“25. The statutory appeal power in section 104(3) permits an appeal to be allowed only if the district judge ought to have decided a question before him differently and if, had he decided it as he ought to have done, he would have had to discharge the appellant. The words "ought to have decided a question differently" (our italics) give a clear indication of the degree of error which has to be shown. The appeal must focus on error: what the judge ought to have decided differently, so as to mean that the appeal should be allowed. Extradition appeals are not re-hearings of evidence or mere repeats of submissions as to how factors should be weighed; courts normally have to respect the findings of fact made by the district judge, especially if he has heard oral evidence. The true focus is not on establishing a judicial review type of error, as a key to opening up a decision so that the appellate court can undertake the whole evaluation afresh. This can lead to a misplaced focus on omissions from judgments or on points not expressly dealt with in order to invite the court to start afresh, an approach which risks detracting from the proper appellate function. That is not what Shaw or Belbin was aiming at. Both cases intended to place firm limits on the scope for re-argument at the appellate hearing, while recognising that the appellate court is not obliged to find a judicial review type error before it can say that the judge's decision was wrong, and the appeal should be allowed. 26. The true approach is more simply expressed by requiring the appellate court to decide whether the decision of the district judge was wrong. What was said in Celinski and Re B (A Child) are apposite, even if decided in the context of article 8. In effect, the test is the same here. The appellate court is entitled to stand back and say that a question ought to have been decided differently because the overall evaluation was wrong: crucial factors should have been weighed so significantly differently as to make the decision wrong, such that the appeal in consequence should be allowed.”
"Such an assumption is an essential element in the task of weighing, on the one hand, the public interest in extradition against, on the other hand, its effects on individual human rights. This is not to say that the latter can never prevail. It does mean, however, that the interference with human rights will have to be extremely serious if the public interest is to be outweighed." (para 55) "
"'Exceptional circumstances' is a phrase that says little about the nature of the circumstances. Instead of saying that interference with article 8 rights can only outweigh the importance of extradition in exceptional circumstances it is more accurate and more helpful, to say that the consequences of interference with article 8 rights must be exceptionally serious before this can outweigh the importance of extradition. A judge should not be criticised if, as part of his process of reasoning, he considers how, if at all, the nature and extent of the impact of extradition on family life would differ from the normal consequences of extradition." (para 56). (5) Deciding whether extradition will be compatible with Convention rights is a fact-specific exercise. "[A]t this point ... it is legitimate for the judge to consider whether there are any relevant features that are unusually or exceptionally compelling. In the absence of such features, the consideration is likely to be relatively brief. If, however, the nature or extent of the interference with article 8 rights is exceptionally serious, careful consideration must be given to whether such interference is justified." (para 62). (6) In such a situation the gravity, or lack of gravity, of the offence may be material (para 62). Rejecting a submission that the gravity of the offence can never be of relevance where an issue of proportionality arises in the human rights context, Lord Phillips continued: "
"[T]he family unit had to be considered as a whole, and each family member had to be regarded as a victim. I consider that this is equally the position in the context of extradition." (para 64) "
"It would not be right to say that a person's extradition can never be incompatible with his right to respect for his family life underarticle 8 of the European Convention on Human Rights . But resisting extradition on this ground is not easy. The question in each case is whether it is permitted by article 8(2). Clearly some interference with the right is inevitable in a process of this kind, which by long established practice is seen as necessary in a democratic society for the prevention of disorder or crime. That aim extends across international boundaries, and it is one which this country is bound by its treaty obligations to give effect to."
