A recent Court of Appeal decision in the case of Mohamed v Secretary of State for the Home Department  EWCA Civ 331 (20 March 2012) considered the correct interpretation of Paragraph 317(i)(e) of the Immigration Rules and may well affect the future outcome of the applications made by elderly dependants seeking indefinite leave to remain in the United Kingdom.
The Paragraph provides for; ‘indefinite leave to enter or remain as the parent, grandparent or other dependent relative of a person present and settled in the United Kingdom.’ In order to qualify in this category, certain requirements must be met, which include that the dependant must be related to the person present and settled in the UK and be over the age of 65.
However, sub-rule (e) makes an exception to this imposed age restriction, by providing that a parent or grandparent under the age of 65 can apply ‘if living alone outside the United Kingdom in the most exceptional compassionate circumstances and mainly dependent financially on relatives settled in the United Kingdom’.
‘Exceptional Compassionate Circumstances’
But what constitutes the ‘most exceptional compassionate circumstances?’ Sir Stephen Sedley comments rather diplomatically in the Court of Appeal judgment that this ‘inelegant phrase’ has already been subject to ‘judicial unpacking’ in the case of Senanayake v Home Secretary  EWCA Civ 1530. In that case, Chadwick LJ paraphrased it as circumstances which evoke compassion in the mind of the decision-maker. However, in Mohamed, Sir Sedley was keen to point out the use of the superlative form implied by use of the phrase ‘the most exceptional’ in the rule, which suggests that the circumstances must be really quite extreme indeed in order to qualify.
As a result of this ill-defined phrasing, an important question of law and a bit of a conundrum has been created: does this exception cover a case whereby the very financial dependency which qualifies a parent or grandparent for entry to the UK is also the obstacle that keeps their circumstances from being the most exceptional compassionate circumstances?
The court needed to determine which question out of the following should be applied when assessing whether an applicant qualifies under 317(i)(e):
- Whether but for the support provided by relatives settled in the UK, would the applicant be living in the most exceptional compassionate circumstances or
- Whether notwithstanding the support provided by relatives settled in the UK, the applicant is already living in such circumstances.
The first question, the ‘but for’ test, takes support out of the calculation and the second, the ‘notwithstanding’ test, clearly incorporates support into the calculation, suggesting that even with financial support the parent or grandparent must still be in circumstances demanding compassion.
It is clear that the ‘but for’ test is problematic in that it would require the decision-maker to speculate about what the applicant’s circumstances would be if she/he were not receiving the support that he/she is in fact receiving. On this point, the ‘notwithstanding’ test is appealing because it does not require a strained construction of the wording of the sub-rule. As Sir Sedley notes, it does seem that when this test is applied, the two limbs of the sentence cancel each other out (since the whole point of providing financial support will have been to alleviate the applicant’s circumstances). However, as raised by Counsel in the case, circumstances will present themselves in which despite the provision of financial support from the settled family member, the parent or grandparent is still unable to cope on their own; circumstances such as dementia, terminal illness or disability where the most exceptional compassion will be required.
The court concluded that the correct approach was to adopt the ‘notwithstanding’ test, and Sir Sedley’s judgment then moved on to apply this test to the facts in the case.
Azza Aboel-F Mohamed is the mother of Mohammed Allam, a psychiatrist settled and working in the UK. Mrs Mohamed has been widowed since December 2008 and was previously living alone in rented accommodation in Egypt. Her son had sent her sums of money, but since 31 October 2009 she had been living with him and his wife, after entering the country on a visitor’s visa.
In April 2012 she applied for indefinite leave to remain as a dependant relative, but since she was under the age of 65, she could only use paragraph (i) (e) of rule 317 to rely on when making her application (incidentally, Mrs Mohamed will turn 65 in October of this year, making it unnecessary for her to continue to rely on exceptional compassionate circumstances). The Home Office refused her application as it did not consider her circumstances in Egypt to come within the rule, and partly because it considered that she had broken her word about the intended length and purpose of her visit. Additionally, it did not feel that her case fell within either article 3 or 8 of the ECHR.
DUTJ Hemingway in the Upper Tribunal, who dismissed Mrs Mohamed’s case, found that although she suffered from clinical depression of moderate severity and from osteoarthritis of the knees and hips which offered her limited mobility, Mrs Mohamed enjoyed a sufficient net income to employ a home help, and lived in close proximity to friends and relatives.
Her circumstances could clearly be deemed compassionate, but were not found to be exceptionally compassionate, and the Court of Appeal accordingly upheld the decision of the Upper Tribunal. Sir Sedley commented that in this instance, the ruling would be the same whether applying either the ‘but for’ or ‘notwithstanding’ test, due to the amount of net income Mrs Mohamed received. However, he also remarked that it was important the Court had established the ‘not withstanding’ test as being the correct one to use, because in future cases it could be crucial to prove your circumstances are exceptionally compassionate even with the financial support you are already receiving.
The judge also considered Mrs Mohamed’s case under articles 3 and 8 of the ECHR but found that her return to Egypt would not amount to a disproportionate interruption with her ECHR rights.
It is undoubtedly a welcome step that clarification over this sub-rule has been provided, as it is imperative that dependants under the age of 65 looking to acquire indefinite remain to stay in the UK and be reunited with their families know what constitutes ‘exceptional compassionate circumstances’ and whether their situation will be regarded as such.
However, the ‘notwithstanding’ test does seem to create a high threshold in terms of requiring the applicant to be in exceptional circumstances even with financial aid being provided by their family.
Furthermore, in Mrs Mohamed’s case, we find it troubling that had she been ten years younger, she would be relying on sub-rule (i) (e) for the next ten years, throughout which period of time the courts could not have offered her the chance of coming to the UK to live with her son, despite her depression and limited mobility. It is only the fact that she turns 65 this year which will allow her to settle with her son.
We understand the need for immigration controls which regulate how many and which migrants are allowed to come to the UK and settle here. Nevertheless, we are concerned that preventing elderly dependants from joining their families when they do have health issues or are living alone, is unfair. Also, we feel that valuable skilled migrant workers will be less attracted to the idea of working in the UK if it is unclear whether their elderly and vulnerable dependants will be able to join them at some point in the future.
However, this is not to say that all cases will be assessed solely on whether they pass the ‘not withstanding test’ and that the individual circumstances of applicants will be over looked. We encourage individuals who do have genuine compassionate reasons as to why they should be allowed to enter and settle with relatives in the UK, to seek proper legal advice on the best way of presenting their case to the Home Office. This is an area of policy where there is certainly scope for change and we would be most interested to hear from anyone who has been affected by the issues discussed in this blog.