Ribeli v Entry Clearance Officer, Pretoria

For entry clearance as an adult dependent relative, the applicant bears the burden of proving that, even with the sponsor’s practical and financial help, the required level of care cannot be obtained in the country of residence.

The test is rigorous and demanding. Independent evidence must address the relevant geographical scope. Local evidence and generalised assertions about danger or unreliable care are insufficient. Medical evidence may encompass emotional and psychological needs, but those needs must be shown as part of the required care. Under Article 8, adult family relationships require more than normal emotional ties. Proportionality is assessed objectively, and a sponsor may reasonably be expected to return to provide or supervise care.

The appellant, a South African national with significant medical conditions, applied for entry clearance to join her British-citizen daughter in the United Kingdom as an adult dependent relative. The Entry Clearance Officer refused the application under Appendix FM of the Immigration Rules, finding insufficient evidence that the required care was unavailable in South Africa.

The First-tier Tribunal allowed the appeal under the Rules. The Upper Tribunal set that decision aside for material errors of law and dismissed the appeal under the Rules and under Article 8. The appellant appealed to the Court of Appeal on three issues: whether the First-tier Tribunal had erred in law, whether the Upper Tribunal had erred in remaking the decision under the Rules, and whether its Article 8 assessment was flawed.

1. Disposition. The appeal was dismissed. Ground 5, challenging the lawfulness of the adult dependent relative provisions, was formally dismissed because that issue had already been resolved by R (BritCits) v Secretary of State for the Home Department [2017] EWCA Civ 368.
2. Error of law. The Upper Tribunal was entitled, and correct, to set aside the First-tier Tribunal’s decision. The First-tier Tribunal had treated the Entry Clearance Officer’s reasoning as false when it was reasonable to seek clarification of the appellant’s day-to-day care needs. Its abstract discussion of unmet needs was unsupported by evidence. The evidence concerning care homes and the GP’s letter addressed the Table View area, not Cape Town or South Africa generally. There was also no independent evidence supporting the broad conclusion that care in South Africa would be wholly unreliable.
3. Immigration Rules. The burden lay on the appellant to establish every requirement of Appendix FM and Appendix FM-SE. The test was rigorous and demanding. The appellant had not produced independent evidence that, even with her daughter’s practical and financial assistance, the required care was unavailable in South Africa. Her physical care needs remained insufficiently proved. Her emotional needs were relevant principally because unmet emotional support might worsen her physical condition; anxiety and mild depression alone did not establish an inability to receive care in South Africa.
4. Article 8. Article 8 is assessed objectively. A relationship between adult relatives living in different countries requires more than normal emotional ties: Kugathas v Secretary of State for the Home Department [2003] EWCA Civ 31. The daughter could reasonably be expected to return to South Africa to provide emotional and practical support or supervise care. Her wish to continue living and working in London did not make refusal disproportionate. Appropriate weight, potentially considerable weight depending on context, was due to the public-interest assessment of the Secretary of State and Parliament, as recognised in Ali, Huang and R (Agyarko).

Lady Justice Hallett agreed with Lord Justice Singh.

• Court of Appeal (Civil Division) — appeal dismissed: [2018] EWCA Civ 611.
• Upper Tribunal (Immigration and Asylum Chamber) — decision dated 20 January 2016; set aside the First-tier Tribunal’s determination and dismissed the appeal under the Immigration Rules and Article 8.
• First-tier Tribunal — determination dated 31 March 2015; allowed the appeal under the Immigration Rules.