- A brief history
- The July 2012 deportation rules
- Part 5A Nationality Immigration Asylum Act 2002
- Fitting within an exception
- “Very compelling circumstances”
- Deportation test: a summary
Deportation proceedings pit the rights of the individual against those of the state, appointed guardian of the public interest. And as very clearly stated in primary legislation, the deportation of foreign criminals is in the public interest.
The law in this area is rent through with politics, shifting relentlessly with headlines, changes to rules or legislation and the latest decisions of the courts.
In this briefing we consider the recent history of deportation law in the UK, the people who will be subject to these rules and the arguments available to those seeking to challenge decisions to deport them.
A brief history
Section 32(5) of the UK Borders Act 2007 mandates that, unless certain circumstances apply, the Home Secretary must make a deportation order against a “foreign criminal”, defined in the same Act as a person who has been convicted of an offence and sentenced to 12 months’ imprisonment as a result.
The exception most commonly relied upon is that contained in section 33(2)(a): that removal of the individual would breach their rights under the European Convention on Human Rights (ECHR), and in particular the right to family and private life under Article 8.
Previously, these individual private or family life rights would be weighed against the public interest in deporting foreign criminals by the application of a five-stage test set out in the case of R (Razgar) v SSHD  UKHL 27, normally by a judge or panel of judges at the tribunal. Case law permitted inclusion of a wide variety of factors which could weigh for – or against – an individual’s family or private life rights under Article 8. As varied, in fact, as life itself.
That immigrants who had committed crimes not only had the right to appeal against a decision to deport them, but would occasionally win, caused – and continues to cause – significant ire in certain corners of the British print media. As a result, perhaps, the deportation of foreign criminals became something of a cause célèbre for then Home Secretary Theresa May.
The point made by the government was that, when balancing the rights of the individual to his or her family or private life under Article 8 against the public interest in deportation, too little weight was accorded to that public interest, and too much weight given to the unwieldy and nebulous rights guaranteed under Article 8 (you may remember mention of a cat, ownership of which was said to have strengthened a “private life” claim).
Notwithstanding the relatively low success rates in appeals (averaging out at around 30% for the years 2007-2015) and the lengths that appellants would need to go to succeed before the tribunals, the Secretary of State took her first tentative steps to limit the extent of rights guaranteed under Article 8 with the introduction of a raft of changes to the immigration rules that came into effect on 9 July 2012.
The July 2012 deportation rules
Until paragraphs 398, 399 and 399A were introduced into the immigration rules, the protection afforded by Article 8 to foreign criminals facing deportation was governed entirely by case law. These new rules attempted to define exactly what qualities a family or private life would need to have in order to outweigh the public interest in deportation.
The rules essentially put foreign criminals into three categories:
- Those sentenced to four or more years in prison;
- Those sentenced to 1-4 years in prison; and
- Individuals who had not necessarily been sentenced to time in prison, but
- whose offending had caused serious harm; or
- were persistent offenders and showed a particular disregard for the law
The rules then defined in what circumstances a person’s individual rights would outweigh the public interest in their deportation, but only for those sentenced to less than four years in prison (categories B & C). We will consider those with sentences of more than four years below.
The sprawling case law on Article 8 was essentially crammed into three exceptions: two relating to “family” life, and one to “private” life. For those sentenced to less than four years’ imprisonment, the public interest in deportation would be outweighed if an individual had:
- a parental relationship with a British child (or a child who has been in the UK for 7+ years), and it would be “unduly harsh” for that child to travel with the deported parent, AND it would be unduly harsh to leave the child in the UK without the deportee;
- a relationship with a British or settled person (someone with indefinite leave to remain), and it would be unduly harsh for the partner to travel with the deported partner, AND it would be unduly harsh for the partner to remain in the UK without the deportee; or
- been in the UK for most of their lives, are socially and culturally integrated in the country, AND would face very significant obstacles to integration on return.
However, those sentenced to over four years’ imprisonment, or those sentenced to less than four years but who are unable to meet one of the exceptions, would have to show that there existed “very compelling circumstances over and above” those set out in the three scenarios outlined above.
Part 5A Nationality Immigration Asylum Act 2002
While the courts accepted that the rules emphasised executive intention, given their introduction via the immigration rules rather than primary legislation, they found that this did not represent a substantial change in the law.
