R (Britcits) v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Sir Terence Etherton, MR,Lord Justice Davis,Lord Justice Sales |
| Judgment Date | 24 May 2017 |
| Neutral Citation | [2017] EWCA Civ 368 |
| Docket Number | Case No: C4/2016/1894 |
| Court | Court of Appeal (Civil Division) |
| Date | 24 May 2017 |
[2017] EWCA Civ 368
Sir Terence Etherton, MR
Lord Justice Davis
and
Lord Justice Sales
Case No: C4/2016/1894
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
ADMINISTRATIVE COURT
MR JUSTICE MITTING
CO/3763/2015
Royal Courts of Justice
Strand, London, WC2A 2LL
Nathalie Lieven QC and Duran Seddon (instructed by The Migrants' Law Project, Islington Law Centre) for the Appellant
Neil Sheldon (instructed by Government Legal Department) for the Respondent
Hearing dates: 3 & 4 May 2017
Approved Judgment
This is an appeal from the order of Mitting J dated 20 April 2016, by which he dismissed the appellant's application for judicial review seeking to quash provisions of the Immigration Rules introduced in 2012 on the admission to the UK of adult dependant relatives ("ADRs") of British citizens, persons settled in the UK and those in the UK pursuant to refugee leave or humanitarian protection ("the new ADR Rules").
The appellant is a United Kingdom charity set up to represent the interests of sponsors and applicants affected by the new Rules on family migration introduced in July 2012 and to campaign to revoke or alter them.
The statutory framework and the new ADR Rules
The Immigration Act 1971 contains the following relevant provisions:
"1. General principles.
(1) All those who are in this Act expressed to have the right of abode in the United Kingdom shall be free to live in, and to come and go into and from, the United Kingdom without let or hindrance except such as may be required under and in accordance with this Act to enable their right to be established or as may be otherwise lawfully imposed on any person.
(4) ….The rules laid down by the Secretary of State as to the practice to be followed in the administration of this Act for regulating the entry into and stay in the United Kingdom of persons not having the right of abode shall include provision for admitting (in such cases and subject to such restrictions as may be provided by the rules, and subject or not to conditions as to length of stay or otherwise) persons coming for the purpose of taking employment, or for purposes of study, or as visitors, or as dependants of persons lawfully in or entering the United Kingdom."
"3. General provisions for regulation and control.
(2) The Secretary of State shall from time to time (and as soon as may be) lay before Parliament statements of the rules, or of any changes in the rules, laid down by him as to the practice to be followed in the administration of this Act for regulating the entry into and stay in the United Kingdom of persons required by this Act to have leave to enter, including any rules as to the period for which leave is to be given and the conditions to be attached in different circumstances; and section 1(4) above shall not be taken to require uniform provision to be made by the rules as regards admission of persons for a purpose or in a capacity specified in section 1(4) (and in particular, for this as well as other purposes of this Act, account may be taken of citizenship or nationality)."
Until 9 July 2012, the Immigration Rules made pursuant to section 1(1) of the 1971 Act permitted the admission of ADRs largely on the basis of their financial dependency on UK sponsors and upon their having no other close relatives in their country to whom they could turn for financial support.
As from 9 July 2012 the right of an ADR to apply for indefinite leave to enter is now contained in section E-ECDR 2.1 to 2.5 of Appendix FM to the new rules. They provide as follows, so far as relevant:
"E-ECDR.2.1. The applicant must be the—
(a) parent aged 18 years or over;
(b) grandparent;
(c) brother or sister aged 18 years or over; or
(d) son or daughter aged 18 years or over,
of a person ('the sponsor') who is in the UK.
…
E-ECDR.2.3. The sponsor must at the date of application be—
(a) aged 18 years or over; and
(b)
(i) a British Citizen in the UK; or
(ii) present and settled in the UK; or
(iii) in the UK with refugee leave or humanitarian protection.
E-ECDR.2.4. The applicant or, if the applicant and their partner are the sponsor's parents or grandparents, the applicant's partner, must as a result of age, illness or disability require long-term personal care to perform everyday tasks.
