Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2025-002501

First-tier Tribunal No: HU/62246/2023
LH/06412/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:

On 24th of November 2025

Before

UPPER TRIBUNAL JUDGE LODATO

Between

JIN BO YAO
(NO ANONYMITY ORDER MADE)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Unrepresented
For the Respondent: Ms Rushforth, Senior Presenting Officer

Heard at Cardiff Civil Justice Centre on 10 November 2025

DECISION AND REASONS

Introduction

1. This remaking decision follows my previous decision to set aside the decision of the First-tier Tribunal (‘FTT’) because it involved a material error of law in the assessment of the appellant’s case on the application of Appendix ADR of the Immigration Rules. In the error of law decision, I set out the broad background of the claim in the following terms:

The appellant, a 79‑year‑old Chinese national, seeks entry clearance as an Adult Dependent Relative (‘ADR’) of his British citizen daughter under Appendix ADR and Article 8 of ECHR. His case is that he requires long‑term personal care due to severe visual impairment, recurrent cardiac episodes including two heart attacks in 2024, and other chronic conditions, and that such care cannot reasonably be provided in China. He contends that his current arrangements—residing with an 82‑year‑old sister who suffers from multiple health problems and cares for her 88‑year‑old husband with cancer—is precarious, unsustainable, and has already resulted in neglect and deterioration, including malnutrition and functional isolation. The appellant argues that the refusal decision was not in accordance with the applicable Immigration Rules and would disproportionately interfere with his established family life with the Sponsor, who has demonstrated consistent emotional, practical and financial commitment to his welfare.

2. The FTT finding of fact, that the requirements of paragraph 5.1 of the scheme were satisfied on the evidence, were preserved and stand for the purposes of this decision.

Appeal to the Upper Tribunal

3. At the outset of the hearing, I clarified the issues to be resolved in remaking the underlying appeal decision. The sponsor, Mrs Davies, did not pursue the suggestion that the appeal could succeed on Article 3 health grounds. Instead, the issues were agreed to be as follows:

i. Are the requirements of paragraph 5.2 of Appendix ADR satisfied?
ii. Is family life in existence and engaged for the purposes of Article 8 of the ECHR?
iii. If family life is engaged, is the refusal decision a disproportionate interference?

4. Ms Rushforth accepted that if the first issue went in the appellant’s favour, the refusal decision would amount to a disproportionate interference with protected family life and the appeal would fall to be allowed on human rights grounds. If the requirements of paragraph 5.2 were not met, it would then be necessary to consider whether family life was engaged and whether the refusal of entry clearance was disproportionate outside of the Immigration Rules. In her concluding oral submissions, Ms Rushforth conceded that it would not be reasonable to expect the appellant’s elderly sister to act as his de facto carer and for the current arrangements to continue. Instead, the only reasonable caring arrangement in China would be for him to be cared for by professional, third-party carers. This would need to be in a care home setting because it was unrealistic to expect a carer to provide care to the appellant in his sister’s home, a small property with three elderly residents, all with complex care needs. In addition, it is customary in China for such in-home care to be provided by a carer who will take a spare bedroom in the property. Such an arrangement could not be accommodated in the small property where the appellant lives with his sister and her elderly husband. Given the adjustment of the respondent’s position during the hearing, the question of whether it would be affordable to arrange a placement at a care home took on critical importance.

Discussion

5. Paragraph 5.2 of Appendix ADR provides:

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.

6. The lawfulness of this part of the Immigration Rules was considered by the Court of Appeal in BritCits v SSHD [2017] 1 W.L.R. 3345 where the following observations were made by Sir Terence Etherington MR at [59]:

Second, as is apparent from the Rules and the Guidance, the focus is on whether the care required by the ADR applicant can be “reasonably” provided and to “the required level” in their home country. As Mr Sheldon confirmed in his oral submissions, the provision of care in the home country must be reasonable both from the perspective of the provider and the perspective of the applicant, and the standard of such care must be what is required for that particular applicant. It is possible that insufficient attention has been paid in the past to these considerations, which focus on what care is both necessary and reasonable for the applicant to receive in their home country. Those considerations include issues as to the accessibility and geographical location of the provision of care and the standard of care. They are capable of embracing emotional and psychological requirements verified by expert medical evidence. What is reasonable is, of course, to be objectively assessed.

