Article 8 cases outwith the Rules

Last week we posted about the Scottish case from the Court of Session, PS V SSHD, [2013] CSOH 59, which came out in April and which helpfully confirmed that there required to be a two stage process in Article 8 cases, a consideration under the Rules first of all but then a separate and independent scrutiny of the Article 8 argument. We now have a decision from the Inner House , MS V SSHD CSIH [2013] 52, which takes us into new territory of a good arguable case : " Before it is necessary to embark on that second‑stage exercise, however, the application for leave to enter or remain must demonstrate a good arguable case that leave should be granted outside the rules: that a distinct assessment of proportionality should be made to determine whether removal would infringe the applicant's article 8 rights. If that is not demonstrated, it can be assumed that the applicant's article 8 rights will be adequately dealt with by applying the new rules. Finally, the test of exceptionality should not be used any longer; instead, decision‑makers should focus on the question of whether the applicant has shown a good arguable case that his or her application should be dealt with outside the rules."