Commentary
If, which is not clear, medical evidence that assists in the application of the adult dependent relative provisions as to entrance clearance for dependent adults to enter the UK is usually provided by doctors in the country in which the dependent relatives reside, this judgment may be of little interest to healthcare experts in the UK. However, it makes a very basic point about the format of an expert report and it illustrates how important it is to know and understand the particular test or rule that is applicable.
In the case of the first dependent relative, there was no medical evidence. In the case of the second dependent relative, although there was psychiatric evidence, it was not sufficiently detailed for her personal care needs to be established.
Learning points
General
In the application of the adult dependent relative provisions as to entrance clearance for dependent adults to enter the UK
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The test is whether as a result of age, illness or disability the dependent relative requires long-term personal care to perform everyday tasks.
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In any such case it is advisable for there to be medical evidence from an appropriately qualified expert.
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Appropriate evidence is central to the ability of an ADR applicant to succeed on emotional or psychological grounds.
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It is not sufficient to refer to care needs; it is necessary to particularise them and with sufficient detail for it to be clear whether there is a requirement for (a) long-term 9B0 personal care to preform everyday tasks.
Case
The appellants in these proceedings were husband and wife and were born in 1952 and 1955 respectively. They are citizens of Pakistan, where they live together. They live alone as a couple but are assisted from time to time by visits from their adult children who reside in the United Kingdom. They have daily assistance from a maid, who attends most days from 9 am until 12 pm or 1 pm. Friends of the family in the region also provide them with assistance. On 21 April 2021, they applied for entry clearance under what were then the adult dependent relative provisions of Appendix FM of the Immigration Rules (Part E-ECDR) (‘the ADR rules’). Their applications were refused by the Entry Clearance Officer who did not accept that either appellant required, "as a result of age, illness or disability... long-term personal care to perform everyday tasks", nor that they would be unable, even with the practical and financial help of their sponsor (namely their son and other children residing in the United Kingdom) to obtain the required level of support in Pakistan. The maintenance requirements were not met, and there were no exceptional circumstances such that it would be unjustifiably harsh to refuse the applications. The appellants appealed against the refusal.
The first appellant is deaf and mute and has been since birth. He has a number of health and mobility conditions which mean that he is unable to walk unaided, and has been reliant on the second appellant, his wife for his care. Unfortunately, his health has been deteriorating at pace since 2019, following a fall which resulted in him needing an operation to his skull. The procedure left him weak, and he has to endure pain in his lower back and legs. He cannot walk unaided, needs the assistance of the stick or another person.
The second appellant also lives with a number of health conditions. She is recovering from gallbladder surgery, has been diagnosed with morbid obesity, and is said to be generally weak due to her age. She experiences back pain, high blood pressure, joint pain and has difficulty breathing. She also experiences anxiety and has had falls of her own in the past. She provides what care that she can to the first appellant, but following the deterioration of his health, his needs have become more challenging and she is now unable to meet them.
Grounds of appeal included failure to regard material matters and failure to address the appellants' emotional needs.
Expert evidence
There was a psychiatric report before the judge. It primarily addressed the needs of the second appellant (the wife). It did not have page numbers or paragraphs, so the judge had to cite unreferenced extracts from it.
The report commenced by setting out the account the second appellant had provided to the psychiatrist, namely that she is emotionally dependent on her children in United Kingdom, and other matters. The psychiatrist had been referred to a number of the second appellant's medical records, none of which addressed her emotional or psychological needs. Under the heading "mental state examination", the psychiatrist stated that the second appellant presented as being poorly orientated in time but good in relation to place and person. She did not present with any delusions or paranoia, or formal thought disorder. There was no evidence of any perceptual abnormalities. As for her mental health presentation, the psychiatrist stated that she was presenting with symptoms of anxiety, which augmented when she was unable to contact her children. She presented with mild dementia and, stated the report, "she will require family support well treated for this condition, as it will deteriorate with time due to its progressive nature." The report outlined the prospective cognitive decline of the second appellant and recommended that she should be treated by an appropriate expert with knowledge of anxiety, adding that she could be managed through medication and through lifestyle adaptation. Looking ahead, the psychiatrist said that the second appellant would, in time, be unable to look after the first appellant.
Decisions
As to a failure to regard material matters, the court noted that the first appellant can only walk when aided by stick or assisted by someone to walk. In isolation, this established little. Since the extract quoted established that the appellant is able to walk with a stick, it was difficult to see how the judge fell into error by not ascribing any significance to it. This facet threw into sharp relief the need for proper medical evidence to support a claim of this nature, rather than the subjective (if entirely understandable) evidence of non-medically qualified family members. The first appellant needs aid when walking to the bathroom. Since he is able to walk with a stick, it was difficult to see how this extract from the children’s joint statement took matters any further. The paragraph continued by stating that the first appellant has a seat for bathing himself and is able to do so without assistance. Similarly, the second appellant, the statement confirmed, was also able to bathe herself. Again, even taken at its highest, this extract does not get remotely close to establishing the first limb of the ADR rules (as a result of age, illness or disability requiring long-term personal care to perform everyday tasks).
The joint statement outlined the first appellant's communication needs. He plainly has profound communication needs, and the second appellant, perhaps better than anybody else, has developed ways to communicate with him and understand communication he is seeking to convey. But this did not establish how the first limb of the ADR rules was met. The second appellant lives with the first appellant and is able to understand and communicate with him. It was not clear how the lifelong communication and hearing difficulties the first appellant has always experienced could now, in isolation, be said to meet the first limb of the ADR rules, on the basis of this evidence. Again, this underlined the need for medical evidence from an appropriately qualified expert. While the psychiatrist’s report stated that the second appellant's health may deteriorate in the future, that did not demonstrate that the judge erred by reference to the position pertaining at the date of the hearing, on the basis of the evidence that was before him. This ground was without merit.
Failure to address the appellants' emotional needs
This ground was based on extracts from BRITCITS v The Secretary of State for the Home Department [2017] EWCA Civ 368 per Sir Terence Etherton MR. The Court of Appeal dismissed a challenge to the ADR rules as then in force, and in doing so made the following observations about the flexibility of the rules and their scope. The first extract is at para. 59:
"[The ADR rules] are capable of embracing emotional and psychological requirements verified by expert medical evidence. What is reasonable is, of course, to be objectively assessed."
The second is at para. 76:
"Contrary to the submission of the appellant, those considerations are capable, with appropriate evidence, of embracing the psychological and emotional needs of elderly parents."
It is important to note that in the case of each quote, the need for appropriate evidence is central to the ability of an ADR applicant to succeed on emotional or psychological grounds.
In the court’s judgment, the judge adequately considered the psychiatric report. He did not fall into error on account of his treatment of it. As the judge noted, the report said that there were care needs that both appellants did have, but did not address in terms what they were. It was precisely that rather muted conclusion that led to the judge's overall conclusion that the evidence did not demonstrate that either of the appellants were in need of long-term personal care to perform daily tasks.
Returning to this ground as pleaded, in order for the appellants to have succeeded on the basis that they needed the long-term emotional support of their children, consistent with BRITCITS, they would have required appropriate medical or expert evidence. There was some medical evidence before the judge, but for the reasons he explained, it did not support that conclusion. In the court’s judgment, the judge was entitled to approach the medical evidence in that way, for the reasons he gave.
For those reasons, the judge did not err in relation to his treatment of the appellants' emotional needs. It is difficult to see how the evidence before him, even taken at its legitimate highest, could have merited the conclusion which the appellants now contended that the judge erred by not reaching.
The appeal was dismissed.