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Six Article 8 ECHR case law an OISC practitioner cannot do without

OISC practitioners who have been practicing for some time will be aware of the whiplash that developments in caselaw and Home Office interpretation of the meaning of Article 8 can give you! Some stand the test of time, others not so much. As of today’s date, these are the six most important pieces of case law in Article 8 ECHR.

1. Razgar [2004] 2 AC 368

The big daddy of Article 8 ECHR which still has considerable relevance in determinations from the Tribunal regularly. Razgar creates the five stage test in which to assess an Article 8 claim outside of the Immigration Rules. Despite a number of challenges to the test in the Upper Tribunal and the Court of appeal, post the Immigration Rule changes in 2012, Razgar must still be used by the Tribunal when assessing Article 8 ECHR outside of the Immigration Rules.

2. Huang [2007] UKHL 11

In considering Article 8, this quote from Huang is a good synopsis:
‘Whether the refusal of leave to enter or remain, in circumstances where the life of the family cannot reasonably be expected to be enjoyed elsewhere, taking full account of all considerations weighing in favour of the refusal, prejudices the family life of the applicant in a manner sufficiently serious to amount to a breach of the fundamental right protected by Article 8. If the answer to this question is affirmative, the refusal is unlawful and the authority must so decide’

This should now be read in conjunction with s117 Nationality Immigration and Asylum Act 2002 (as amended)

3. Kugathas v SSHD [2003] EWCA Civ 31

This is an important case to be read when assessing family life where family life is not assumed. See Westkin’s family life basics blog in order to understand the basics of when family life is presumed and when it is not.

4. Rhuppiah v Secretary of State for the Home Department [2016] EWCA Civ 803

This case is worth reading, if only to show a client that finds themselves hard done by, is probably not as hard done by as this Appellant. Ms Rhuppiah is the queen of missed opportunities. Ultimately, Ms Rhuppiah succeeds and is granted leave prior to the courts determination but agrees to carry on with the appeal to help others.

Rhuppiah concludes the meaning of ‘precarious’ under s117b Nationality Immigration and Asylum Act 2002 which is basically anything short of Indefinite Leave to Remain.

5. Agyarko [2017] UKSC 11

Agyarko considers the effect of precarious and unlawful residence in the UK on the weight to be attached to the Article 8 ECHR ties created or strengthened whilst in the UK with no, or limited, leave. A compelling case must be shown to depart from the Rules when a person’s immigration status is precarious.

6. KO (Nigeria) [2018] UKSC 53

Concludes that a child must not be found guilty of the actions of the parent.

7. GM (Sri Lanka) v Secretary of State for the Home Department [2019] EWCA Civ 1630

The case of GM is a great update and consolidation of pre-existing Article 8 ECHR caselaw. It is also a helpful reminder that it is the proportionality of a decision weighing up competing interests that is important, not whether the case has ‘exceptional characteristics’.

This blog is by no means a ‘complete code’ of Article 8 ECHR cases, but it does give some pointers as to some of the key cases in Article 8 law. Reading them all is likely to give you a basics guide to writing legal representations as these cases also cross reference other important cases.

For more information on Article 8 follow this blog.

If you are interested in launching an appeal based on Article 8 please contact our expert immigration lawyers at 020 7118 4546 or email us at info@westkin.com

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