorated in her old age and separation from her daughter exacerbated her problem. Her GP opined that her present musculoskeletal pain was chronic and treatment for her problem was unavailable in South Africa. Thus she would only be able to access the level of care, including emotional care, she requires for an adequate quality of life from a close family member. Nurses and hired help were an inadequate replacement for her only daughter. Another specialist, whose advice was unseen by the ECO, explained that analgesics taken by Ribeli for pain control caused sedation. His opinion stated that overexertion exacerbated her condition and he stressed that she lives all alone and is struggling with daily life. The resultant anxiety and depression heightened her muscle tension and worsened her fibromyalgia.

The First Tier Tribunal

FTTJ Napthine allowed the appeal against the ECO’s refusal on the rules without the need to conduct an additional assessment pursuant to article 8 of the ECHR. Since the daughter was a formidable witness he found that Ribeli would not be able to access care in South Africa, a turbulent and divided country where the vulnerable are unprotected and uncared for in any event.

The Upper Tribunal

UTJ Clive Lane allowed the ECO’s appeal on the sole ground that FTTJ Napthine’s factual findings were inadequately reasoned. UTJ Clive Lane judged that FTTJ Napthine had materially erred in law because (i) the FTT did not resolve the apparent contradiction presented in the evidence as to Ribeli’s “unmet needs” (ii) no evidence indicated that care services were not available outside the local area and (iii) the FTT did not rely on any independent evidence when finding that there was no reliable care available to Ribeli.

UTJ Clive Lane set aside FTTJ Napthine’s determination and dismissed Ribeli’s case on the basis that she had not established that she satisfied the requirements in E-ECDR.2.4 of Appendix FM. He also dismissed Ribeli’s cross-appeal under article 8 on a freestanding basis because her sponsor was willing to relocate to South Africa to provide care if necessary. UTJ Clive Lane reasoned that the case failed on article 8 because it was an ADR case, distinguishable from a child’s case, and it was reasonable for the sponsor to return to South Africa in order to care for mother or to oversee her care arrangements there. It was clear that the rules for ADR under Appendix FM impose “a rigorous and demanding test”. Indeed, the stringency of the test was a reality which came to be accepted by Ribeli’s counsel during the course of the onward appeal.

The Court of Appeal

Notably, Ribeli’s challenge to the lawfulness of the ADR rules fell away in light of the decision in BritCits [2017] EWCA Civ 368 (see here). Her case therefore turned on the following issues (i) whether the UT was correct to find that the FTT had erred in law and in setting its decision aside? if no then any other issues did not arise (ii) if yes, then did the UT itself err in law when re-considering the appeal? and (iii) whether the UT’s approach to article 8 was flawed? Singh and Hallett LJJ dismissed the appeal on all points.

A head-on generic challenge to the ADR rules failed in BritCits where like the first instance judge, Etherton MR, Davis and Sales LJJ held that the rules for ADR laid down in Appendix FM were lawful. Etherton MR found that reducing the burden on the taxpayer by excluding ADRs who could be cared for elsewhere was a good reason for promulgating the new rules. It was equally pointed out, however, that the failure of most applications under the new ADR rules was by no means inevitable. Central in the ruling was the point that decision-makers would only refuse applications in cases where adequate care was available in the home country and if the care that is available is both reasonable for the applicant to receive and of the level required for that applicant.

On the first issue, Singh LJ held that UTJ Clive Lane’s threefold rationale rightly identified an error of law in the FTT’s decision. FTTJ Napthine put things too forcefully and sweepingly by suggesting that the ECO’s reasoning rested on a false basis because the ECO had twisted Ribeli’s counsel’s letter against her to decide that “she needs assistance with tasks as basic as cooking, shopping and washing herself” was to be equated with “indicate that you currently receive the care that it is claimed you need.” FTTJ Napthine determined that it was possible that there was an unmet need. However, for Singh LJ, the ECO’s point “was a perfectly reasonable one” and was not “false”. The decision-maker was merely observing that the difficulties experienced by Ribeli could not be as fundamental or severe as claimed because otherwise she would not be able to wash herself or eat. It was reasonable for the ECO to question the need for clear evidence on exactly what was happening routinely in Ribeli’s life.

The FTT had made findings in the abstract without relating them to the present case. No independent evidence showed that Ribeli was unable, even with the practical and financial help of her daughter, to access the requisite level of care in South Africa. As UTJ Clive Lane observed, if she was receiving care then there was no evidence to satisfy paragraph 37 of Appendix FM-SE. The only evidence related to the vicinity where she was resident, not to the larger Cape Town area, still less the entire country of South Africa; a vast place by any stretch of the imagination. Equally, no independent evidence had been adduced to support FTTJ Napthine’s contention that in the absence of a close relative’s supervision, the provision of care services in South Africa would be wholly unreliable.