In a string of cases, beginning with MF (Nigeria) v SSHD  EWCA Civ 1192 and ending in the Supreme Court with the joined cases of Hesham Ali  UKSC 60 and Makhlouf  UKSC 59, the courts found that decision-makers would still be required, in the event that a foreign criminal could not fit within the prescribed exceptions, to assess whether a decision was proportionate in order to reach an Article 8 compliant decision.
Anticipating some time before judgment in Hesham Ali and Makhlouf that the writing was on the wall, the Secretary of State introduced substantially the same provisions as those contained within the rules into primary legislation on 28 July 2014 via the Immigration Act 2014.
This elevated the provisions previously contained in the immigration rules – a statement of executive policy – to the law of the land. The rules relevant to deportation cases to which all tribunals must “have regard” when deciding appeals against deportation are found at Part 5A of the Nationality Immigration and Asylum Act 2002 (as amended):
117A. Application of this Part
(1) This Part applies where a court or tribunal is required to determine whether a decision made under the Immigration Acts –
(a) breaches a person’s right to respect for private and family life under Article 8, and
(b) as a result would be unlawful under section 6 of the Human Rights Act 1998.
(2) In considering the public interest question, the court or tribunal must (in particular) have regard –
(a) in all cases, to the considerations listed in section 117B, and
(b) in cases concerning the deportation of foreign criminals, to the considerations listed in section 117C.
(3) In subsection (2), ‘the public interest question’ means the question of whether an interference with a person’s right to respect for private and family life is justified under Article 8(2).
117C. Additional considerations in cases involving foreign criminals
(1) The deportation of foreign criminals is in the public interest.
(2) The more serious the offence committed by a foreign criminal, the greater is the public interest in deportation of the criminal.
(3) In the case of a foreign criminal (‘C’) who has not been sentenced to a period of imprisonment of four years or more, the public interest requires C’s deportation unless Exception 1 or Exception 2 applies.
(4) Exception 1 applies where –
(a) C has been lawfully resident in the United Kingdom for most of C’s life,
(b) C is socially and culturally integrated in the United Kingdom, and
(c) there would be very significant obstacles to C’s integration into the country to which C is proposed to be deported.
(5) Exception 2 applies where C has a genuine and subsisting relationship with a qualifying partner, or a genuine and subsisting parental relationship with a qualifying child, and the effect of C’s deportation on the partner or child would be unduly harsh.
(6) In the case of a foreign criminal who has been sentenced to a period of imprisonment of at least four years, the public interest requires deportation unless there are very compelling circumstances, over and above those described in Exceptions 1 and 2.
(7) The considerations in subsections (1) to (6) are to be taken into account where a court or tribunal is considering a decision to deport a foreign criminal only to the extent that the reason for the decision was the offence or offences for which the criminal has been convicted.
The Act targets the same three categories of foreign criminal (dependent on length of sentence) as identified in the immigration rules and set out above.
The commencement of these provisions marked a further shift from the “free-wheeling Article 8 analysis” criticised in the case of Gulshan (Article 8 – new Rules – correct approach)  UKUT 640 (IAC), towards a more rigid statutory test governed by Part 5A.
The question of exactly how much of a shift has been the subject of sustained argument over the past several years.
Mr Justice McCloskey, then President of the Upper Tribunal’s Immigration and Asylum Chamber, referred to the regime introduced by Part 5A of the 2002 Act as “novel and challenging”, but which should be “construed and applied in a manner which makes it sensible, intelligible and workable” (see Treebhawon and Others (NIAA 2002 Part 5A – compelling circumstances test)  UKUT 13 (IAC).
The fact that a judge had to make this comment does rather suggests that Part 5A lacks some of those qualities. Indeed, as the President conceded in Treebhawon, “its structure and contents are, in certain respects, not altogether clear”.
