Can immigration lawyers win against immigration bureaucracy?

Last year, Kadmos immigration lawyers celebrated success winning a very complex appeal in the Upper Tribunal. The appeal concerned refusal of an adult dependent relative visa and subsequent refusal of the appeal by the First tier tribunal. Our lawyers were instructed to advise on the merits of appealing against the decision of the first tribunal after the previous lawyers found no merit in the appeal.

Apparently, there was merit since the Upper tribunal found in our client’s favour.

The facts of the case were not so unusual. Adult Dependent Relative a Ukrainian woman from Kyiv. Her daughter was a naturalised British citizen, a medical doctor who had completed her training in the UK and worked for the NHS.  The mother was in her early sixties, widowed and had recently retired. She missed her job, and her daughter, and was finding it difficult to adjust to retirement. She didn’t have any physical disabilities but she developed serious mental health problems and acute depression. She lost interest in life, stopped socialising and was generally feeling low. The doctor told her daughter – your mother needs family, children, grandchildren to look after, noise, laughter, everyday tasks that would fill her day.Adult dependent relatives

Her daughter brought her to the UK for visits, but this only helped temporarily. As soon as the mother returned home, she would lose all motivation and interest in life. The daughter decided to bring her to the UK for good and made an application for the adult dependent relative visa.

These applications take notoriously long time even by the Home Office standards. A year on, a decision was made but, as in majority of such cases, the Home Office entirely missed the point. Their refusal letter said that psychiatric support is available in the country of origin and that dispensed of the case. The client appealed. Months passed. Finally, the case was listed to be heard in the First-tier tribunal.

After the hearing, the First-tier tribunal judge reserved the decision.  There was a further delay that apparently was just a drop too much for the appellant. Her condition deteriorated to the point that on the eve of her birthday she tried to commit a suicide. She was taken to a hospital in Kyiv. Her daughter urgently travelled to Ukraine. It was 23 February 2021. The day after Russia invaded Ukraine and the war began.

When she was discharged from hospital, our client came to the UK with her daughter relying on the newly set Ukraine family scheme which opened to support people seeking refuge from the atrocities of the war.

In the meantime, the First-tier tribunal judge reached a decision that in the absence of any physical disabilities care needs did not meet the requirements of the immigration rules and dismissed the appeal.

That was the point when the client contacted Kadmos lawyers for a second opinion. Was it possible to pursue the appeal if the appellant was already in the UK? Was there merit in the appeal? Was it possible to rely on the chain of events postdating the hearing in the First-tier tribunal? Was there benefit in pursuing the Adult Dependent Relative route when the client had leave to remain under the Ukraine scheme.

There was clearly a benefit in the adult dependent relative visa. Ukraine scheme is a temporary option for people who fled Russian aggression and were only waiting to return home as soon as the invasion was repelled.  Adult Dependent Relative visa offered permanent settlement. It would give the appellant unconditional right to stay in the UK with her daughter and a degree of stability that was so important for her mental health.

We advised the client to pursue the appeal to the Upper Tribunal. By then the appeal was out of time, but we were granted permission exceptionally. Our incomparable barrister, Charlotte Bayati, represented the appellant and the light dawned on the Upper Tribunal. The decision of the First-tier tribunal was overturned and with the clear and detailed directions of the Upper Tribunal judge it was made obvious that psychological needs had to be taken into account in the same way as physical needs. The Home Office reviewed their decision in light of this judgment and told us the decision was reversed. In other words, the visa was to be issued!

That is where bureaucracy braced up not to allow things look to simple.

The Home Office next wrote to us saying that the Adult Dependent Relative visa may only be issued abroad. Since our client is now in the UK, she will have to leave the country to collect her visa. It is accepted that travelling to Kyiv in the current circumstances is complicated, so why doesn’t she collect her visa from Paris?

By then, the Home Office must have forgotten that the reason for issuing the visa was that the appellant was unable to live independently. She was certainly unable to go to Paris on her own. Her daughter had to take time off from her super busy NHS job and travel to Paris with her mother in order to get a stamp in the passport. How long would they have to stay in Paris? Would the daughter have to take an open leave from work? How can they book a return ticket if they don’t know how long they will have to stay?

At this stage, I suggested that the client should contact their MP. After all, the whole scenario sounded like a poor joke. Why would someone have to travel from Cambridge to Paris to get a UK visa stamp in their Ukrainian passport? Perhaps the passport could be stamped somewhere nearer home?

Member of Parliament came back with a negative answer. A stamp confirming grant of an Adult Dependent Relative visa can only be endorsed in the passport outside the United Kingdom. These are the rules designed to protect the integrity of our immigration system.

How about carbon footprint? Two people will have to travel a distance over 300 miles and back for a stamp? Are we sure we are not in a Kafka novel? Is global warming no more a concern? Would cancer patients understand that the doctor has to travel abroad to collect a stamp?

The problem is that global climate change is in the ambit of one department. The NHS is in the ambit of another department. And the department that stamps passports is only concerned about the bureaucratic safeguards for the right place of stamping passports. The thinktank which tackles environmental concerns does not sync with the immigration department.

Can an immigration lawyer help to bridge this gap?

Till now, negotiations are underway. Our client is preparing for her trip to Paris and the Home Office is making the preparations to execute the endorsement in a manner as efficient as possible so that our client may not have to stay in Paris overnight.

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