Since the advent of the ‘new’ immigration rules, a prevailing assumption is that many Judges treat the previous Article 8 case law as redundant or superseded. However, two recent cases suggest that this may not be the case and that the ‘old school’ cases are still the main starting points in a court’s treatment of Article 8.
In Patel & Ors v Secretary of State for the Home Department [2013] UKSC 72 (20 November 2013) Lord Carnwath said at paragraph 54:
…The most authoritative guidance on the correct approach of the tribunal to article 8 remains that of Lord Bingham in Huang. In the passage cited by Burnton LJ Lord Bingham observed that the rules are designed to identify those to whom “on grounds such as kinship and family relationship and dependence” leave to enter should be granted, and that such rules “to be administratively workable, require that a line be drawn somewhere”. But that was no more than the starting point for the consideration of article 8…
In Sabir (Appendix FM – EX.1 not free standing) [2014] UKUT 63 (IAC) , a case which directly concerned the ‘new’ rules, UTJ Coker said:
17.Broadly speaking MF (Nigeria) [2013] EWCA Civ 1192 and Nagre make clear that the Immigration Rules as now in force are to be read as incorporating Article 8 of the ECHR but, of course, that existing jurisprudence continues to bind the decision maker and the courts in its interpretation of those Immigration Rules. Put another way a decision purporting to be made in compliance with the Rules will only be sustainable if it is reconcilable with those legal principles as well as the structure of the Rules itself. Otherwise the decision maker will have failed to apply the respondent’s policy, set out above, that refusal of the application must not result in unjustifiably harsh consequences such as to be disproportionate under Article 8.
This means that the likes of Huang, Chikwamba and EB (Kosovo) still have a significant and leading presence within the jurisprudence of Article 8 and that the ‘new’ Appendix FM rules should be approached in a way which is compatible with the ‘old’.
