One size doesn't fit all - Article 8

A very useful decision came from the Court of Session in PS(AP) Judicial Review [2013] ScotCS CSOH 59, again on the subject of the new rules and human rights claims. Lord Bannatyne held that the rationale for Lord Bingham's comments in Huang as to the failure of the Immigration Rules to represent a consensus remained applicable to the new rules in respect of article 8, private and family life rights. It was simply wrong to say that claims could only succeed in the new regime where exceptional circumstances were established. Lord Bannatyne approved Izuazu :

"50. Second, we are equally unimpressed with the submission that following the adoption of HC 194 and Appendix FM, the test to be applied by the judge in deciding whether the decision is in accordance with the law is whether there are 'exceptional circumstances' for allowing the appeal notwithstanding the absence of compliance with the Rules:

i) Article 8 decisions apply to a wide variety of people: some may be outside the UK and seeking entry clearance to enter; others may be waiting a first decision on leave to enter albeit physically present, some may have entered irregularly before establishing private and family life; others will have established such private and family life during periods of lawful residence and have had the reasonable expectation that their future lay in the UK.

ii) One size does not fit all. It is not possible to apply one set of criteria, such as whether there are 'insurmountable obstacles' to these divergent cases, where the case law indicates that a fact sensitive assessment is necessary. The Upper Tribunal made similar observations in its decision in Sanade and others [2012] UKUT 468 (IAC) [2012] Imm AR 597 before the new Rules were adopted at [35] and [37]. The House of Lords has deprecated the test of exceptional circumstances in Huang and further explained why in EB Kosovo (see below at paragraph 56 below). In our judgment these observations remain as true after the new Rules came into force, as before.

iii) The package of changes made in regulating the admission of family members, grant of leave to remain or their expulsion are generally considerably more rigorous than previous practice. We note the Secretary of State's response to our question 1 and accept that HC 194 and Appendix FM does not reproduce every negative factor that has been identified in the case law of domestic and international courts. Nevertheless, it imposes very exacting requirements in a number of circumstances: minimum income at significantly higher levels than subsistence, continuous residence for 20 years in private life claims and in certain cases the absence of any ties; insurmountable obstacles to cohabitation by spouses and the like. The 'in accordance with the law' limb of the appeal is thus likely to arise as a real issue in more rather than fewer appeals."