Sponsors don’t need to relocate to look after elderly parents

Danielle Cohen
By Danielle Cohen Immigration Law Solicitor Linkedin
Danielle Cohen has over 20 years of experience as a lawyer and a reputation for offering professional, honest and expert advice.
17 February 2022

We acted on behalf of an appellant who is an elderly man from South Africa who wanted to join his daughter in the UK. The application was made under the Immigration Rules applicable to the adult dependent relative. The appellant was almost 91 years old and following the original refusal of the application we attended court to appeal. We particularly disagreed with the respondent’s position that the appellant’s daughter could relocate to South Africa to look after her father. We submitted it would be unreasonable to expect her, the sponsor in this case, to abandon her home with her husband, to stay with her father. The interesting and upsetting aspect of this case was that the application was considered by the entry clearance officer under Appendix FM of the Immigration Rules and it was accepted that the appellant satisfied the suitability requirements, and the eligibility requirements, that as a result of age, illness or disability he required long term personal care to perform everyday tasks. That was never in dispute. However, the respondent was not satisfied that the appellant was unable to obtain the required level of care in the country in which he was living, South Africa. He took account of the appellant’s statement at the time that his sponsor could not visit him due to the current travel restrictions, but decided that the appellant had not demonstrated that it would be unreasonable to expect the sponsor to relocate on a long-term basis to be with him. The entry clearance officer noted that the sponsor and the partner are British citizens, and that the sponsor’s partner was working in the UK, but these factors in isolation did not demonstrate that it would be unreasonable for them to relocate away from the UK to look after the appellant.

The entry clearance officer concluded that there were no exceptional circumstances under paragraph GEN.3.2 of Appendix FM which would render the refusal a breach of Article 8 because it would result in unjustifiably harsh consequences for the family. Upon service of the appeal skeleton the respondent carried out a review. Our argument was that the appellant is entitled to succeed if relevant treatment would be either unavailable, or there is no person in that country who can reasonably provide it, or it is unaffordable. In the present case the issue of affordability was not relevant.  However, the Judge found that at the time of the application the appellant’s sponsor had been unable to visit him due to the travel restrictions. She has since travelled to be with him in South Africa but this was only a temporary arrangement in anticipation that she would be there until his visa was granted and Covid travel restrictions lifted. The sponsor cannot be expected to remain away from her husband for a very long period of time and her husband cannot relocate to South Africa on a long term basis due to his work commitments. It was found that the sponsor would face unjustifiably harsh consequences by being kept apart from her husband and the appellant would face unjustifiably harsh consequences when his daughter can no longer care for him.

Our appeal was successful, and the appellant was notified of the decision a day after his 91st birthday. He is now on his way to be reunited with his family.