Adult Dependent Relatives -

Problem

A Chinese woman who had naturalised as a British Citizen had invited her parents to visit and during the holiday, her mother collapsed. She had Stage 4 cancer. Her husband who had depended on her, was too forgetful to be relied upon.

An application for Leave to Remain as the Adult Dependent Relative was lodged in December 2019 on the basis of treatment funded privately by our client. Additionally, we supplied a cognitive assessment for the husband, and a systemic report into the interdependence of the family members. These were provided by qualified professionals who were native Mandarin speakers.

The evidence showed that the mother was dying and that the father had moderate cognitive impairment and severe depression.

Generally applicants must apply for a visa from outside the United Kingdom and must prove that they are

“ 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.”

The application was refused in February 2021 on the basis that medical care existed in China. The sponsor gave birth to a child in March . The mother died in June. The appeal was heard at the start of October. As the sponsor lived in a same sex relationship, the child had two mothers on the birth certificate. The child was a British Citizen.

Strategy

An appeal was lodged.

The psychologist who had provided the report on the father was unable to assist further on account of bereavement.

Another mandarin speaking psychologist had to be instructed who herself required a preliminary assessment by a consultant geriatrician. At the same time the original systemic therapist , was instructed to review the family’s state of being since his report eighteen months previously.

In the midst of so arranging , our client’s mother died. The question on appeal now became whether it was reasonable for the father to return to China.

How reasonable it would be , would depend on whether he would be expected to return alone, and if so the treatment he would face, or whether he would be accompanied by his daughter.

The Chinese Nationality Law was produced to show that the Sponsor had by virtue of acquiring British Citizenship, lost her Chinese Nationality.

An Academic report described how access to social care would be defined by the local area where a person was registered ( their hukou.) Medical care in their locality had to be assessed. It further added that no hukou would be offered to a child with both parents of the same sex, and to whom all access to schooling and health care would be denied. Even if admitted to China to accompany her father, the Sponsor would be faced with the prospect of her child then being denied basic access to social and economic rights.

So our client would be returned alone.

However he would not be given access to health care, because he is registered as having a daughter. And so our client would face destitution, whilst the psychological reports revealed that he was unfit to give evidence and the systemic reports revealed him to be a suicide risk.

Solution

The Appeal was allowed. The Judge took particular note that the various medical assessments had been undertaken in the mother tongue.

Cognitive assessments may include timed responses, whose reliability is lost where there is the intermediary of interpretation. Speaking directly to these elderly relatives, prevented any distortions that may arise unnoticed, where a professional is dependent upon an interpreter’s capability.

The  medical assessments had greater weight because they had been initially undertaken at the time of application thereby demonstrating a continuity in decline.

But proof of ill heath is insufficient, as inaccessibility to medical treatment must also be shown. Further specific evidence had to be obtained to show likely neglect at the locality of where our client was to be returned to, and why his daughter could not accompany him.

The events reflect the sponsor’s determination for her father, despite the many obstacles she faced. It also reflected the commitment of clinical practitioners who themselves facing entrenched pressures on account of the concurrent pandemic,  were timely and authoritative . This case illustrates  how the Immigration Rules are themselves constructed to refuse and offer an approach on how to address them.

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