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 in MF (Nigeria). At paragraph 49 of MF the Court notes, obiter, that an ‘insurmountable obstacles’ test would be incompatible with Article 8. My understanding of that passage is that in assessing a human rights case, that is therefore the wrong test to apply. In Gulshan, Cranston J seems to read this as meaning that the words should still be used in assessing cases, but that they should be read down so as not to mean what they say so that an assessment under the rules is still one that is human rights compliant. That sounds like legal gymnastics to me. An insurmountable obstacle is one that literally cannot be surmounted, after all. History is littered with remarkable and exceptional stories of human endeavour that surely teach us almost no barrier is insurmountable to us.
The determination then displays what one would have thought was a basic legal error in going on to reference the insurmountable obstacles test (said obiter in MF to be the wrong one) in the cursory and rather rude Article 8 assessment at the end. There is no consideration of the pertinent issue of whether, like the young, the imposition of a high minimum income threshold on the old and retired might well be a disproportionate interference with their right to a family life.
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