"...[T]he reality is that it is only if some exceptionally compelling feature, or combination of features, is present that the interference with the article 8 right that results from extradition will fail to meet the test of proportionality. The public interest in giving effect to a request for extradition is a constant factor, and it will always be a powerful consideration to which great weight must be attached. The more serious the offence the greater the weight that is to be attached to it. ... Separation by the person from his family life in this country and the distress and disruption that this causes, the extent of which is bound to vary widely from case to case, will be inevitable. The area for debate is likely to be narrow. What is the extra compelling element that marks the given case out from the generality? Does it carry enough weight to overcome the public interest in giving effect to the request?" 35. In his concurring judgment Lord Brown of Eaton-under-Heywood agreed (at para 95) that it would be only in the rarest cases that article 8 would be capable of being successfully invoked undersection 87 of the Extradition Act 2003 . He expressly endorsed the observation of Lord Phillips that only the gravest effects of interference with family life will be capable of rendering extradition disproportionate to the public interest it serves. Referring (at para 95) to Lord Phillips' example concerning impact on innocent family members at para 65 (para 33(7) above) as a rare case where the "defence" might succeed, he added that it was difficult to think of many others, particularly where the charges were plainly serious. He concluded (at para 99): "
"At the same time, we must exercise caution not to impose our views about the seriousness of the offence or offences under consideration or the level of sentences or the arrangements for prisoner release which we are informed are likely to operate in the country seeking extradition." 39. In Polish Judicial Authority v Celinski[2015] EWHC 1274 (Admin) ,[2016] 1 WLR 551 ("
“42. Contrary to Lord Brown's prediction in Norris, the incidence of extradition cases in which article 8 is invoked has shown no sign of declining. On the contrary, it appears that it is continuing unabated. We were told by Mr Louis Mably KC that a random and unscientific sample of contested extradition hearings before the Westminster Magistrates' Court between 10 and21 March 2025 showed that article 8 was invoked in 22 out of 23 cases examined. It seems that an article 8 "defence" is raised almost as a matter of course in virtually every extradition case. 43. We have set out above relevant passages in Norris, H(H) and Celinski at some length because it is clear that there is a need to reiterate the essential points they make. Cases in which a submission founded onarticle 8 ECHR may defeat the public interest in extradition will be rare. It is most unlikely that extradition will be held to be disproportionate on the ground of interference with private life. Even in cases where interference with family life is relied upon, it will only be in cases of exceptionally severe impact on family life that anarticle 8 ECHR "defence" will have any prospect of success.”
“32. In HH (Italy), at [8], Lady Hale held that delay on the part of the authorities was relevant to the question whether extradition was compatible with Article 8, whether the delay was attributable to the issuing or executing state. At [46], when addressing F-K, a Polish case joined with HH's, she made clear that this was so even in a case where the appellant was a fugitive. This was because, whatever the reasons for it, a lack of urgency in bringing the requested person to justice was some indication of the importance attached by the authorities to the offending. Delay was particularly relevant in a case where in the intervening period the appellant had made a "new, useful and blameless life" in the UK without any reason to believe that the authorities of the requesting state were seeking his or her return: [47]. As respects F-K's case, the other members of the Supreme Court agreed with Lady Hale. 33. In a series of subsequent cases, Article 8 appeals were allowed in part on the ground of delay by the NCA in certifying warrants, even where the appellant was a fugitive from justice, often in cases where there had also been significant delay by the requesting state in issuing the European arrest warrant.”
