Tribunal decisions

The decision

Case No: JR-2025-LON-000414

IN THE UPPER TRIBUNAL
(IMMIGRATION AND ASYLUM CHAMBER)

Field House,
London, EC4A 1WR

Before:

UPPER TRIBUNAL JUDGE SHERIDAN

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Between:

THE KING
on the application of
Jyotsna Upadhyaya (by her litigation friend Sanjay Upadhyaya)
Applicant
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SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
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Ms Knorr
(instructed by Wilson Solicitors LLP), for the applicant

Ms Anderson
(instructed by the Government Legal Department) for the respondent

Hearing date: 10 October 2025

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J U D G M E N T

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Judge Sheridan:

Background

1. The applicant is a citizen of Kenya born in 1954. She has two siblings in the UK who are British nationals.

2. In March 2021 the applicant applied for a visit visa. The visa was granted and she entered the UK as a visitor in May 2021. The expiry date of the visa was 30 September 2021.

3. On 28 September 2021 the applicant applied for leave to remain in the UK outside the Immigration Rules. The basis of the application stated in the application form was “Medical grounds or ill health”. However, in a detailed letter dated 12 October 2021 (“the application letter”) the applicant’s solicitors explained that the application was made on both medical grounds/ill health and Article 8 ECHR outside the Immigration Rules.

4. In the application letter it is stated that the applicant suffers from dementia, which was diagnosed only after she came to the UK as a visitor. Medical evidence was submitted confirming the dementia diagnosis and expressing the opinion that the applicant needs a considerable amount of support that is currently provided by her family in the UK.

5. In the application letter it is argued that although the applicant cannot switch from having leave as a visitor to having leave as an Adult Dependent Relative (“ADR”), she “squarely” meets the requirements of the ADR Immigration Rules. It is also argued that she should be granted Indefinite Leave to remain (“ILR”) in line with those granted entry clearance under the ADR Rules.

6. Under the subheading “duration of leave”, it is stated:

In all the circumstances of this case, the Applicant submits that the most appropriate duration of leave is ILR. This is because the Applicant meets the ADR rule but for not being outside the UK, for reasons connected to her illness and disability. It is clearly not appropriate to require a highly dependent woman with dementia who clearly cannot manage her own immigration affairs, to apply for further leave, and it is also apparent that her dependency sadly will not resolve.

With respect to the guidance on Article 8 ECHR policy on grants of ILR rather than 30 months leave, the Applicant asks that she is granted ILR and submits that this case is plainly exceptional and, again, that ILR is appropriate given the Applicant’s unique circumstances and disability. There is no rational justification for requiring the Applicant to make repeat applications or to serve any probationary period of leave to remain. As above, the Applicant is not in a position to make such applications and her dependency and need for care will only increase with time. She is already highly vulnerable and insecurity with respect to her immigration status only adds to that vulnerability and places additional burdens on her family without any justification.

7. In a decision dated 17 May 2023 (“the first previous SSHD decision”) the applicant was granted 30 months’ discretionary leave on Article 3 medical grounds. The following reason was given for not granting ILR:

In accordance with the published guidance, your circumstances cannot be distinguished at a high degree from other cases which would make it necessary to deviate from the leave to remain that has been granted. It has therefore been decided that it is not appropriate to grant ILR under exceptional circumstances in this instance.

8. The applicant challenged the refusal to grant ILR in the first previous SSHD decision. On 11 September 2023 the respondent made a decision (“the second previous SSHD decision”) maintaining the first previous SSHD decision.

9. The applicant challenged the second previous SSHD decision. The respondent agreed to reconsider it and on 22 April 2024 made a further decision which reached the same conclusion (“the third previous SSHD decision”).

10. The applicant challenged the third previous SSHD decision; and again the respondent agreed to reconsider her decision. The reconsidered decision, made on 12 November 2024 (“the SSHD decision”), maintained the decision to refuse to grant ILR. It is the challenge to the SSHD decision that is now before me.

The SSHD decision

11. The SSHD decision maintained the decision to grant the applicant discretionary leave for 30 months and to not grant her ILR.

12. It is noted in the SSHD decision that the respondent’s guidance on medical claims under Articles 3 and 8 states that where immediate settlement is considered reference must be given to the respondent’s policy on granting longer periods of leave in her Discretionary Leave guidance (“the DL Guidance”).

