Gulshan (Article 8 � new Rules � correct approach) Pakistan

Factual and Procedural Background

This opinion concerns an appeal brought by the Appellant against the Respondent regarding the application of Article 8 of the Immigration Rules. The matter was heard at the Upper Tribunal (Immigration and Asylum Chamber) with the appeal focusing on the interpretation and application of maintenance requirements and the consideration of compelling circumstances under the relevant Rules. The procedural posture involves the Upper Tribunal reviewing the Secretary of State's decision and the lower tribunal judge’s approach to the family and private life aspects under the Immigration Rules and associated guidance.

Legal Issues Presented

1. Whether the maintenance requirements set out in E-LTRP.3.1-3.2 remain valid despite criticisms regarding their proportionality and impact on spouses living together.
2. Whether, after applying the Rules, it is necessary to consider compelling circumstances outside the Rules for the purposes of Article 8.
3. The interpretation of "insurmountable obstacles" in provisions such as Section EX.1 and their relevance to relocation and removal decisions.
4. The proper approach a judge should take when considering the Secretary of State’s conclusions under the Rules and Guidance in relation to Article 8 family and private life claims.

Arguments of the Parties

Appellant's Arguments

• The Secretary of State's position was that the maintenance requirements of E-LTRP.3.1-3.2 remain applicable despite judicial critique.
• Article 8 family aspects should be addressed primarily through the Rules, specifically Section EX.1 regarding insurmountable obstacles.
• The judge below erred by not properly considering the Secretary of State’s conclusion that no insurmountable obstacles prevented family life continuation outside the UK.
• Only if there are arguably good grounds for leave outside the Rules should compelling circumstances be considered for Article 8 purposes.

Respondent's Arguments

The opinion does not contain a detailed account of the Respondent’s legal arguments.

Table of Precedents Cited

Court's Reasoning and Analysis

The court analysed the current state of authority on the maintenance requirements and their application under the Immigration Rules. It acknowledged judicial criticism that the existing financial thresholds might disproportionately impact spouses and low wage earners, referencing the suggestion for a more appropriate figure. The court emphasised the sequential approach mandated by precedent: first applying the Rules, including the assessment of insurmountable obstacles under Section EX.1, and only then considering compelling circumstances outside the Rules if leave to remain might be granted. The term "insurmountable obstacles" was interpreted as practical difficulties rather than absolute impossibilities, requiring evidence of particular features to demonstrate that removal would be unjustifiably harsh. The court found that the judge below failed to give proper consideration to the Secretary of State’s conclusion under EX.1 and should have followed the established framework and guidance accordingly.

Holding and Implications

The appeal was allowed.

The court held that the lower tribunal judge erred in not properly applying the maintenance requirements and in failing to consider the Secretary of State’s findings under the relevant Rules before moving to consider compelling circumstances. The decision clarifies the correct approach to Article 8 claims under the new Rules, reinforcing the sequential application of the Rules and the interpretation of insurmountable obstacles. The ruling directly affects the parties by remitting the case for reconsideration consistent with this framework but does not establish new precedent beyond applying existing authorities.