In the key Supreme Court case of HA (Iraq) v Secretary of State for the Home Department  UKSC 22 (20 July 2022) (para 18) cited with the approval Lord Carnwath’s summary of the general approach to be taken to the legislation outlined in KO (Nigeria) v SSHD  UKSC 53:
(i) Part 5A of the 2002 Act must be approached in the context of the history of attempts by Government, with the support of Parliament, to clarify the application of article 8 in immigration cases. The purpose of the changes was to promote consistency, predictability and transparency in decision making and to reflect the Government’s and Parliament’s view of how as a matter of public policy, the balance should be struck
(ii) The new Immigration Rules, introduced with similar objectives to Part 5A, were designed to change the previous position comprehensively by “reflecting an assessment of all the factors relevant to the application of article 8”
(iii) Part 5A of the 2002 Act then took that a stage further by expressing the intended balance of the relevant factors in direct statutory form
(iv) The purpose was “to produce a straightforward set of rules, and in particular to narrow rather than widen the residual area of discretionary judgment for the court to take account of public interest or other factors not directly reflected in the wording of the statute”
‘Simplified’ Home Office rules
By way of a statement of changes to the immigration rules (HC 1160), the Home Office rules relating to deportation as set out in Part 13 were entirely substituted from 12 April 2023.
However, the intention was only to “simplify the format” and to make some “changes to the Article 8 thresholds … to correct inconsistencies and reflect legal judgments”, rather than make any substantive revision.
As stated by the Supreme Court in SC (Jamaica) (Appellant) v Secretary of State for the Home Department (Respondent)  UKSC 15, “the Immigration Rules and the NIAA 2002 are plainly intended [in respect of the rules on deportation] to have the same effect and should be construed so as to achieve that result”.
So Part 5A Nationality Immigration Asylum Act 2002 is really still the best place to start.
Fitting within an exception
The statutory scheme acknowledges that, in two sets of circumstances, a decision to deport will be in breach of an individual’s rights under Article 8 ECHR. These circumstances are known as Exception 1, which protects those who have been in the UK for significant periods of time, and Exception 2, which protects those with established relationships with a partner, or a child.
Remember that it is only offenders sentenced to less than four years’ imprisonment who will have access to an exception.
Exception 1 and the integration test
The integration exception is contained in section 117C(4) of the 2002 Act. In order to satisfy this exception the foreign criminal must show that they:
(a) have been lawfully resident in the United Kingdom for most of their life,
(b) are socially and culturally integrated in the United Kingdom, and
(c) there would be very significant obstacles to their integration into the country to which they are proposed to be deported.
In the case of foreign criminals, even where someone has been in the UK since early childhood, the courts have not been prepared to assume that they are socially and culturally integrated: see Akinyemi v SSHD (No1)  EWCA Civ 236 (para 28).
The case of CI (Nigeria) confirms at paragraph 75 that integration can be broken by criminal offending and imprisonment. See AM (Somalia) v Secretary of State for the Home Department  EWCA Civ 774 for a good example of a finding on this.
However, just because a person has been involved in criminal offending, that does not mean that they are not “socially and culturally integrated” in the UK, as the Upper Tribunal had found in respect of CI, who entered the UK at the age of 15 months and was then 27 years old. The Court of Appeal said that the finding had an “air of unreality about it” (para 81).
The court must also assess whether there are “very significant obstacles” to the deportee’s integration in the home country. “Integration” in this sense requires a “broad evaluative judgment” as to whether a deportee will be “enough of an insider in terms of understanding how life in the society in that other country is carried on”: Kamara v SSHD  EWCA Civ 813 (para 14).
The Supreme Court applied this test in Sanambar (Appellant) v Secretary of State for the Home Department (Respondent)  UKSC 30, and so it remains good law (paras 55 and 62).
See also AS v SSHD  EWCA Civ 1284 (paras 58-59) on the “enough of an insider” test. A decision-maker is not entitled to assume knowledge of “home” culture based simply on family connections: CI (Nigeria), para 86.
Exception 2 and the “unduly harsh” test
In order to satisfy this exception the foreign criminal must show a genuine and subsisting relationship with either a partner or a child, and that the effect deportation on either one would be “unduly harsh”:
(5) Exception 2 applies where C has a genuine and subsisting relationship with a qualifying partner, or a genuine and subsisting parental relationship with a qualifying child, and the effect of C’s deportation on the partner or child would be unduly harsh.
“Qualifying child” means a child who is British or who has lived in the UK for seven years or more: section 117D(1).
Biological parentage is not necessarily required: R (RK) v SSHD (s.117B(6); “parental relationship” (IJR)  UKUT 31 (IAC), although it must involve direct parental care, and be subsisting: SR (subsisting parental relationship – s117B(6))  UKUT 334.
