- BY Colin Yeo
Judge takes “points based system” a bit too literally
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The headnote from KB (Art 8: points-based proportionality assessment) Albania [2022] UKUT 161 (IAC):
Although judges in the immigration jurisdiction should adopt the “balance sheet” approach to ECHR article 8 proportionality assessments, they must not ascribe points to factors weighing on either side of the balance.
The judge in this case had assigned points out of 10 to each of the factors weighing for and against the removal of KB to Albania. With all the government’s talk of points based systems one can perhaps understand why a judge might have gone down this road. But it’s not actually a very good way of deciding cases.
The Upper Tribunal decision is worth reading for the elucidation and endorsement of the correct “balance sheet” approach. And for the finding in this trafficking case that where there was an accepted risk of being persecuted in the home area, it is incumbent on a judge to assess whether the actors of persecution might be motivated to pursue the appellant beyond the home area (paragraph 32).
Interested in refugee law? You might like Colin's book, imaginatively called "Refugee Law" and published by Bristol University Press.
Communicating important legal concepts in an approachable way, this is an essential guide for students, lawyers and non-specialists alike.
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