The related House of Lords decisions of June 2008 (Beoku-Betts, Chikwamba and EB (Kosovo)) should have brought about a sea change in the approach of the Home Office and the immigration tribunal to human rights issues. While there have been improvements in the respect given to fundamental human rights, there is still a long way to go.
It took the Court of Appeal case of VW (Uganda) to persuade the immigration tribunal that it is not appropriate for the test for whether a British based family member can relocate abroad is whether there are insurmountable obstacles. Think about it: what obstacle is actually an insurmountable one? This obviously places the test too high and was an inhumane and legally flawed approach right from the start.
Still, though, the Home Office persist in disregarding the rights of British citizens to live with members of their family. The case of R (on the application of HM (Malawi)) v Secretary of State for the Home Department  EWHC 1407 (Admin) is one of those where it is difficult to see why they were trying to defend their decision, and the previous determination of the tribunal was very poor. The judge singles out the snide remark that it was ‘surprising’ that the criminal courts had been so lenient previously. These sorts of Daily Mail-esque comments do crop up from time to time in determinations, sadly, even though it is clearly inappropriate. See also a similar recent decision in R (on the application of Daley-Murdock) v Secretary of State for the Home Department  EWHC 1488 (Admin) involving two children and a partner.
The tribunal’s record is less than exemplary. The case of SS (India) v Secretary of State for the Home Department  EWCA Civ 388 was pretty damning (see previous post).
The law is that proper consideration has to be given to the effect on family members. If it is to be applied effectively by decision-makers, though, lawyers have to prepare and present appropriate evidence addressing the issue.