The scope of Article 8 as defined in the new Immigration Rules is considerably narrower than Article 8 as developed by the European Court of Human Rights and the domestic courts, and introduces a legal requirement (previously rejected by the courts) that applicants must show “exceptional circumstances” or “insurmountable obstacles” to succeed in their claims. Practitioners therefore took the view that the domestic courts were unlikely to accept that Article 8 was exhaustively defined by the new Immigration Rules, particularly as it is unlawful under section 6 of the Human Rights Act 1998 for public authorities to act in a way which is incompatible with a Convention right. There have now been two Upper Tribunal cases in which this view has proved to be correct.
The first case was MF (Article 8-new rules) Nigeria  00393 (IAC), promulgated on 31 October 2012. The tribunal found that the introduction of the new rules meant that consideration of Article 8 claims is now a two-stage exercise. Judges are first obliged to consider whether an Article 8 claim succeeds under the Immigration Rules. If the decision to refuse the claim under the rules is found to be correct, judges must then consider whether the decision is in compliance with a person’s human rights under s.6 of the Human Rights Act, and apply the broader definition of Article 8. That decision has now received ringing support from a tribunal chaired by the President in Izuazu (Article 8 – new rules)  UKUT 00045 (IAC), promulgated on 29 January 2013.