The schemes in certain ways reflect the “free movement” rights which are still available to EEA nationals and certain family members.
Recently Bates Wells have been helping a family in a tight corner. An Irish/US national Mum and her US national adult son had sought unsuccessfully to apply for a permit for him to stay in the UK, relying upon the UK’s Immigration Rules for “Adult Dependent Relatives”. Irish nationals living in the UK are historically deemed to enjoy the equivalent of “indefinite leave to remain” and can therefore sponsor applications by family members and partners under the UK’s Immigration Rules. The catch being however that the criteria for success under these Rules are incredibly stringent for adult dependent relatives.
The family had not realised the importance of Mum’s Irish nationality under EU law, and now the Settled/Pre-settled status schemes.
An application was then made under the schemes and following recognition of Mum’s “settled status” an application was made for recognition of pre-settled status for her 40 year old son. He now lives with her here in the UK. He has a diagnosis of Paranoid Schizophrenia. Crucial was the issue of his “dependency” upon her.
Happily the Home Office have accepted that in this case we could show “dependency” and the applicant now can reside here with his Mum, and will go on to secure Settled Status in due course.
To succeed it was necessary to amass evidence of that dependency, and to broaden the question beyond mere finances. All of that evidence had to be uploaded to the Home Office’s digitised system – a huge project in itself. The relevant Home Office Guidance makes clear that eligible family members of relevant EEA citizens include adult dependent children.
Dependency is defined by the Guidance as follows:
“Dependent” means that, as demonstrated by relevant financial, medical or other documentary evidence:
- Having regard to their financial and social conditions, or health, the applicant cannot, or for the relevant period could not, meet their essential living needs (in whole or in part) without the financial or other material support of the relevant EEA citizen…
- Such support is, or was being provided to the applicant by the relevant EEA citizen…
- There is no need to determine the reasons for that dependence or for the recourse to that support”.
The guidance goes on to recognise that the relevant evidence of dependency might include “for example, financial evidence of dependency, such as bank statements or money transfers to the applicant from the relevant EEA citizen….” But importantly also “Evidence that the applicant needs and receives, (or for the relevant period did so) the personal care of the EEA citizen……on serious health grounds, for example a letter from a hospital consultant”
It was medical evidence in conjunction with a really careful explanation of the family’s history, and full detail of day to day expenses which satisfied the Home Office. It’s good to see that the Schemes, for all their faults, can deliver the right result if used properly.
This information is necessarily of a general nature and doesn’t constitute legal advice. This is not a substitute for formal legal advice, given in the context of full information under an engagement with Bates Wells.
All content on this page is correct as of October 10, 2019.