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Gulshan (Article 8 – new Rules – correct approach) [2013] UKUT 640 (IAC)

The new approach to Article 8 cases is something being challenged by the Home Office. The Court of Appeal has underlined that it is the Strasbourg standards and principles which continue to govern the ultimate disposal of these cases. Confronted with significant concessions by the SSHD, the Court has construed the new Rules, which on their face appeared discordant with article 8, as in fact doing no more than requiring decision-makers to conduct the conventional proportionality exercise, paying regard to all of those considerations identified as relevant by the Strasbourg jurisprudence. In Gulshan, the First Tier Tribunal had allowed the appeal however the Upper Tribunal held that the Judge had erred. The background to the unfortunate Upper Tribunal judgment was that an appeal had been allowed in the First-tier Tribunal. A judge held that it was disproportionate to separate a British pensioner aged 67 from his wife of 34 years with nearly £30,000 of savings only on the basis of the husband commanding insufficient annual income to meet the £18,600 threshold. Cranston J pointedly comments that the 67 year old “does not work and has no income” and holds that the judge had erred in law: The determination in Gulshan also does violence to the Court of Appeal judgment...