European Union: Settlement For Dependent Parents: Appendix EU V. Appendix FM

Both Appendix EU and Appendix FM provide routes to settlement in the UK for dependent parents. Whilst the focus of this post will be on dependent parents, it should be noted that Appendix EU contains provisions relating to other types of dependent relatives and that Appendix FM relates, not just to dependent parents, but the broader concept of 'adult dependent relatives'.

As will be explored in this post, the paths to settlement offered under these two routes are quite different. Therefore, understanding the distinct requirements, definitions and policy aims imposed by Appendix EU & Appendix FM respectively will be very important when looking to bring a dependent parent to the UK.

Policy Framework

Before considering the legal framework for both these routes, it may first be useful to explore the differing policy agendas acting in the background to Appendix EU and Appendix FM.

The Family Policy Adult Dependent Relatives Guidance provides some indication of the underlying policy behind the Adult Dependent Relative Rules contained within Appendix FM, stating that;

"The policy intention behind the ADR Rules is, firstly, to reduce the burden on the taxpayer for the provision of NHS and local authority social care services to ADRs whose needs can reasonably and adequately be met in their home country"

In contrast, the EU Settlement Scheme: Statement of Intent provides that;

"Close family members [...] living overseas will still be able to join an EU citizen resident here after the end of the implementation period [...]"

"This will enable EU citizens and their family members living in the UK to continue their lives here much as before, [...] with the same entitlements to work (subject to any relevant occupational requirements), study and access public services and benefits, according to the same rules as now."

Thus, Appendix FM's stated policy aim of 'reducing the burden on the taxpayer' necessarily entails taking a stricter stance towards dependent parents from the outset. Therefore, on this basis, Appendix FM appears to be far stricter in its policy approach than Appendix EU. This will be a recurring theme as we explore the legal framework of both these routes to settlement.

Legal Framework

As a brief introduction, the rules for adult dependent relatives under Appendix FM are largely contained within Section EC-DR to Section D-ILRDR. For Appendix EU, our focus will primarily be on Annex 1.

Who can bring a 'dependent parent' to the UK?

Appendix FM

Paragraph E-ECDR.2.3 provides that the sponsor of an 'adult dependent relative' must, at the date of application, be:

(a) Aged 18 years or over; and

(b)

Practically speaking, paragraph E-ECDR.2.3(b)(iv) essentially means that EEA citizens with pre-settled status could rely on either the route to settlement under Appendix EU or Appendix FM. However, for reasons that will become apparent as we continue to explore this topic, the former route (Appendix EU) is preferable.

Appendix EU

Annex 1, Appendix EU provides that the dependent parent must be a direct relative of a "relevant EEA Citizen" or their "Spouse or Civil partner". Annex 1 further establishes that a 'relevant EEA Citizen' is a national of one of the 27 countries that make up the EU as well as Iceland, Liechtenstein, Norway and Switzerland.

The key distinction which arises here is that Appendix EU is limited to EEA citizens or their spouse/civil partner. However, as we have seen, Appendix FM is broader than this.

Who can be brought to the UK?

Appendix EU

Annex 1, Appendix EU defines 'parents' as "the direct relative in the ascending line of a relevant EEA citizen [...] or of their spouse or civil partner". This includes a "grandparent or great-grandparent" and an "adoptive parent of an adopted child".

Appendix FM

Unlike Appendix EU, the position of 'dependent parents' under Appendix FM is not explicitly addressed in its own, separate section. Rather, Appendix FM makes reference to 'Adult Dependent Relatives', and thus applies not just to dependent parents, but to a wider category of individuals.

Paragraph E-ECDR.2.1., Appendix FM, provides that the applicant must be either the;

• Parent 18 years or over;
• Grandparent;
• Brother or sister aged 18 years or over; or
• Son or daughter aged 18 years or over of a person ('the sponsor') who is in the UK

A notable difference here is that Appendix EU adopts a broader approach in some respects. For example, Appendix EU includes both 'great-grandparents' and 'adoptive parents', neither of which are featured under paragraph E-ECDR.2.1 of Appendix FM. Likewise, Appendix FM provides a route to settlement, not just for 'dependent parents' but to a wider range of individuals who the appendix places under the umbrella term of 'adult dependent relative'.