A “qualifying partner” means a partner who is either British or settled: section 117D(1). The meaning of “partner” not limited to the Home Office definition, although this is a useful starting point: Buci (Part 5A: “partner”: Albania)  UKUT 87 (IAC).
As to the meaning of “unduly harsh”, the Supreme Court gave its view in the case KO (Nigeria) v SSHD  UKSC 53 at paragraph 23:
the expression “unduly harsh” seems clearly intended to introduce a higher hurdle than that of “reasonableness” under section 117B(6), taking account of the public interest in the deportation of foreign criminals. Further the word “unduly” implies an element of comparison. It assumes that there is a “due” level of “harshness”, that is a level which may be acceptable or justifiable in the relevant context. “Unduly” implies something going beyond that level. The relevant context is that set by section 117C(1), that is the public interest in the deportation of foreign criminals. One is looking for a degree of harshness going beyond what would necessarily be involved for any child faced with the deportation of a parent.
As we have previously lamented on these pages, “what would necessarily be involved for any child faced with deportation of a parent” is something of a moveable feast, leaving judges to essentially compare the case in front of them with whatever their interpretation of “what would necessarily be involved” might be.
In their interpretation of this test, given that the loss of a parent is inherently traumatic, the tribunal and Court of Appeal subsequently decided, something more than trauma was needed to trigger the “unduly harsh” exemption. Something like diagnosable psychiatric injury.
See PG (Jamaica)  EWCA Civ 1213 and KF (Nigeria)  EWCA Civ 2051 in the Court of Appeal, and RA (s.117C: ‘unduly harsh’; offence: seriousness) Iraq  UKUT 123 (IAC) and Imran (Section 117C(5); children, unduly harsh)  UKUT 83 (IAC) in the tribunal.
This line of authority came to an abrupt end in the Court of Appeal case of HA (Iraq) v Secretary of State for the Home Department  EWCA Civ 1176, later upheld by the Supreme Court  UKSC 22 (20 July 2022).
I don’t know if it is possible to feel joy when you read a case, but this came pretty close: Underhill LJ giving lead judgment provides significant “clarification” in respect of the correct approach, treading a fine line between respecting Lord Carwath’s interpretation in KO (Nigeria), and trying to unscramble the mess it had created.
The correct approach was in fact hiding in plain sight all along in MK (Sierra Leone) v Secretary of State for the Home Department  UKUT 223 (IAC) (para 46):
By way of self-direction, we are mindful that “unduly harsh” does not equate with uncomfortable, inconvenient, undesirable or merely difficult. Rather, it poses a considerably more elevated threshold. ‘Harsh’ in this context, denotes something severe, or bleak. It is the antithesis of pleasant or comfortable. Furthermore, the addition of the adverb “unduly” raises an already elevated standard still higher.
The Supreme Court suggested that that the statutory language has caused real difficulties for courts and tribunals. Our write-ups of the Court of Appeal and Supreme Court decisions are useful summaries, but the full judgments are must-reads for anyone involved in a deportation case.
In particular, the concurring opinion of Lord Peter Jackson in the Court of Appeal (paras 151-163) is strong on the longer-term impact of deportation on a child, and the permanence of the decision: that full weight of dislocation from a parent, across the whole span of life and time, must be considered and not just the immediate pain of separation.
“Very compelling circumstances”
Where a foreign national criminal is sentenced to more than four years in prison, they will only succeed in challenging deportation where “very compelling circumstances” can be demonstrated.
The section 117C(6) test is also a fallback for those sentenced between one to four years, but who cannot fit within the exceptions under sections 117C(4) or 117C(5): NA (Pakistan) v SSHD & Ors  EWCA Civ 662, paras 25-27.
When considering whether there are very compelling circumstances over and above Exceptions 1 and 2, all the relevant circumstances of the case will be considered and weighed against the very strong public interest in deportation.
Factors for consideration here include anything that could be said to have a bearing on an Article 8 (right to family and private life) proportionality assessment: Hesham Ali (paras 24 to 35).