On the second issue, Singh LJ found nothing improper with the UT reconsidering the appeal. He instead opined that the appellant needed to demonstrate that she qualified for entry clearance in accordance with the terms of the ADR rules and the burden of proof rested on Ribeli in that regard. Overall, the harshness of the existing situation – as espoused by his Lordship – is personified by the following paragraph:

56. … As I have already mentioned, those rules, as amended from 2012, are “rigorous and demanding”. That was the policy decision of the Secretary of State and was endorsed by Parliament in approving the change to the rules in 2012. A challenge to that change has been considered and rejected by this Court in BritCits.

Despite counsel’s counterpoints, it was clear to the court that UTJ Clive Lane had not faltered in his findings on Ribeli’s emotional needs despite making no mention of them at all. The court concurred with the government’s argument that what mattered crucially in the instant case were her physical needs. The medical evidence was ambiguously framed and intimated that neglecting her emotional needs would cause further deterioration in her physical health, particularly her fybromyalgia. Unconvinced of the merits of Ribeli’s appeal, the court held that:

59. … Taken by itself, the appellant’s mental health (“anxiety and mild depression”) cannot possibly be regarded as being so serious that she could not be cared for in South Africa.

60. As to her physical care needs, the fundamental point made by the UT was that the evidence simply did not discharge the burden of proof: it was insufficient to prove that the sppellant’s care needs cannot be met in South Africa. There was insufficient evidence as to what particular steps had been taken to obtain a place at a care home elsewhere in that country even if one was not available in her home area. In so far as it was being suggested that a care home was not a viable option and so the appellant would need to be cared for in her own home, what the FTT had relied on was far too generalised and sweeping: he had suggested that in effect South Africa is so dangerous a country that no one could receive care at home because no one coming in to care for them could be trusted.

That having been said, his Lordship moved on to dismissing the appeal on article 8. He put centre stage UTJ Clive Lane’s findings that Ribeli’s counsel’s letter sealed her fate and doomed her prospects of success in any event. The letter, which was no doubt written with the best of intentions, expressly said that the daughter would have to exit the UK to care for the mother unless the latter’s application for entry clearance as an ADR was approved. This essentially communicated a willingness on the part of the UK sponsor to move to South Africa in order to care for her mother if necessary. UTJ Clive Lane used this as a peg to judge the outcome and held that there was no disproportionate breach of article 8 rights.

In response, Ribeli’s counsel tried to cherry pick parts of the mother and daughter’s witness statements to show that they were unhappy with the latter having to abandon her professional life in the UK to return to South Africa. The daughter said in her witness statement that crime rates in South Africa are exceptionally high and obtaining private care for “for my mother in her own home is not an option that either of us feel comfortable with.” Of course, Singh LJ’s analysis of the situation was entirely different yet again:

67. However, it is important to recall that the test under article 8 is an objective one, whatever the subjective feelings of a person may be. That is not to criticise Ms Steenkamp: for understandable reasons she wants to continue to have the professional and social life she has built up in the UK and does not wish to return to South Africa. However, that does not come close to establishing that the respondent’s refusal to grant the appellant entry clearance constitutes a disproportionate interference with article 8 rights.

Yet again things boiled down to the application of the unhelpful decision in Kugathas [2003] EWCA Civ 31 whereby there is no relevant family life for the purpose of article 8 simply because there is a family relationship between two adults (such as a parent and her child) who live in different countries. Significantly, there has to be something more than normal emotional ties. In the instant case it was said that the mother needed to be near her daughter for her to receive the necessary care and support.

Key in Singh LJ’s reasoning was the “crucial point” – dually attractive in law and as a matter of common sense – that the “daughter could reasonably be expected to go back to South Africa to provide the emotional support her mother needs as well as to provide practical support.” According to the court, any concerns regarding finding trustworthy people to care for Ribeli were neither here nor there. Her daughter was in a position to relocate permanently to South Africa to supervise the care arrangements made for her mother.

Therefore, UTJ Clive Lane had quite rightly noted that the daughter had a choice – arguably an invidious one – to remain and work and live in London or to return South Africa to care for her mother. It was not possible to fault the judge on that point because the interference with family life complied with the principle of proportionality. Equally, in striking the right balance, it was necessary to give “appropriate” or “due” weight to what the public interest requires. The Court of Appeal concluded in light of Hesham Ali [2016] UKSC 60 (see here), Huang [2007] UKHL 11 and Agyarko [2017] UKSC 11 (see here) that depending on the context the weight which is appropriate or due may be “considerable” weight. Looked at in light of the foregoing, the appeal on article 8 fell to be dismissed.