What counts as 'dependence'?

Appendix EU

Annex 1, Appendix EU defines dependence as an Applicant being unable to "meet their essential living needs (in whole or in part) without the financial or other material support of the relevant EEA citizen". Annex 1 also states that "there is no need to determine the reasons for that dependence or for the recourse to that support".

Therefore, the cornerstone of dependence under Appendix EU appears to rest on whether the applicant is capable of meeting their 'essential living needs'.

Appendix FM

Paragraph E-ECDR.2.4, Appendix FM describes dependency as the Applicant, due to their "age, illness or disability", requiring "long-term personal care to perform everyday tasks."

Paragraph E-ECDR.2.5 further provides that the Applicant "must be unable, even with the practical and financial help of the sponsor, to obtain the required level of care in the country where they are living, because –

• It is not available and there is no person in that country who can reasonably provide it; or
• It is not affordable."

Britcits v SSHD (2018) establishes that care in the Applicant's country of residence must be "reasonable for the ADR to receive and of the level required for that applicant" including their "psychological and emotional needs" (Confirmed through the Family Policy ADR guidance)

A crucial distinction here is that under Appendix EU, an applicant can rely on their financial, social or health conditions if they so wished. (See Annex 1, Appendix EU). In contrast, Appendix FM dependency is cast solely in terms of health, specifically the ability to perform everyday tasks (see paragraph E-ECDR.2.4, Appendix FM).

Additionally, Appendix FM requires an Applicant to demonstrate that the required level of care could not be provided in the country where they are currently residing, either because it is not available or it is too expensive. In contrast, as we saw under Annex 1, Appendix EU, "there is no need to determine the reasons for that dependence or for the recourse to that support" and thus, there does not seem to be the same need to show that the required care could not be provided at all in the country where the dependent parent is currently residing (as is the case under Appendix FM).

Required Evidence

Appendix EU

The EU Settlement Scheme EU, other EEA, Swiss citizens and their family members Guidance provides examples for evidence of dependency, including;

• Bank statements or money transfers for Financial Dependency;
• Letters from Hospital consultants for Health Dependency;

Appendix FM

Paragraphs 33 – 37 of Appendix FM-SE detail specific evidence which must be submitted, namely;

• Birth, Adoption or other certificates/documents to prove a Family Relationship
• Independent medical evidence from a doctor/health professional to prove Personal Care Needs
• Independent evidence that the necessary care is not available in the Applicant's country of residence, submitted by a;
• Central or local health authority
• Local authority
• Doctor or other health professional
• Explanations for why the Applicant's care is no longer available if it had previously been provided via a private arrangement
• Financial records of previous payments for care and explanations for why payments cannot continue or are no longer sufficient

Compared to Appendix EU, Appendix FM imposes a much higher evidential threshold. In particular, paragraphs 33-37 of Appendix FM require very specific forms of evidence to be submitted, which does not seem to be a feature shared to the same extent under Appendix EU. This seems to affirm the position, which has been a repeated theme of this post, that Appendix FM takes a far more stringent approach to allowing dependent parents into the UK.

Human Rights

Briefly, it's worth noting that under Appendix FM, Article 8 (ECHR) considerations only arise where there's "something more than normal emotional ties" (Ribeli v Entry Clearance Officer (2018)). In contrast, Celik v SSHD (2022) tells us that "decision-making under Appendix EU does not involve a consideration of the applicant's rights under Article 8". However, there does appear to be a possibility of making human rights arguments in Appendix EU appeals, a topic which has been considered in a previous post.

Final Thoughts

As will hopefully be seen from this post, whilst both Appendix FM and Appendix EU provide routes to settlement for dependent parents, the requirements of the former are, on the whole, far more exacting. Therefore, it seems comparatively more difficult for an applicant to satisfy the requirements of the former.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.