In HA (Iraq), the Supreme Court summarised the relevant factors as identified mainly in Strasbourg caselaw, and in particular Unuane v United Kingdom (2021) 72 EHRR 24, which made reference to its earlier decisions in Boultif v Switzerland (2001) 33 EHRR 50 and Üner v The Netherlands (2006) 45 EHRR 14:
- the nature and seriousness of the offence committed by the applicant;
- the length of the applicant’s stay in the country from which he or she is to be expelled;
- the time elapsed since the offence was committed and the applicant’s conduct during that period;
- the nationalities of the various persons concerned;
- the applicant’s family situation, such as the length of the marriage, and other factors expressing the effectiveness of a couple’s family life;
- whether the spouse knew about the offence at the time when he or she entered into a family relationship;
- whether there are children of the marriage, and if so, their age; and
- the seriousness of the difficulties which the spouse is likely to encounter in the country to which the applicant is to be expelled …
- the best interests and well-being of the children, in particular the seriousness of the difficulties which any children of the applicant are likely to encounter in the country to which the applicant is to be expelled; and
- the solidity of social, cultural and family ties with the host country and with the country of destination.
In R (Kiarie and Byndloss) v SSHD  UKSC 42 the Supreme Court produced a similar – but not identical – list:
(a) the depth of the appellant’s integration in UK society in terms of family, employment and otherwise;
(b) the quality of his relationship with any child, partner or other family member in the UK;
(c) the extent to which any relationship with family members might reasonably be sustained even after deportation, whether by their joining him abroad or otherwise;
(d) the impact of his deportation on the need to safeguard and promote the welfare of any child in the UK;
(e) the likely strength of the obstacles to his integration in the society of the country of his nationality; and, surely in every case,
(f) any significant risk of his re-offending in the UK, judged, no doubt with difficulty, in the light of his criminal record set against the credibility of his probable assertions of remorse and reform
When reaching this stage of consideration, decision makers should be adopting a “balance sheet approach” with the factors militating both for and against deportation: Hesham Ali  UKSC 60 (paras 82-84).
Decision-makers must approach the question holistically, considering whether circumstances exist “by themselves or in conjunction with other factors relevant to the application of Article 8”: NA (Pakistan) v SSHD & Ors  EWCA Civ 662 (para 30).
And this last point is important. While an individual may have a relationship that does not meet the unduly harsh test, this should still be given due weight in the proportionality assessment.
The importance of the public interest
The deportation of foreign criminals is in the public interest, according to section 117C(1) of the 2002 Act.
The importance of ascribing proper weight to the public interest has been repeatedly emphasised by the higher courts (see in particular Laws LJ in SS (Nigeria)  1 WLR 998; and Hesham Ali  UKSC 60, para 38).
The failure by tribunal judges to properly reflect the importance of the public interest is one of the main reasons why initially successful appeals are later overturned. See Blocking deportation: seven tips for an appeal-proof tribunal judgment for further analysis of these issues.
Reduced public interest?
When approaching the “very compelling circumstances” test, the first task of the tribunal is to assess what weight it will be giving to the public interest in deportation in the case.
The more serious the offence, the greater the public interest in deportation: s117C(2), and the more compelling the “very compelling circumstances” will need to be in order to displace it.
But how do we determine seriousness? The starting point is the length of the sentence.
Lord Justice Underhill’s suggestion in HA Iraq that no other factor was relevant to seriousness was reversed by the Supreme Court, which found that “any evidence that bears on seriousness is relevant to that statutorily required assessment, not just the sentence imposed”.
And for example, the Supreme Court case of Sanambar v Secretary of State for the Home Department (Respondent)  UKSC 30 showed how the nature of the offence could be factored into an assessment of the seriousness of the offence when considering that case.
Once the tribunal has established the seriousness of the offence – and the associated weight to be accorded to the public interest – it can assess how compelling the circumstances in the appeal need to be for the public interest to be outweighed.
Spending all or almost all of one’s life lawfully resident in the United Kingdom is capable of being a very compelling circumstance over and above being resident here for most of one’s life:
- Akinyemi  EWCA Civ 236
- CI (Nigeria)  EWCA Civ 2027
- Garzon  EWCA Civ 1225
- JZ (Zambia)  EWCA Civ 116
Although this is not a given. In the cases of Mwesezi v SSHD  EWCA Civ 1104, AM (Somalia) v SSHD  EWCA Civ 774 and Olarewaju v SSHD  EWCA Civ 557, arrival during early childhood and very long residence had not been enough.
The criteria in the European Court of Human Rights case of Maslov v Austria (application no. 1638/03, see paras 71-75) still fall to be considered in long residence cases: NA (Pakistan)  EWCA Civ 662, para 38.
