Thread by @GoldsmithIMM_PL

Starting SOON - Article 8 Case-Law Update Webinar at 12pm! Come & join @amarjitseehra & @jamildhanji in your lunch-break for plenty of updates and food for thought to help you prepare claims & challenge any refusals in Article 8 cases - eventbrite.co.uk/e/webinar-on-a…

Senior practitioners @AmarjitSeehra and @JamilDhanji are live now with their webinar giving us all a much needed Article 8 Update

@AmarjitSeehra will start by considering whether “insurmountable obstacles” under EX.1(b) is an insurmountable test and is taking us through the nuts and bolts of the rules that lead us to an assessment under EX.1

The case of Lal [2019] EWCA 1925 is being explained by senior practitioner @AmarjitSeehra – the test was set out at [36] of that case in three parts

Upper Tribunal was found by the Court of Appeal in Lal [2019] EWCA 1925 to have fallen into error by failing to consider the cumulative impact of all factors in the case

Moving on to the case of AA (AP) [2019] CSOH 56 - @AmarjitSeehra explains that the court has been at pains to explain that the insurmountable obstacles test is distinct from the proportionality assessment required by Article 8 ECHR

The case of Mendirez [2018] CSIH 65 is useful for its consideration of cultural and religious barriers and @amarjitseehra explains that this Home Office own guidance confirms that this can be relevant

The Home Office guidance does not consider that certain difficulties (including language barriers) to be insurmountable but @amarjitseehra confirms that this does not mean that they cannot be taken into account within the cumulative assessment that must be carried out

@AmarjitSeehra is now moving on from insurmountable obstacles to look at EX.1(a) and section 117B(6) and the relevant assessment where there are children involved

The recent case of SD (British Citizen children – entry clearance) Sri Lanka [2020] UKUT 00043 noted that children applying for entry clearance are in a worse position than those who enter illegally and that there is no equivalent s.117B(6) for entry clearance cases

The case of MY [2020] UKUT 00089 involves a case where the Secretary of State had failed to engage with or make a decision on a human right claim and, concerningly, the correct remedy is JR rather than lodging an appeal in these circumstances

@JamilDhanji is now taking over and will be giving us an up to date toolkit for handling Article 8 claims

Looking at the case of Uddin [2020] EWCA Civ 338, @jamildhanji explains that family life in a fostering arrangement is one of substance, not form and that family life can exist regardless of the "formal commerciality of a foster arrangement" - it is a purely factual question

Regarding the second stage of the Razgar test, the case of Ali & Bibi [2015] UKSC 68 is still useful - the interference with Article 8 rights faced by families looking at indefinite separation is described as "colossal"

@jamildhanji It is worth remembering that the case law is clear that there is no separate test of exceptionality in an Article 8 assessment, it is only a question of proportionality requiring the balance-sheet exercise

"The maintenance of effective immigration controls is in the public interest" and must be given weight does not mean that it cannot be diluted and you will be looking for factors that assist with that including ineffective maintenance by the SSHD e.g. through delay @jamildhanji

s.117B(2) and (3) might only be neutral factors if they are in your client's favour but they still need to be addressed so that they are not mistakenly held against a client according to @jamildhanji

s.117B(4) does not say that little weight must be given to all family life established at a time that a person is in the UK unlawfully - it doesn't apply to relationships formed with non-qualifying partners, children or other family members

Notwithstanding s.117B, there is Strasbourg authority that confirms that a person's subjective understanding of their own status is relevant i.e. where a person had a reasonable expectation that they had a right to remain in the UK when forming their family/private life

See Birch [2020] UKUT 00086 on this point @jamildhanji

As per Kaur [2017] - little weight doesn't mean no weight and @jamildhanji reiterates that it can be argued that "a lot of little weight" can be given if your client has the evidence to justify it

@jamildhanji is now going over the current state of the Chikwamba principles and, when comparing the cases of Hayat with the later UT cases, argues that the UT has not actually recast the test

The Chikwamba arguments need to be put into the context of the balancing exercise and, at present, it could be worth arguing that if your client can meet the requirements it would be disproportionate not to allow an appeal where a client cannot go abroad to apply because of Covid

That’s it for today folks! Thank you @AmarjitSeehra & @JamilDhanji for that amazing update! If you have any questions please feel free to send them to [e-mail] or to our team clerks at [e-mail]

This webinar was recorded so don’t worry if you missed it, you’ll be able to catch up when it goes live on our website shortly with an accompanying handout - goldsmithchambers.com/category/news/

Please note that all previous webinars in this series are also available now!