Comment

For now, the ADR rules are here to stay and the strictness of this ruling represents yet another facet of the harshness of the system created by Appendix FM. Interestingly, the Supreme Court refused permission to appeal in BritCits on 14 December 2017 because “the application does not raise an arguable point of law which ought to be considered at this time”. But as the stockpile of immigration judgments rapidly building up in the apex court shows, the mysteries hidden in the rules are part of a never-ending saga which refuses to die down so easily. Significantly, while refusing permission Lady Hale, Lord Sumption and Lord Lloyd-Jones did tie their decision to the caveat that the overall context of the rules for ADRs “may well raise a point which ought to come here on a particular set of facts (or sets of facts).” So with that in mind, perhaps the end of the line has not arrived just as yet.

Singh LJ made no secret of the fact that this was a pretty flimsy case to fight on the facts. For example, the appellant was only 65 years of age which is still arguably young by British and European standards. Indeed, her counsel’s well-intentioned letter did not help the situation because it flatly conceded that there was nothing of substance stopping the daughter from moving back to South Africa to care for her mother. Overall, save that Carmen Steenkamp was confronted with making the invidious choice of leaving the UK, the facts did not involve the displacement of any British children or partner. In fact, the only thing that hung in the balance was her “private life, built up over many years” as stated in the letter of representation provided to the ECO.

Whatever the Court of Appeal’s view on the entry and residence of ADRs, it is clear that the Supreme Court’s doors remain open to hearing cases concerning these deeply controversial rules and it would be surprising if Ribeli’s lawyers elect to decline the Justices’ express invitation to be provided a set of facts to work with. Rather than making bad law by wastefully judging the type of pointless generic challenge that featured in the BritCits litigation, the Supreme Court is understandably keen to make good law instead. So even after Singh LJ’s onslaught there is still a glimmer of hope for the future and things are not as black and white as he has made them out to be after all.

In contrast to BritCits, in MM (Lebanon) & Ors [2017] UKSC 10 (see here) the Supreme Court did not hesitate to grant permission to generic claims – where no applications had been made by the original claimants – presumably because the victims of the Minimum Income Requirements were readily identifiable affected persons and not merely just an organisation campaigning for the greater good. (Equally, the case of SS (Congo), which originated as a tribunal appeal was conjoined to proceedings to provide a full picture.) Therefore, since an application was refused in the present case it is probably on a solid footing to proceed for a showdown in the apex court on the ADR rules.

In the present case, the mother’s health predicament was quite serious but she was not a “wheelchair case” or a case where intimate gender specific care had been ongoing between the mother and daughter. But being a “wheelchair case” alone is also probably not good enough to satisfy the strict ADR rules either. A clear and structured account of the degree of dependence written by a professional person who has observed the situation firsthand would be helpful evidence to support the application (and is required by Appendix FM-SE as this case shows). Only a fairly rich person with money to burn would be able to afford such an extravagance.

Readers of this blog have contacted me to narrate horror stories about how they have spent £20,000-£25,000 on trying to have their ADRs admitted to the UK only to have their appeals dismissed by the tribunals (the application fee alone is £3,250). The same people complain that any attempts to secure short term visit visas after the refusals of the applications pursuant to Appendix FM were also subsequently refused. Of course, keeping Singh LJ’s stringent approach in mind, it might be a better idea to get the ADR to come to the UK first and make their case in the UK. But unless the “rigorous and demanding” rules are met coming to the UK to press an ADR application is also bound to be a dead end because winning on freestanding article 8 is very difficult in the “hostile environment”. The only benefit would be that the sponsor and the ADR would remain together while their case is pending. But even then, as shown by Kaur (Visit Appeals: Article 8) [2015] UKUT 487 (IAC), an attempt to enter in that manner is likely to be attacked at the very outset on the basis that the proposed visit is not genuine.

Perhaps, the crucial lesson to learn from this case is that sponsors should not throw the axe at their own feet by conceding in advance – as Carmen Steenkamp had done – that relocation outside the UK is a possibility for them. It is probably much better to say that the sponsor cannot move from the UK and the only solution is for the ADR to be given entry so that they can come to the UK to receive the necessary care. As the Court of Appeal has advised us in this case, evidence is key in that regard and the requirements laid down by Appendix FM and Appendix FM-SE must be mechanically met in order for applicants to be successful.