In Akinyemi v SSHD (No 2)  EWCA Civ 2098 the court took the view that the length of residence reduced the public interest in deportation on an exceptional basis (which seems to me to be confusing the sides of the balance sheet) (para 39):
It is necessary to approach the public interest flexibly, recognising that there will be cases where the person’s circumstances in the individual case reduce the legitimate and strong public interest in removal. The number of these cases will necessarily be very few i.e. they will be exceptional having regard to the legislation and the Rules.
Mr Akinyemi had been born in the UK and had never left and this reduced the public interest in his deportation.
In terms of how personal relationships factor in, it is difficult to discern a difference between the very compelling circumstances threshold under section 117C(6), and the unduly harsh threshold at section 117C(5). The case law on the latter test, discussed above, is therefore the best place to start.
The key point is that, even if a relationship does not meet the s117C(5) test, it should still be given weight in the proportionality assessment, and can be combined and weighed alongside other relevant Article 8 factors (length of residence, etc) when weighing up an individual’s Article 8 rights versus the public interest in deportation.
The Supreme Court in HA Iraq largely adopted the approach of Underhill LJ to weight that rehabilitation of a potential deportee and any reduced risk of re-offending can be given in the proportionality exercise:
positive evidence of rehabilitation, and thus of a reduced risk of re-offending, cannot be excluded from the overall proportionality exercise … Where a tribunal is able to make an assessment that the foreign criminal is unlikely to re-offend, that is a factor which can carry some weight in the balance when considering very compelling circumstances. The weight which it will bear will vary from case to case, but it will rarely be of great weight bearing in mind … the public interest in the deportation of criminals is not based only on the need to protect the public from further offending by the foreign criminal in question but also on wider policy considerations of deterrence and public concern.
The Supreme Court added that
In a case where the only evidence of rehabilitation is the fact that no further offences have been committed then, in general, that is likely to be of little or no material weight in the proportionality balance. If, on the other hand, there is evidence of positive rehabilitation which reduces the risk of further offending then that may have some weight as it bears on one element of the public interest in deportation, namely the protection of the public from further offending.
Underhill sounded a note of caution regarding tribunals’ ability to make assessments regarding risk of reoffending:
that tribunals will properly be cautious about their ability to make findings on the risk of re-offending, and will usually be unable to do so with any confidence based on no more than the undertaking of prison courses or mere assertions of reform by the offender or the absence of subsequent offending for what will typically be a relatively short period
The mental health of a deportee can be a relevant factor, both in terms of rehabilitation but also in the wider proportionality assessment:
Deportation test: a summary
In summary, the law on deportation is essentially this:
- Those convicted of a crime and sentenced to more than 1-4 years’ imprisonment will not be deported if they can show they fall into one of the exceptions outlined in section 117C(4) or 117C(5).
- Those who are convicted of a crime and sentenced to four or more years in prison (or more than one year and don’t fit within an exception) will need to show that there are “very compelling circumstances” in their case to outweigh the public interest in their removal.
- The matters to be taken into account when considering “very compelling circumstances” are not limited to relationships with partners and children and/or length of residence/integration only, and can include the full spectrum of Article 8 issues that would have previously been considered in the pre-2012 proportionality exercise: see Kiarie .
- The public interest in an individual’s removal is not the same in each case, and will vary depending on the seriousness of the offence: section 117C(2).
The major change that has occurred since 2012 is that, once the balance sheet of factors has been drawn up – on the one side, factors in favour of the public interest in deportation, appropriately fortified by reference to primary legislation, and on the other, factors in favour of the displacement of the public interest by reference to individual rights endowed by Article 8 ECHR – the weight given to the public interest has increased.
While the Secretary of State hasn’t necessarily succeeded in restricting the issues which can count in favour of an appellant’s Article 8 rights, she has succeeded in raising the bar as to what will outweigh the public interest in deportation.
The way the rules, and now primary legislation, have been drafted, means that there is now essentially a presumption that where a person has been sentenced to more than 12 months’ imprisonment and cannot fit within an exception, deportation will take place, unless very compelling circumstances can be shown that it should not.
This is an important difference from the pre-2012 regime, where judges arguably approached – or were supposed to approach – the question from a more neutral position, in the form of a proportionality assessment.
This article was originally published in July 2017 and has been updated to take account of developments since. It is correct as of the new date of publication shown.