13. The following section of the DL Guidance is set out in the SSHD decision:

There may be cases where a longer period of leave is considered appropriate, either because it is in the best interests of a child (and any countervailing considerations do not outweigh those best interests), or because there are other particularly exceptional compelling or compassionate reasons to grant leave for a longer period (or ILR). In cases not involving children (as the main applicant or as dependants), there must be sufficient evidence to demonstrate that the individual circumstances of the case are not just unusual but can be distinguished to a high degree from other cases to the extent that it is necessary to deviate from a standard grant of DL under this policy.

14. The respondent did not accept that the conditions in the DL Guidance for a grant of ILR were met because the applicant (a) does not face removal and can remain in the UK and continue to receive support from her family; (b) is not restricted from accessing public funds or NHS treatment; (c) has family (and representatives) who can assist her with further applications for leave; and (d) will not face any practical hardship arising from having limited leave to remain. The SSHD decision states that the applicant’s situation is not unusual and cannot be distinguished to a high degree from other cases to the extent that it is necessary to deviate from a standard grant of 30 months leave.

15. In respect of the applicant’s claim that she ought to be treated as if she meets the ADR requirements (where a grant of ILR would be given), the SSHD decision states:

You have raised that, other than being in the UK and not being able to make an out of country application, you meet the requirements for ILR on the adult dependent relative route and accordingly should be granted ILR. As you correctly noted the category of adult dependent relative has a mandatory entry clearance requirement and therefore no further consideration has been made on whether you meet requirements because you have not made a valid application on the route.

The Grounds

16. The applicant advances three grounds.

17. Ground 1 argues that the respondent failed to take into account that the applicant fell to be granted ILR under the ADR rules. Under this ground, it is argued that the applicant is entitled to a grant of ILR because (a) she satisfies all of the conditions for a grant of leave under the ADR rules apart from not being outside the UK when the application was made; (b) apart from in limited circumstances not relevant to the applicant ILR is granted to applicants who make a successful ADR application; and (c) the ADR rules make provision for a grant of ILR where not every requirement of the ADR rules is satisfied. It is submitted that, in the circumstances where all the “substantive” or “core” requirements of the ADR rules are met, it is irrational to treat the applicant differently to those who qualify for ADR. It is also stated that the policy reasons for granting ILR in ADR cases (i.e. the need for certainty and stability in the provision of long-term care by relatives in the UK) is applicable in the applicant’s case.

18. Ground 2 argues that the SSHD decision is irrational, takes into account irrelevant matters, and fails to take into account relevant matters. Specifically, it is submitted that the respondent failed to properly take into account that (a) the applicant’s dementia is a lifelong progressive condition where she cannot improve; (b) the applicant cannot regularise her immigration status herself and it serves no purpose to impose this on her family; (c) the case is unusual because of the applicant’s high degree of dependence on her family in the UK such that she meets the requirements of the ADR rules (apart from being within the UK when the application was made); (d) the policy rational for granting limited leave (i.e. that there is a “probation period” and staged approach) is irrelevant in this case; and (e) the applicant suffers distress as a result of the insecurity stemming from not being granted ILR.

19. Ground 3 argues that the SSHD decision breaches article 14 ECHR. It is submitted that (a) the applicant is in an analogous situation to those who qualify under the ADR rules and is being treated differently with no objective justification; and (b) by granting her only 30 months leave the respondent is failing to treat the applicant differently to those granted discretionary leave when her disability means that she falls to be treated differently. It is also submitted that granting limited leave is indirectly discriminatory as the applicant is unable to make repeat immigration applications independently.

Relevant Immigration Rules and Policy

20. The ADR rules are set out in Appendix ADR of the Immigration Rules. In the introductory section it states:

The applicant must require long-term personal care to perform everyday tasks due to age, illness or disability and that care must be either not available or not affordable in the country where the applicant is living.

The applicant must apply for and obtain entry clearance as an Adult Dependent Relative before their arrival in the UK

[Emphasis Added]

21. The relevant provisions of the ADR rules are as follows:

Eligibility requirements for an ADR

Entry requirements for an Adult Dependent Relative

ADR 3.1. A person seeking to come to the UK as an Adult Dependent Relative must apply for and obtain entry clearance as an Adult Dependent Relative before they arrive in the UK.

