Green - Article 8 - New Rules - Again

In dismissing the SSHD's appeal the UT reaffirmed, that FTT judges hearing appeals against decisions made after 9 July 2012 should consider how the Immigration Rules would apply, and make any relevant findings in that context before considering the wider application of Article 8 and the jurisprudence of the Upper Tribunal, and the higher courts, either to decide whether there are exceptional factors not contemplated by the Rules or that the decision is an unlawful one and disproportionate to the legitimate aim. A series of cases have already been highlighted by the Upper Tribunal and higher courts as to the approach to be adopted. There was initially the Upper Tribunal case of Ogundimu ( Article 8 - new rules) which was followed by the two stage test established in MF (article8 - new rules) Nigeria . This approach was endorsed in Izuazu which in turn was approved by the Administrative Court before Mr Justice Sales in the case of Nagre.

Green highlights that as explained in Izuazu & Ogundimu, where the Immigration Rules do not reflect the established principles under human rights law, it is the law as laid down in primary legislation that must be followed.