Human Rights Require That Tough Immigration Rules Are Tinged with Mercy

Posted: 5th August 2020

British immigration rules are amongst the toughest in the world, but every case must be considered on its own facts and human rights legislation leaves room for mercy. A striking case on point concerned an elderly Indian couple who suffered a dramatic decline in their health after coming to Britain to visit their family.

Passport stampsThe couple, in their 60s, flew to Britain on valid entry visas to stay with their son, who has indefinite leave to remain in Britain, and daughter-in-law. They did so in order to celebrate the fifth birthday of their grandson, a British citizen. Although the woman suffered from mild dementia, they were otherwise healthy.

After their arrival in this country, however, the man suffered a severe heart attack. Although he was operated on successfully, he required regular medication and suffered from high blood pressure and diabetes. His illness also triggered a rapid deterioration in his wife’s dementia. She was receiving treatment for diabetes, hypertension and bronchial asthma together with psychiatric care.

Due to their health difficulties, which had not been anticipated prior to their arrival in the UK, the couple were unable to return to India as planned. Their application for further leave to remain in Britain was, however, refused by the Home Office and their challenge to that decision was later rejected by the First-tier Tribunal.

In upholding their appeal against that outcome, the Upper Tribunal (UT) found that their health problems represented an insurmountable obstacle standing in the way of their return to India. Requiring them to leave the UK would be unduly harsh and would amount to a violation of their human right to respect for their family life, enshrined in Article 8 of the European Convention on Human Rights.

It was not a case of foreign nationals with pre-existing medical conditions coming to Britain in search of treatment. The couple had no ulterior motive for making a claim to remain in this country, rather than applying from abroad. They would not be a financial burden on the state in that their son had undertaken to support them. At great personal sacrifice, he had shouldered the burden of paying an NHS bill in excess of £26,000 in respect of his father’s treatment.

The UT acknowledged the importance of upholding effective immigration control, but found that a ruling in the couple’s favour could not be viewed as a precedent that might encourage others to circumvent the rules. The adverse consequences to society of permitting them to remain in Britain would be slight, whereas requiring them to leave would severely disrupt their family life. Overall, the UT ruled that the latter course would be disproportionate.