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MYRTLE COTHILL'S CASE AND THE ADULT DEPENDANT RULE

Posted by: Gherson Immigration

MYRTLE COTHILL'S CASE AND THE ADULT DEPENDANT RULE

Following an outcry from the public the Home Office has backed down and withdrawn its threat to deport Myrtle Cothill, a 92 year South African who is currently living in the care of her daughter in the UK.

Background

Myrtle Cothill, entered the UK in 2014 to visit her daughter on a visitor's visa. Due to deteriorating ill health an application was subsequently made under the adult dependant rule for leave to remain with her daughter.  

The Adult Dependant Rule

The adult dependant rule allows British nationals, and those present and settled in the UK to be joined by adult dependants provided the applicant is able to meet a number of requirements. On 9 July 2012 those requirements were changed significantly ('the 2012 rules). Under the 2012 rule, those requirements included having to demonstrate that they are unable to obtain the required level of care in the country they are living in, due to cost or availability. The 2012 rule therefore, only allows British citizens, and other (non-EU) settled persons (i.e. persons with indefinite leave to remain), to be joined by relatives where the long-term care they require is either not available or not affordable in their country of residence, but privately payable by them in the UK - this means that the only family members who are allowed to join their families in the UK are those who live in countries where medical care is more expensive than in the UK or entirely non-existent.

The 2012 changes have been criticised for making it now virtually impossible for applicants to be granted leave in comparison to the pre 2012 rule.  The pre 2012 rule allows British nationals and other settled persons to be joined by their parents/grandparents aged over 65yrs if they could be accommodated and financially supported by their children/grandchildren without reliance on the public purse.

Myrtle's application for leave to remain

The Home Office rejected Myrtle's application on the basis that she did not meet the requirements under the 2012 rule. The Tribunal then refused her appeal. Myrtle made an application for permission to appeal the Tribunal's decision to the Upper Tribunal but this was also denied. The Tribunal held that she was not a 'person of credit', that 'she had obtained entry into the United Kingdom by deception', and that 'the family had arranged their affairs with the deliberate intention of making Myrtle's removal difficult'.

Mary Wills was under the mistaken belief that they could make this application once her mother had settled in the UK.  Under the immigration rules such an application cannot be made 'in country' and once her mother's visa had expired she became a 'overstayer'.

At this point, the Home Office started making arrangements to deport Myrtle from the UK, her deportation was scheduled for 23 February 2016.

Public outcry

It has been reported that Myrtle has heart problems, failing eyesight and is unable to walk unaided.  Myrtle is also said to have little support in South Africa as her husband passed away 65 years ago and Mary Wills, her only daughter, lives here in the UK.

Her daughter cannot move to South Africa to look after Myrtle there as being a British passport holder she has no right to live in South Africa.  In any event, her own husband, David, also needs care as he is currently suffering from Parkinson's disease and COPD, which severely affect his mobility and breathing.

The case has attracted a lot of public support and days before Myrtle was due to be deported, the Home Office surprisingly postponed her removal to give the family more time to prove their claims that Myrtle's poor health means she is unfit to travel and care for herself in South Africa. The family submitted further evidence to the Home Office including fresh medical evidence, which showed that Myrtle was suffering from severe clinical depression, and severe anxiety, which she had developed as a result of her fear of being separated from her daughter.  Myrtle has now been granted leave to remain in the UK.

The family is now petitioning the Government to reverse the changes made to the rule in 2012.

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