The Ethical Decision-Making Model by the Home Office!
By Danielle Cohen Immigration Law Solicitor LinkedinDanielle Cohen has over 20 years of experience as a lawyer and a reputation for offering professional, honest and expert advice.
We acted on behalf of a woman who came to the UK as a visitor from India in September 2021 and who has lived here with her son and his family. Her husband passed away and she came to stay with her son to be supported during the bereavement period, unsure as to the length of time she would be able to remain in the UK. She is suffering from a range of medical issues and has a complex medical history that requires constant monitoring. We explored the various care issues and addressed them in representations to the Home Office. In particular we explored whether she would be able to obtain the required medical treatment, care and access in India, and for that purpose we instructed a country expert and a consultant geriatric specialist.
We managed to demonstrate that there would be very significant obstacles to her reintegration into life in India as she had no family members who could assist her with her reintegration and there are factors which would make it difficult or impossible for her to establish private life. The factors that acted in her favour were the fact that she was elderly with deteriorating physical and mental health, relied on family members to support her in the UK and had no family members in India who could assist her. We demonstrated that there was no suitable available care in India and that the care homes that were available were not an advisable option. We discussed at length the cultural stigma and lack of appropriate care and submitted that the relationship she had with her son went beyond the normal ties between them. The applicant’s emotional and psychological requirements were verified by expert medical evidence. Interestingly, the Home Office have requested in this case, an updated medical report, and after an MRI brain scan was conducted, we were in a position to provide further representations proving that there were truly compelling and compassionate circumstances.
However, this happy ending is not the case for all applicants. Even with truly compelling and compassionate cases, with the same level of evidence and the same level of care required, we are not always successful in the first instance. It is important to remember that on occasions the Home Office incorrectly makes refusal decisions which later on are not upheld by the Courts. It is difficult to read Home Office decisions (after long delays) which do not take into consideration the devastating effect it has on the applicants and their families.
However, things could be different if only the Home Office could implement their own “Ethical decision-making model” which was published in November 2021. This ethical decision-making model was intended to help a decision maker to articulate and resolve ethical issues that they identify while considering what decision to make. For example, they have to consider what discretion is available to them if they cannot resolve an issue within the existing rules and guidance and what is their level of authority. Should they escalate the issue for further consideration? The model does not direct the officials to make the right decision. It encourages critical thinking. It does not replace existing immigration legislation. It prompts the decision maker to think critically about exercising the discretion they already have and to escalate an issue where they feel they cannot resolve it within the current legal and policy frameworks. Furthermore, page 5 of this guidance suggests that once a proposed decision has been made, the decision maker should reflect and consider the potential impact of that decision. I wonder how often this model is actually being used in deciding the adult adult dependent visa applications of relatives who make an application to remain in the UK with their children, are refused and eventually win in court.