Rafal Tomasz Galicki v The District Court in Gdansk, Poland [2025] EWHC 811 (Admin)

[2025] EWHC 811 (Admin)Case No AC-2024-LON-001718
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
ADMINISTRATIVE COURT
In the matter of an appeal pursuant to section 26 of the Extradition Act 2003
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 03/04/2025
Before
MR JUSTICE CALVER
Between
RAFAL TOMASZ GALICKIAppellantTHE DISTRICT COURT IN GDANSK, POLANDRespondent
Ania Grudzinska (instructed by Lawrence & Co Solicitors) for AppellantDavid Ball (instructed by the Crown Prosecution Service) for RespondentHearing Hearing date: 01 April 2025
Approved JudgmentThis judgment was handed down remotely at 14:00 on Thursday 03 April 2025 by circulation to the parties or their representatives by e-mail and by release to the National Archives.

INTRODUCTION

[1]This is the appeal of Rafal Tomasz Galicki (“the Appellant”) pursuant to s 26 of the Extradition Act 2003 (“the EA”) against the decision of District Judge Goldspring (“the District Judge”) dated 13 May 2024 to order his extradition to Poland. Permission to appeal was granted by Garnham J on 29 November 2024, albeit ‘with considerable reluctance’. The Judge also allowed the Appellant’s application to admit fresh evidence concerning his caring responsibilities, which ‘suggest[ed] that the factual background to the case has changed radically’ and supported the grant of permission to appeal.[2]The Appellant’s sole ground of appeal is that the Judge erred in finding that extradition was a proportionate interference with his Art. 8 ECHR right to private and family life. He submits that the Judge failed to consider:a. The likelihood of the Appellant’s early release by the Polish authorities once he had served half of his sentence;b. Accepting that early release is likely, the Appellant would have only had to serve five more months of his sentence before being released at the halfway point;c. The fact that the Appellant had been subjected to a qualifying curfew between September to December 2023, and an electronically monitored curfew between December 2023 to the present day; andd. The fact that the Appellant was, for a period between April 2024 to January 2025, the sole carer of his children and there would be a significant financial and emotional impact upon them if he is extradited.[3]On 23 March 2025, the Appellant filed an urgent application to:a. Vacate the appeal hearing listed for 1 April 2025;b. Stay the appeal pending the Supreme Court’s decision in Andrysiewicz v Circuit Court in Lodz, Poland UKSC/2024/0109; andc. Adduce fresh evidence in the form of the Appellant’s addendum proof of evidence with exhibits, and witness statements from the Appellant’s wife and mother-in-law, all dated 20 March 2025 This is not opposed and I grant the application. .

