The issue that will be being dealt with in this essay is Article 8[footnoteRef:1] and the UK’s discretion in regards to two components which are the backbone of immigration cases and these are the rules in regards to the aspect of finance, language and relationship- i.e. the eligibility requirements under the immigration rules (IR) - and the other component being deciding cases on family matters individually. [1: HRA (1998) ]
What will first be dealt with is Article 8 itself which is the right to private and family life, the wording in itself of the Human Rights Act 1998 includes the word ‘respect’ which connotes that this is not an absolute right and allows each member state within the European Union discretion. The significance of Article 8 is that the majority of Strasbourg cases deal with such claims. Article 8 comes into play when the immigration rules (APP FM), the EX1 and EX2 rules do not apply and the last resort will be making an Article 8 claim.
Although Strasbourg is the final point at which cases should be heard it should be noted that Strasbourg does not place rigid rules, effectively this allows flexibility for member states to decide their own rulings and allows discretion on member states’ behalf. This discretion does have its limitations as was evident in Biao v Denmark[footnoteRef:2] where an attempt to implement a 28 year rule was deemed to be too strict by the European Court of Human Rights (ECtHR). The Biao case is fundamental into understanding the role that the ECHR plays and that is that the ECtHR gives guidance as to what will be acceptable and if the governments abuse the power they are given then the ECtHR has the power to strike it down and remove such (possible) implementation. Such a decision that a member state ruling will not prevail is further solidified by the constitutional case of Haung v SSHD[footnoteRef:3] where the debate arose as to the presumption that parliament always works in proportion with immigration rules (IR) and there would be no need to claim Article 8. The Supreme Court held that a claim could fail under immigration rules but still succeed under the basis of an Article 8 claim disapproved this presumption. [2: 38590/10 [2016]] [3: [2008] UKHL 39]
The general standing of Article 8 and its ‘supremacy’ as such within the law in the European Union, including the UK, has been dealt with to provide the basis of part (a) and (b) in the question. Part (a) will be dealt with first and that is the making of rules in regards to three aspects which are all part of the eligibility requirements and will be dealt with accordingly. In regards to finance it can be said, with confidence, that the UK exercises the fundamental execution of what is a reasonable amount when applying for a visa under APP FM. The current standing on finance is that there must be an £18,600 annual income and this rule created upset for those who could no longer keep their partner in the country because this would be difficult...