ADR 3.2. A person applying for entry clearance as an Adult Dependent Relative must, if Appendix Tuberculosis applies, provide a valid medical certificate confirming that they have undergone screening for active pulmonary tuberculosis and that this tuberculosis is not present in them.

Relationship requirements for an Adult Dependent Relative

ADR 4.1. An applicant applying for entry clearance or permission to stay as an Adult Dependent Relative must be one of the following:
(a) the parent; or
(b) the grandparent; or
(c) the son or daughter; or
(d) the brother or sister,
of a person in the UK (“the sponsor”).

ADR 4.2. The sponsor of the applicant must be one of the following:
(a) a British Citizen; or
(b) settled in the UK; or
(c) in the UK with protection status; or
(d) an EEA national with limited leave to enter or remain granted under paragraph EU3 of Appendix EU on the basis of meeting condition 1(a)(i) in paragraph EU14 of that Appendix.

ADR 4.3. Where the applicant is applying for permission to stay, the sponsor must be the same person who sponsored the applicant when they were last granted entry clearance or permission as an Adult Dependent Relative.

Dependency requirements for an Adult Dependent Relative

ADR 5.1. The applicant, or if the applicant is applying as a parent or grandparent, the applicant’s partner, must as a result of age, illness or disability require long term personal care to perform everyday tasks.

ADR 5.2. Where the application is for entry clearance, the applicant, or if the applicant is applying as a parent or grandparent, the applicant’s partner, must be unable to obtain the required level of care in the country where they are living, even with the financial help of the sponsor because either:
(a) the care is not available and there is no person in that country who can reasonably provide it: or
(b) the care is not affordable.

Financial requirement for an Adult Dependent Relative

[I have not set these out as they were not at issue before me]

Eligibility under Article 8 ECHR for an ADR

ADR 7.1. If the applicant does not meet all the suitability requirements (subject to ADR 7.2) or does not meet all of the eligibility requirements in ADR 3.1. to ADR 6.4., but the decision maker is satisfied that refusal of the application would breach Article 8 of the Human Rights Convention, because it would result in unjustifiably harsh consequences for the applicant or their family, the applicant will meet the Article 8 ECHR eligibility requirement.

ADR 7.2. Where ADR 7.1. applies and the applicant falls for refusal on suitability grounds under S-EC.1.2 to S-EC.1.5, or S-LTR.1.2 to S-LTR.1.6. of Appendix FM of these rules the application as an Adult Dependent Relative must be refused.

Decision on an application as an Adult Dependent Relative

ADR 8.1. If the decision maker is satisfied that all the suitability and the relevant eligibility requirements are met, unless paragraph ADR 7.2. applies, the application will be granted as an Adult Dependent Relative; otherwise, the application will be refused.

Period of grant for an Adult Dependent Relative

ADR 9.1. An applicant applying for entry clearance will, if the sponsor is a British Citizen or settled in the UK, be granted settlement.

ADR 9.2. An applicant applying for entry clearance or permission to stay where an applicant’s sponsor has temporary permission to stay in the UK will be granted temporary permission which expires on the same date as their sponsor’s temporary permission.

ADR 9.3 Where an applicant is applying for permission to stay and, their sponsor is a British Citizen or settled in the UK, the applicant will be granted permission for 30 months.

[Emphasis Added]

22. The respondent’s policy on the ADR rules is set out in “Family Policy ADR”. In the introduction it is stated:

An applicant for this route must be outside the UK: a person cannot switch into this route in the UK.

23. The respondent’s guidance on discretionary leave states in respect of granting ILR:

There may be cases where a longer period of leave is considered appropriate, either because it is in the best interests of a child (and any countervailing considerations do not outweigh those best interests), or because there are other particularly exceptional compelling or compassionate reasons to grant leave for a longer period (or ILR). In cases not involving children (as the main applicant or as dependants), there must be sufficient evidence to demonstrate that the individual circumstances of the case are not just unusual but can be distinguished to a high degree from other cases to the extent that it is necessary to deviate from a standard grant of DL under this policy.

[Emphasis Added]

Analysis

24. I am grateful to Ms Knorr and Ms Anderson for their well-structured and clear submissions (both written and oral). I have not summarised the submissions. However, I have reflected on them carefully and my analysis takes them into account.

25. The ADR rules set out four distinct eligibility requirements: (a) entry requirements (ADR 3.1-3.2); (b) relationship requirements (ADR 4.1-4.3); (c) dependency requirements (ADR 5.1-5.2); and (d) financial requirements (ADR 6.1-6.5).