7. Article 8 of the ECHR provides:

(1) Everyone has the right to respect for his private and family life, his home and his correspondence.
(2) There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

8. The Immigration Rules regulate how the respondent will seek to balance the right to a family and private life under Article 8 against the wider interests of society.

9. Section 117A of the 2002 Act provides that a tribunal adjudicating on whether Article 8 has been breached by a decision under the Immigration Acts, must have regard to the public interest factors specified in s.117B.  

10. At [17] of his judgment in Razgar v SSHD [2004] 2 AC 368, Lord Bingham identified a series of questions that a tribunal should ask itself when faced with an appeal that raises an Article 8 issue.

11. In TZ (Pakistan) and PG (India) v SSHD [2018] EWCA Civ 1109, the Senior President of Tribunals provided guidance as to how competing public and private interests should be balanced in a case where the extent of compliance with the Immigration Rules is in question. He said this at paragraph [34]: 

[…] where a person satisfies the Rules, whether or not by reference to an article 8 informed requirement, then this will be positively determinative of that person's article 8 appeal, provided their case engages article 8(1), for the very reason that it would then be disproportionate for that person to be removed.  

12. As the remaking hearing unfolded, and I heard oral evidence from Mrs Davies, it became clear that it was not being suggested that adequate care to meet her father’s day-to-day caring needs was unavailable, nor that her father would be unwilling to live in a care home. She had gone to great lengths to explore the services which are on offer and provided evidence of the cost of placing her father in a Chinese care home. She was asked whether her father would be willing to live in a care home. Mrs Davies accepted that he would much prefer to be cared for by family, as he had done for his own older relatives in the past, but that he would reluctantly agree to be housed in a care home if there was no other option.

13. As set out in paragraph 5.2 of the Appendix ADR scheme, a critical and potentially decisive question is whether available and adequate care is affordable in the dependent relative’s home country. I have no reason to doubt the sponsor’s oral evidence about the finances which are available to the appellant, including the resources his daughter has available to her from her UK household. She was open and transparent about her financial circumstances. Her British husband works full-time as a lab technician for Sartorius UK Ltd and earns approximately £42,000 per annum. The sponsor stopped working after she had children meaning that the only additional household income comes in the shape of child benefit payments for the family’s three children. She went on to explain that the overall application and appeal process to seek entry clearance for her father had cost in the region of £15,000 over the course of 6 months which had been funded by credit card loans. Her father’s financial position was little better in that his only income was a monthly pension payment of approximately £570. He formerly owned a house in China but, as per local tradition and custom, his son (who was later convicted of fraud and imprisoned) became a joint owner and arranged for the house to be sold. The appellant’s father had not seen any of the proceeds of that sale and did not have any other property, assets or savings. None of this evidence was challenged.

14. The sponsor provided records of the research she had undertaken to understand the likely costs of paying for a care home place for her father [page 3 of the sponsor’s remaking submissions and the supporting documents]. This revealed that the bare minimum costs would leave a shortfall of approximately £650 per month after her father’s full pension was used as part payment. The £650 shortfall did not include additional expenses such as utility payments, medical care and general cost of living expenses which were more difficult to estimate with precision in advance of such costs being incurred. She estimated that the total shortfall would in fact be in the region of £800-£900 per month. The sponsor explained that she and her family simply had no ability, or reasonable prospect, to meet these costs given her financial circumstances. In her remaking submissions, the sponsor explained that her father would not qualify “Government financial aid” in China because he would not meet the necessary criteria of an individual in “critical need” – equally, community support was only provided for sporadic, pre-booked daytime specific needs as opposed to the kind of round-the-clock care he would actually need. Neither proposition was challenged during the hearing.

15. Considering the evidence in the round, I accept the sponsor’s evidence as credible and reliably underpinned by a wealth of documentary evidence which I have carefully considered before coming to this decision. I am satisfied that the requirements of paragraph 5.2 of Appendix ADR are satisfied in that the appellant is unable to obtain the required level of care in the country where he is living, even with the financial help of his sponsoring daughter because the care is not affordable given the family’s particular circumstances. As agreed between the parties when the principal controversial issues were identified, this means that the appeal falls to be allowed on Article 8 human rights grounds because the refusal decision is manifestly disproportionate when seen against the application of the relevant Immigration Rules.

Notice of Decision

On remaking, I allow the appeal on Article 8 human rights grounds.

P Lodato

Judge of the Upper Tribunal
Immigration and Asylum Chamber

19 November 2025