“48. When an issuing state seeks an individual who has fled outside its borders to evade its justice system, without indicating which country he has fled to, that state is under no obligation to devote resources to making enquiries about his whereabouts. By the same token, a decision by an issuing state to enter an alert on SIS, without more, does not trigger an obligation on the judicial authority or police force of every other Member State to check its own official records or otherwise search for the individual concerned. In this situation, as the Divisional Court put it in RT, "neither the foreign judicial authority nor the NCA can be expected to explore the byways and alleyways of British officialdom to discover whether someone is in this country". This informs the approach to questions of delay in Article 8 cases where the appellant is a fugitive. 49. It is important, however, to note that, in the Divisional Court's reasoning in RT, what the issuing state could not be expected to do was make enquiries "to discover whether someone is in this country". As the careful analysis of Choudhury J in Cis makes clear, the position may be different where the authorities of the issuing state know that the requested person is in this country, as in Cieczka. In such a case, there is a step which those authorities could be expected to take, namely, make a direct request to the authorities here. There may, of course, be an explanation why that step was not taken. If so, the authorities in the issuing state should be prepared to give it. If no satisfactory explanation is given, the UK court is likely to assume that there is none. This is a factor that can be relevant to the Article 8 balancing exercise. 50. Once the UK authorities have received a direct request, a question may arise as to the significance to be attached to any subsequent delay between the receipt of the request and the arrest of the requested person. The court is unlikely to be impressed with a complaint made by a requested person who has taken steps to evade arrest or hide his location in the UK, as had the appellant in RT. Furthermore, as was recognised in Wolack and Zimackis, the court must be realistic about the resource constraints operating on the NCA and on UK police forces. But a long delay can properly be weighed in the Article 8 balance in cases where it would have been easy to locate the requested person and the UK authorities have failed to take even the most minimal steps to do so. Where there has been a long delay between a direct request from the authorities of the issuing state and the execution of the warrant in the UK, the NCA should be prepared to give at least a brief explanation of any steps taken to execute the warrant. If no such explanation is given, the court may assume that there is none. This too is a factor which may be of relevance to the Article 8 balancing exercise. 51. Delay may be relevant to the Article 8 balance in one or both of two ways. As Lady Hale said in HH, inadequately explained delay on the part of the issuing state may cast light on the seriousness attached by that state to the offending in respect of which extradition is sought. Inadequately explained delay on the part of the executing state is unlikely to bear on that issue, but may still be relevant when assessing the weight to be given to any interference with private and/or family life to which extradition gives rise. This is likely to be of particular importance in cases where extradition would disrupt family relationships which have started or significantly developed during the period of delay, but it may also be relevant where the requested person has built up a private life in this country during that period. The weight to be given to the interference is attenuated, but not extinguished, by the fact that the requested person came to this country as a fugitive from justice.”
“47. I have been referred to a substantial number of extradition cases where the issue of time spent on an electronically monitored curfew and other bail conditions has been considered, namely: R (Einikis) v The Ministry of Justice, Lithuania[2014] EWHC 2325 (Admin) ; Dezda v Regional Court in Olsztyn (Poland)[2022] EWHC 838 ; Prusianu v Braila Court of Law (Romania)[2022] EWHC 1929 (Admin) ; The King on the Application of Muizarijis v The Prosecutor General of the Republic of Latvia[2022] EWHC 2751 (Admin) ; Hojden v Poland[2022] EWHC 2725 (Admin) ; Brindusa v Law Court of Targoviste (Romania)[2023] EWHC 3372 (Admin) ; Begum v District Court of Zutphen (Netherlands)[2023] EWHC 3291 (Admin) ; Toma v Romania[2024] EWHC 183 (Admin) ; Mario Bakai v District Court in Dunaiska Streda (A Slovakian Judicial Authority)[2024] EWHC 1768 (Admin) ; and, most recently, Polom v Regional Court in Bydgoszcz (Poland)[2024] EWHC 2708 (Admin) . From these authorities, I derive the following principles: (1) For the purposes of domestic law on sentencing, "qualifying curfew" is an electronically monitored curfew of at least 9 hours duration a day. However, it is clear that, in an extradition case, both qualifying curfew and non-qualifying curfew (i.e. less than 9 hours duration per day) in the UK is capable of being a factor properly to be taken into account in the Article 8 balancing exercise: Hojden §49. (2) What falls to be assessed is the degree of the deprivation of liberty or restriction on freedom of movement and autonomy: Prusianu §49. This might arise both from an electronically monitored curfew and from an obligation to report to a police station (Einikis) (or perhaps other bail conditions) or a combination of these elements. The court will consider whether the curfew has had a material effect on a person's ability to work, study or maintain family life, in which case the curfew will be afforded greater weight (than, for example, merely preventing late-evening socialising): Hojden §50. (3) Each case turns on its own facts. The assessment of a curfew as a relevant factor and the overall balance is an intensely fact-specific exercise: Polom §44. Little is to be gained by comparing the facts of previous cases. The cases vary as regards the seriousness of the underlying offence, the length of sentence to be served, the number of hours of the daily curfew and the amount of time that the requested person has been subject to that curfew. (4) In the cited cases where curfew was considered, in some cases, extradition was ordered; in others it was taken into account as a factor which led to extradition being discharged. As a matter of fact, the shortest curfew duration which has been taken into account in the cases referred to above, was a curfew of 4 hours in the case of Prusianu. (5) Amongst the factors relevant to the court considering the issue is whether or not it has before it evidence as to how the requesting state will deal with the time spent under UK curfew: see, for example, Polom §44. (6) As a matter of general principle, where the public interest in extradition is otherwise very strong, time spent on curfew is unlikely to tip the balance against extradition. On the other hand, in a case which is otherwise marginal, time spent on curfew might tip the balance against extradition.”
