It is sad when a judge tasked with deciding whether a British pensioner should live out his last days with his wife or without comments that

this was a very run of the mill case

Maybe for the judge. In which case the judge should consider his or her position as a judge. It certainly is not ‘run of the mill’ for those affected. Unfortunately, this patrician insouciance when determining other people’s lives infects many who work in immigration law.

In this case Cranston J goes on to comment that the pensioner concerned only “relatively recently became a British citizen”. He is but a ‘Plastic Brit‘, as The Daily Mail would say.

The judge rather unfortunately implies that there are different extra-legal grades of British citizenship. Just this week, Hugh Muir of The Guardian asked “How long do you have to be in Britain before it’s ‘yours’?”. Perhaps the rights of the British-born should be given more weight? Perhaps especially those of the indigenous population? Can we think of any more synonyms? Why don’t we just call a spade a spade?

The background to the unfortunate Upper Tribunal judgment was that an appeal had been allowed in the First-tier Tribunal. A judge held that it was disproportionate to separate a British pensioner aged 67 from his wife of 34 years with nearly £30,000 of savings only on the basis of the husband commanding insufficient annual income to meet the £18,600 threshold. Cranston J pointedly comments that the 67 year old “does not work and has no income” and holds that the judge had erred in law:

The judge then embarked on a free-wheeling Article 8 analysis, unencumbered by the rules. That is not the correct approach. (para 27)

In fact, the Supreme Court in Patel does arguably suggest that such an approach is the right one: a human rights analysis is not encumbered by the rules. In the leading judgment Lord Carnwath turns to the earlier case of Huang to elucidate the true legal position:

Mrs Huang’s case for favourable treatment outside the rules did not turn on how close she had come to compliance with rule 317, but on the application of the family values which underlie that rule and are at the heart also of article 8. Conversely, a near-miss under the rules cannot provide substance to a human rights case which is otherwise lacking in merit. (para 56)

Patel came after the hearing in Gulshan but before promulgation. Given its relevance, it is a shame not to see it referenced. Ms Peterson’s submissions for the Appellant in Gulshan can be seen to be quite prescient.

The determination in Gulshan also does violence to the Court of Appeal judgment in MF (Nigeria). At paragraph 49 of MF the Court notes, obiter, that an ‘insurmountable obstacles’ test would be incompatible with Article 8. My understanding of that passage is that in assessing a human rights case, that is therefore the wrong test to apply. In Gulshan, Cranston J seems to read this as meaning that the words should still be used in assessing cases, but that they should be read down so as not to mean what they say so that an assessment under the rules is still one that is human rights compliant. That sounds like legal gymnastics to me. An insurmountable obstacle is one that literally cannot be surmounted, after all. History is littered with remarkable and exceptional stories of human endeavour that surely teach us almost no barrier is insurmountable to us.

The determination then displays what one would have thought was a basic legal error in going on to reference the insurmountable obstacles test (said obiter in MF to be the wrong one) in the cursory and rather rude Article 8 assessment at the end. There is no consideration of the pertinent issue of whether, like the young, the imposition of a high minimum income threshold on the old and retired might well be a disproportionate interference with their right to a family life.

No comment on this case would be complete without noting the irony of paragraph 17 of the determination:

The case law on Article 8 is vast. With the daily burden of deciding cases Tribunal judges face an unenviable task of keeping track of its frequent twists and turns. We do not intend to add to the problem.

The road to hell is paved with good intentions, they say. It is perhaps best that we take this passage at least at face value and disregard the determination.

You can read the case for yourself here. See also Asad Khan’s analysis, No More Freewheeling Article 8.