26. It is common ground that the applicant did not meet the first of the four eligibility requirements (the entry requirements in ADR 3.1 – 3.2). Despite this, Ms Knorr characterised the applicant as having “all the same characteristics as someone who meets the ADR rules”; of meeting the “core criteria of the ADR route”; and as satisfying the “substantive requirements of the ADR rules”.

27. I do not agree with Ms Knorr that a person who does not meet the entry eligibility requirements nonetheless meets the core and substantive ADR requirements. First, there is nothing in Appendix ADR suggesting that any of the four eligibility requirements is less significant than the others, or is not part of the core or substantive ADR requirements. Second, Ms Knorr has not been able to support her position by reference to any authority, policy document or other material indicating that the eligibility requirements in ADR 3.1-3.2 are not core or substantive requirements under the ADR rules. Third, the ADR rules emphasise the significance of the requirements in ADR 3.1-3.2 by referring to this aspect of the eligibility requirements in the introduction section, where it is emphasised that an “applicant must apply for and obtain entry clearance as an Adult Dependent Relative before their arrival in the UK”. Fifth, the respondent’s policy makes plain the importance of the applicant being outside the UK, as it states that “an applicant for this route must be outside the UK: a person cannot switch into this route in the UK”.

28. For these reasons, I do not accept that the requirements specified in ADR 3.1-3.2 are less significant - or less “core” – than the other ADR eligibility requirements. This is not a case, therefore, where an applicant satisfied all of the ADR requirements but for a procedural or technical point. Rather, it is a case where an applicant, whilst in the UK as a visitor, applied for leave outside the Immigration Rules in circumstances where she did not – and could not - meet one of the mandatory eligibility requirements under the ADR rules that is no less “core” or “substantive” then the other eligibility requirements.

29. Ms Knorr argued that it was relevant that the ADR rules provide, under ADR 7.1 read with ADR 9.1, a route to a grant of ILR for applicants who do not meet all of the eligibility requirements. I disagree. For ADR 7.1 to be relevant the applicant would have needed to have made an application under the ADR rules. This is a case, however, where the applicant applied for leave outside the Immigration Rules, not for entry clearance under the ADR rules. Moreover, the wording of ADR 9.1 makes clear that the grant of settlement is for applicants applying for entry clearance; it does not provide for settlement to be granted to applicants, like the applicant, who are seeking permission to stay in the UK.

30. It was common ground before me that, in response to the applicant’s application for leave outside the Rules which included the submission that there were exceptional circumstances that meant the applicant ought to be granted ILR, the respondent was required to apply the DL Guidance. The DL Guidance requires there to be “sufficient evidence to demonstrate that the individual circumstances of the case are not just unusual but can be distinguished to a high degree from other cases”.

31. I accept that if the applicant met all of the core and substantive requirements of the ADR rules that could, potentially, mean that the case was unusual and distinguishable. However, for the reasons I have explained, this was not the case, as the requirement to make the application from outside the UK is not merely technical or procedural, and is no less “core” than the other ADR eligibility requirements.

32. The applicant suffers from a condition – dementia – that is not uncommon. The impact of dementia on the applicant, as described in the evidence that was before the decision-maker, is also not uncommon for those suffering from the disease. It includes that the applicant is reliant on others for care and support, lacks capacity or the ability to deal with her financial and other affairs (including immigration matters), is easily distressed and confused, and faces a future where her condition will become worse over time. Given that the applicant suffers from a common condition and her symptoms are common for that condition, it was, in my view, well within the range of reasonable responses to the evidence for the respondent to conclude that the applicant’s circumstances are not unusual or distinguishable to a high degree from other cases. It was therefore consistent with the DL Guidance, and not irrational, to reject the applicant’s contention that she should be granted ILR.

33. The grounds are premised on it being the case that the applicant satisfies all of the “core” and “substantive” ADR eligibility requirements. I do not accept that this premise is correct. For the reasons I have explained, the applicant did not satisfy one of the four equally significant eligibility requirements of the ADR rules and consequently she was not in the same position as, or in an analogous position to, a person applying for entry clearance who met all of the eligibility requirements of the ADR rules. The applicant therefore cannot succeed under any of the grounds. Accordingly, the application is dismissed.

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