"The partner said the children and herself were living in a different house from patient"
"although the [Convention] rights may be engaged, legitimate immigration control will almost certainly mean that derogation from the rights will be proper and will not be disproportionate."
“20.In an article 8 case where this question is reached, the ultimate question for the appellate immigration authority is whether the refusal of leave to enter or remain, in circumstances where the life of the family cannot reasonably be expected to be enjoyed elsewhere, taking full account of all considerations weighing in favour of the refusal, prejudices the family life of the applicant in a manner sufficiently serious to amount to a breach of the fundamental right protected by article 8. If the answer to this question is affirmative, the refusal is unlawful and the authority must so decide. It is not necessary that the appellate immigration authority, directing itself along the lines indicated in this opinion, need ask in addition whether the case meets a test of exceptionality. The suggestion that it should is based on an observation of Lord Bingham in Razgar above, para 20. He was there expressing an expectation, shared with the Immigration Appeal Tribunal, that the number of claimants not covered by the Rules and supplementary directions but entitled to succeed under article 8 would be a very small minority. That is still his expectation. But he was not purporting to lay down a legal test.”
“… if tribunals treat the essential question as being ‘is this level of harshness out of the ordinary?’ they may be tempted to find that Exception 2 does not apply simply on the basis that the situation fits into some commonly-encountered pattern. That would be dangerous. How a child will be affected by a parent’s deportation will depend on an almost infinitely variable range of circumstances and it is not possible to identify a baseline of ‘ordinariness’. Simply by way of example, the degree of harshness of the impact may be affected by the child’s age; by whether the parent lives with them (NB that a divorced or separated father may still have a genuine and subsisting relationship with a child who lives with the mother); by the degree of the child’s emotional dependence on the parent; by the financial consequences of his deportation; by the availability of emotional and financial support from a remaining parent and other family members; by the practicability of maintaining a relationship with the deported parent; and of course by all the individual characteristics of the child.” 39. Sixthly, the Secretary of State’s suggested approach is likely to lead to perverse results. The respondents give the example of a case involving the impact of parental deportation on an eight year old who cohabits and has a very close relationship with the parent. As the norm for “any child” in that qualifying child’s position would be that the effect of separation would be considerable, it would allow the significant effect of that deportation to be treated as acceptably harsh and thereafter discounted from further consideration. This can be contrasted with the case of a 17 year old who lives separately from the parent and whose relationship is at the very lowest end of the genuine and subsisting relationship spectrum. As the norm for “any child” in that qualifying child’s position would be that the effect of separation would be of much more limited significance, it is likely to be easier to satisfy the unduly harsh test because it will be more straightforward to identify particular features that take the case above the much lower baseline level than the higher bar set for the highly dependent eight year old. 40. Finally, all these highlighted difficulties reinforce the conclusion that Lord Carnwath cannot have been contemplating a notional comparator test. None of them are considered. Had it been intended to introduce such a test there is no doubt that many of these issues would have needed to be and would have been addressed. There is no hint of that in the judgment of Lord Carnwath, or indeed in the arguments before the court.”