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Upper Tribunal Rejects Points-Based Approach To Article 8 Proportionality Assessment – General Immigration



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Immigration judges often need to conduct a balancing exercise to
assess where to strike the balance between an individual’s
Article 8 right to respect for private and family life and the
public interest in maintaining effective immigration control by
removing a foreign national to their country of origin.

In KB
(Article 8: Points-Based Proportionality Assessment)
Albania
 [2022] UKUT 161 (IAC), the First-Tier
Tribunal (FTT) judge assessed the proportionality of removing the
Appellant from the UK by scoring the pros and cons of removal out
of 10. The cons scored more highly, so the judge ruled that it was
proportionate for the Appellant to be removed. 

The Upper Tribunal held that this numerical approach was wrong
in law. It reminded the lower court that the question of Article 8
proportionality demands a ‘broad evaluative
assessment
‘. 

Points-based approaches to Article 8 proportionality, the Upper
Tribunal ruled, are too crude and mechanistic to account for the
interplay between relevant factors and invite dangerous
oversimplification by judges.

This article explains the Upper Tribunal’s reasoning and
discusses why the higher court did not welcome the quantitative
approach to Article 8 proportionality assessments taken by the
lower court.

Case Summary: KB (Article 8: Points-Based Proportionality
Assessment) Albania [2022] UKUT 161 (IAC)

As a child in Albania, KB was forced by two men (K and BL) to
sell illegal drugs. When he refused, they violently assaulted him
and threatened his family.

He fled Albania and 
claimed asylum
 in the UK in November 2016. The National
Referral Mechanism assessed KB and concluded that he had been
subjected to forced labour and therefore was a victim of
trafficking.

In July 2020, his 
protection
 and 
human rights claims
 were refused on the basis of
‘sufficiency of protection’ and ‘internal
relocation’ considerations. The FTT judge concluded that
although KB faces a real risk in his home area from K and BL, he
does not face a risk in his home area from traffickers more
generally. Moreover, the judge held that KB could reasonably be
expected to relocate within Albania to avoid the risk from K and BL
in his home area.

The FTT judge then went on to consider 
Article 8 ECHR within the Immigration Rules
 as set out in
paragraph 276ADE(1)(vi) of the Immigration Rules (Note: This
section was 
recently repealed and replaced
). The judge held that KB would
not face ‘
very significant obstacles to integration
‘ into
Albania.

Finally, the FTT judge considered 
Article 8 outside the Immigration Rules
. The judge considered
if KB’s removal from the UK to maintain effective immigration
control was proportionate to his human rights under Article 8.
Proportionality assessments require judges to take a ‘balance
sheet’ approach, where they set out the pros and cons of
removing a foreign national to their country of origin, before
reaching a reasoned conclusion as to which side is weightier.

The FTT judge scored the pros and cons out of 10. On KB’s
side of the scales, the judge gave 5 points to reflect the
moderate
weight”
 attaching “to the
difficulties the Appellant will face in Albania because he would
need to relocate to an area of the country away from his
family.
” On the other side of the metaphorical scales,
the judge gave 10 points for the public interest in effective
immigration control. He reduced this to 7 points to reflect the
three years delay in processing KB’s claim, stating that
the level of reduction of weight should be commensurate
with the delay, so one point for every year of delay in the
decision-making.”

Totting up the scores, the FTT judge concluded that the
countervailing factors did not outweigh the public interest in
favour of immigration control. Therefore, KB’s human rights
claim also failed.

KB appealed to the Upper Tribunal.

Upper Tribunal: Protection Claim

Briefly, it is worth mentioning that the Upper Tribunal (UT)
held that the FTT judge erred when he assessed the protection
claim. The FTT judge failed to consider the motivation of K and BL
to pursue the appellant, which affected the reasonableness of
internal relocation in Albania.

The significance of this for practitioners and applicants is in
ensuring that evidence is provided to demonstrate the likelihood of
localised risks pursuing a claimant across the proposed country of
removal.

Upper Tribunal: Article 8 Proportionality Assessment

The UT also held that the FTT judge erred in taking a
points-based approach to assessing Article 8
proportionality: 

56. … The nature of the
evaluative exercise required of judicial decision-makers is such
that any points-based approach is inherently unsuitable for
achieving a result which is compatible with the obligations
stemming from the ECHR.

  1. Accordingly, for an individual judge to adopt their own
    points-based system is wrong as a matter of law.

The UT acknowledged in paragraph 52 that one might think it
appropriate to use numbers to ascribe points in respect
of the considerations inherent in the proportionality balancing
exercise, in order to establish the relevant weight of
each.
” However, the UT held that, rather than simply
ascribing points to relevant factors and arithmetically scoring
them, a “broad evaluative assessment” is
required.

