Upper Tribunal Rejects Points-Based Approach to Article 8 Proportionality Assessment

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the Immigration Rules as set out in paragraph 276ADE(1)(vi) of the Immigration Rules (Note: This section was recently repealed and replaced).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.

57. 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.

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