KB v The Secretary of State for the Home Department

In an article 8 proportionality assessment, a tribunal may use a balance sheet to identify and weigh competing considerations. It must not assign numerical scores to those considerations. A points-based system is inherently unsuitable because it conceals the evaluative reasoning, risks arbitrary self-imposed limits on individual factors, and fails to account for the interaction between factors.

Delay in immigration decision-making must be assessed contextually. It may strengthen private or family life, affect the quality of relationships formed during an uncertain immigration status, or reduce the weight of immigration control where it demonstrates systemic dysfunction. Internal relocation to avoid harm from non-state actors also requires an assessment of the persecutors’ motivation to trace the individual.

The appellant, an Albanian national and accepted victim of trafficking for forced criminality, appealed against a First-tier Tribunal decision promulgated on 24 August 2021. The First-tier Tribunal found that he faced a real risk from his former traffickers in his home area but could reasonably relocate elsewhere in Albania. It also dismissed his article 8 claim after using a numerical points system to balance the competing considerations.

The Upper Tribunal considered whether the internal-relocation assessment had addressed the former traffickers’ motivation to pursue him, and whether the article 8 proportionality assessment could lawfully employ scores for factors on each side of the balance.

1. The appeal was allowed. The First-tier Tribunal decision involved material errors of law. The protection appeal was remitted on a confined basis, and fresh findings were required on article 8.

2. Where an appellant faces harm from a non-state actor in the home area, the effectiveness of internal relocation depends in part on the actor’s motivation to locate and pursue the appellant. The First-tier Tribunal had found a real risk from K and BL in the appellant’s home area, but did not assess whether they would be motivated to trace him elsewhere in Albania. That omission was material. Their lack of influence outside the local area did not answer whether they could pose a direct threat after locating him.

3. The remaining protection findings were preserved. The First-tier Tribunal was entitled to conclude that the appellant did not face a risk from unrelated traffickers throughout Albania. It had properly considered his previous trafficking, age, lack of significant vulnerability or health problems, family support and the absence of sexual-exploitation stigma. Subject to the omitted motivation issue, its conclusion that relocation would be reasonable and not unduly harsh was adequately supported.

4. A classic article 8 balance sheet is encouraged. It requires the tribunal to identify the factors favouring immigration control and those favouring private or family life, explain the weight given to them, and reach a reasoned evaluative conclusion. It does not permit a judicially invented points system. Numerical scoring fails to explain why weight has been assigned, may arbitrarily cap discrete considerations, and may fail to recognise that factors can interact so that their combined effect exceeds their separate effects.

5. The First-tier Tribunal’s deduction of one point for each year of delay was inconsistent with the contextual approach in EB (Kosovo) v SSHD. Its further refusal to consider delay in relation to private life, on the basis that it had already reduced the public-interest weight, was also wrong. The article 8 decision was set aside and remitted for fresh findings.

• Upper Tribunal (Immigration and Asylum Chamber): Allowed the appeal, set aside the First-tier Tribunal decision for material errors of law, and remitted the protection issue on the limited internal-relocation question and the article 8 claim for fresh findings.
• First-tier Tribunal: Decision promulgated on 24 August 2021. It found a home-area risk from the appellant’s former traffickers, held that internal relocation within Albania was reasonable, and dismissed the article 8 claim.