E-ECDR.2.5. The applicant or, if the applicant and their partner are the sponsor's parents or grandparents, the applicant's partner, must be unable, even with the practical and financial help of the sponsor, to obtain the required level of care in the country where they are living, because—
(a) it is not available and there is no person in that country who can reasonably provide it;
or;
(b) it is not affordable."
Immigration Directorate Instructions ("the Guidance") contain the following relevant guidance to the new ADR Rules at 2.2.2. with effect from 13 December 2012:
" 2.2.2 Unable to receive the required level of care in the country where they are living
The ECO [Entry Clearance Officer] needs to establish 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. This could be because it is not available and there is no person in that country who can reasonably provide it, or because it is not affordable. The evidence required to establish this is set out below. If the required level of care is available or affordable, the application should be refused.
2.2.3 No person in the country who can reasonably provide care
The ECO should consider whether there is anyone in the country where the applicant is living who can reasonably provide the required level of care.
This can be a close family member:
Son
Daughter
Brother
Sister
Parent
Grandchild
Grandparent
or another person who can provide care, e.g. a home-help, housekeeper, nurse, carer, or care or nursing home.
If an applicant has more than one close relative in the country where they are living, those relatives may be able to pool resources to provide the required care.
The ECO should bear in mind any relevant cultural factors, such as in countries where women are unlikely to be able to provide such support."
The background to the new ADR Rules
The formulation of the new ADR Rules was preceded by a wide consultation exercise. In July 2011 the Home Office published a consultation document entitled 'Family Migration: A Consultation'. One of the issues on which contributions were sought was whether consideration should be given to "whether there are other ways of parents or grandparents aged 65 or over being supported by their relative in the UK short of them settling here." The consultation closed in October 2011, and on 11 June 2012 the Home Office published a response. At paragraph 5.3 it was recorded that 42% of respondents agreed that consideration should be given to other ways of relatives supporting their parents or grandparents overseas. The same proportion (42%) disagreed.
On 11 June 2012 the Home Office also published a document entitled: "Statement of Intent: Family Migration", which set out new policies on family migration in light of the consultation, to be reflected in changes to the Immigration Rules: paragraphs 118–125 set out the new approach towards ADRs. So far as relevant, they said as follows:
"Adult Dependent Relatives.
118. The new Immigration Rules will change the basis on which non-EEA adult dependent relatives can settle in the UK, in view of the significant NHS and social care costs to which these cases can give rise.
…
121. We will end the routine expectation of settlement in the UK for parents and grandparents aged 65 or over who are financially dependent on a relative here. Non-EEA adult dependent relatives will only be able to settle in the UK if they can demonstrate that, as a result of age, illness or disability, they require a level of long-term personal care that can only be provided in the UK by their relative here and without recourse to public funds.
122. In particular, this will mean:
• The applicant must, as a result of age, illness or disability, require long-term personal care: that is help performing everyday tasks, e.g. washing, dressing and cooking;
• The applicant must be unable, even with the practical and financial help of the sponsor, to obtain the required level of care in the country where they are living because it is not available and there is no person in that country who can reasonably provide it, or because it is not affordable there.
• The entry clearance officer must be satisfied that the applicant will be adequately maintained, accommodated and cared for in the UK by the sponsor without recourse to public funds."
On 13 June 2012 the Home Office published an Impact Assessment analysing the likely impact of the changes to the family migration rules laid before Parliament on that day. The Impact Assessment addressed, among other things, the impact of: "For adult/elderly dependants, closing the route to in-country switching and requiring all overseas applicants to demonstrate they require long-term personal care that can only be provided by a relative in the UK." The Impact Assessment set out the anticipated costs and benefits of that proposal, including the likely reduction in public service provision.
On 13 June 2012 the Home Office published a statement with the title, "Immigration Rules on Family and Private Life: Grounds of Compatibility with Article 8 of the European Convention on Human Rights". The statement addressed the changes to the rules concerning ADRs (at paras. 81–86), and expressed the conclusion that, in the view of the Home Office, the new ADR Rules were compatible with Article 8.
Also on 13 June 2012...
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