The Chimera of Transparency

Some readers may instinctively support the idea of a
points-based approach, equivalent to those used in some 
business migration categories
. Like the FTT judge, it is
tempting to assume that the attribution of points to different
factors will make any evaluative assessment more
‘transparent’. Arguably, rather than a cadre of judges
reaching (potentially) subjective decisions about people’s
human rights following inexact or selective reasoning, it would be
better to have a points-based system that ensured more precise
decision-making. A points-based system would require judges to
follow a specific formula in which their reasoned evaluations were
laid open to proper scrutiny. A points-based approach would,
arguably, make the law more predictable, meaning lawyers and
applicants could more accurately foresee the outcome of possible
applications or appeals before pursuing them.

This view, however, did not persuade the UT: “Although
the First-tier Tribunal judge claims that his points-based approach
enables him to strike the proportionality balance
“transparently”, it is difficult to see why ascribing
points is inherently more transparent than a “classic”
balance sheet exercise of the kind envisaged by Lord Thomas and
undertaken by the district judges in extradition
cases.

A decision about the weight of a relevant factor is not
necessarily more transparent because it has a number attached to
it. In fact, explaining how one particular factor has been
numerically scored relative to other factors in the case will
likely cause more confusion and less certainty than simply
explaining why the totality of pros outweigh the totality of
cons.

A Blunt Instrument for a Subtle Task

The judgment indicates that points-based approaches to Article 8
proportionality assessments are likely to fail to capture the
complexity and nuance of individual cases. Relevant factors
interplay in complicated ways and do not scale to one another
easily. Crudely scoring factors ‘out of 10′ places an
artificial cap upon the weight that can be given to them, and each
apparently discrete factor in actuality will likely seep
into/overlap with other factors. Human lives, in short, are too
messy, complicated and unique for a points-based approach to
capture the full picture.

There are no neat ratios between the risk to public safety posed
by an applicant’s criminal offences and how many British
children he has living in the UK. The hardship entailed by
requiring a person to move to a part of the country where they have
no family may interplay with many other relevant factors: the
applicant’s health; the financial circumstances of the
applicant and his family; how much time the applicant has spent in
the country; how old they were and their circumstances when they
were last in the proposed country of removal. Attributing points to
each relevant factor is too crude and mechanistic.

The position in Article 8 cases is very different from 
PBS workers
. It is easy to ascribe points in such cases because
individuals either meet a requirement or they do not:

  • Applicants either can or cannot provide evidence that they
    speak English at the required level;

  • Applicants either have or have not been offered a salary above
    a certain threshold;

  • Applicants either have or have not got a PhD.

Moreover, the weight accruing to these factors does not
significantly change depending on other relevant factors. They are
all positive factors weighing against the general public interest
in controlling the immigration of workers to the UK. No human
rights are at stake. It may be controversial to say that a PhD in a
STEM subject is worth twice as much as a PhD in the humanities, but
it would not be as manifestly wrongheaded as suggesting that
separating a mother from her two British children is twice as bad
as separating her from her one British husband.

The Complexity of Delayed Decision-Making

The UT judgment gives the example of delay as explained
by Lord
Bingham
 as an example of the complex ways in which an
apparently single factor can weigh differently in a proportionality
assessment depending on its interplay with other factors. Lord
Bingham indicated there were at least three ways in which delay
might affect the proportionality assessment:

  • The longer a delay, the more time the applicant has had to
    develop close personal, social and community ties in the UK;

  • Any relationship entered into in this time is likely to have
    been a tentative one because it was entered under the shadow of
    severance by administrative order (especially if the partner knew
    of the applicant’s precarious immigration status);

  • The longer the delay in a decision, the more
    dysfunctional” the immigration system becomes
    – sending a less powerful message to aspiring immigrants that
    they will be treated consistently and fairly.

Lord Bingham’s list was not exhaustive. It might be, for
example, that the very precariousness and isolation of the
applicant causes them to enter into a more dependent relationship
than they otherwise would have done because of an adverse effect of
the delay on an applicant’s mental health. Nuance matters
– and numeric representation of nuanced reasoning risks
oversimplifying the subtle considerations at play.

Judges taking a points-based approach to calculate the
proportionality assessment invites crudeness of the kind
demonstrated by the FTT judge, who simplistically deducted a point
for each year that there was a delay rather than properly
considering how the delay affected KB.

The Importance of Being Relative

If all the relevant factors are properly considered by a judge,
i.e., they are considered relative to all of the other factors,
then attempting to score each of the factors out of 10 becomes a
hugely complicated task. 

The process of attaching scores to these relative factors could
not be used to help judges decide cases as this would undermine the
fact-sensitive approach required of them by the ECHR. It would
therefore serve no purpose other than to simplistically describe
the judge’s evaluative outcome. Moreover it would do so at
the risk of inviting error, arbitrariness, confusion and
disagreement about a judge’s reasoning, rather than
introducing certainty or clarity.

Conclusion

The UT’s decision indicates that the scales and balance
sheets involved in the proportionality assessment are figurative,
not literal. 

The decision is a reminder to judges, practitioners and
applicants of the fact-sensitivity of Article 8 cases. In any
Article 8 case, it is important to consider how the relevant
factors operate both discretely and in subtle conjunction with each
other.

The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.



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