BACKGROUND FACTS AND PROCEDURAL HISTORY

[4]The Appellant’s extradition is sought pursuant to a conviction warrant issued by the Respondent on 13 September 2023 and certified by the NCA on 14 September 2023. The offence and sentence in Poland[5]The conviction warrant relates to an offence committed on 6 May 2021, when contrary to Art. 62(2) of the (Polish) Act of 29 July 2005 on counteracting drug abuse, the Appellant was found in possession of psychotropic substances in the form of:(i) 5.48 grams of amphetamine, being between 5 and 13 single commercial portions of this substance; and(ii) 1033 grams of intoxicants in the form of dried cannabis plant being between 1000 and 2000 single portions of that substance; and(iii) 12.25 grams of cocaine, being between 12 and 122 single portions of that substance.[6]The Appellant was subsequently sentenced to a term of 1 year and 10 months’ custody by the Regional Court in Malbork on 12 October 2021, which was rectified by the verdict of the District Court in Gdansk dated 17 March 2022. The Appellant appeared in person at his trial and at his sentencing.[7]The Appellant had no restriction on leaving Poland but was under an obligation to report any change of address, of which he was informed (and signed in acknowledgement of) on 7 May 2021. He did not comply with that obligation and subsequently left the country, making his way to the UK. He did not collect the subsequent summons, summonsing him to surrender to custody to serve the remainder of his sentence. He is accordingly a fugitive.[8]It is common ground that the Appellant served six months by way of qualifying remand in Poland prior to the extradition request, which means he has a remaining term to serve of 1 year, 4 months and 20 days.[9]On 13 March 2022 the Appellant submitted an application in the UK under the EU Settlement Scheme. On 2 July 2022 the Home Office rejected his EU Settlement Scheme application because he did not meet the eligibility requirements for settled status.[10]On 5 December 2022 he submitted a further application under the EU Settlement Scheme. On 2 March 2023, following completed checks and evidence submitted previously, he was considered to have completed a continuous period of 5 years’ residence in the UK. He was granted settled status. Settled status issue[11]However, in his application for Settled Status he answered as follows to the following question: Q. Have you ever been convicted of a criminal offence, or arrested or charged with an offence that you are on trial for or awaiting trial? A. No[12]That answer was untruthful, and the Home Office’s position (contained in a witness statement of Ms Catherine Warner dated 31 January 2024) appears to be that the Appellant is subject to immigration control under the Immigration Act 1971 and is liable to deportation or administrative removal from the UK as a result. However, the Home Office has not taken any action to remove the Appellant since learning of his conviction in Poland for some 15 months now. As a result, it seems to me that this is not something which weighs in the balance in favour of extradition in this case and nor did the District Judge consider that it did: see paragraphs 36 and 47 of his judgment. Arrest and extradition proceedings[13]The Appellant was arrested on 9 September 2023 and produced at Westminster Magistrates’ Court on 12 September 2023. As the arrest warrant and certificate were not available an extension was subsequently granted, and he was produced again on 14 September 2023 when extradition proceedings were opened. The Appellant was also granted conditional bail on that date, including an electronically monitored curfew between 9 pm to 5 am daily. On 4 December 2023, his curfew hours were varied to between 11 pm and 5 am daily. It follows that at the time of this hearing, he has been subject to an electronic curfew now for some 18 months.[14]The Appellant’s extradition hearing took place on 2 January 2024 before the District Judge. A dispute arose as to the Appellant’s evidence concerning his settled (immigration) status. The hearing was accordingly adjourned and a further hearing took place in March 2024 to allow him time to obtain documentary evidence. In his judgment dated 13 May 2024 the District Judge ordered the Appellant’s extradition to Poland.[15]The sole ground of challenge before the Judge (as before this Court) was under s. 21 EA and Art. 8 ECHR. In his judgment, the District Judge reminded himself of the relevant principles as set out in the well-known cases of Norris v USA[2010] UKSC 9; HH v Italy[2012] UKSC 25andPolish Judicial Authorities v Celinski [2015] EWHC 1275 (Admin), as well as the relevant factors to be considered in an Art. 8 balancing exercise.[16]The Judge considered the Appellant’s evidence as to his caring responsibilities for his children and the circumstances in which he had left Poland. He concluded that the Appellant was a fugitive from justice (which is not in dispute), having left Poland without reporting any change of address when he knew he had been convicted and was subject to a sentence of imprisonment.[17]Having reminded himself of the correct approach to the balancing exercise which he had to carry out as laid down in Celinski, the Judge proceeded to carry it out. However, the possibility of the early release from his sentence was not raised by the Appellant and it was accordingly not taken into consideration by the Judge. He rejected the Art. 8 challenge as follows:
“41. In conducting the balancing exercise I consider the following matters relevant. Factors in Favour of Surrender • The public interest in ensuring extradition arrangements are honoured; • The UK should not be perceived as a safe haven for those seeking to evade justice; • The offending is serious; • The RP is a fugitive and left Poland to evade justice; • There is no delay in the proceedings and the AW was issued as soon as we informed the JA that the RP was in the UK; and • The RP and his family probably have no right to settle in the UK, they are merely here to avoid justice as a family. Factors in favour of discharge • He has a young family who depend on him financially and emotionally. • He has worked and contributed while here. Conclusion 42. As already highlighted the public interest is high, the offending serious and the RP is a fugitive. Set against that I accept the RP maintains work and provides financially for his family and that potentially without his income his family will struggle to make rent payments and life will be financially challenging, although the welfare state will step in and help in those circumstances. 43. The financial situation will be militated by the welfare system, many families both in and out of work use the system to support themselves, it will provide the minimum support, I accept ,but nonetheless will do so. His partner is in work, I accept juggling work and childcare will be more difficult without him but the combination of some help from her mother, although limited , the prospect of additional hours and higher wages and benefits will provide the necessary safety blanket for the family. I do not accept his partner cannot stay, she has found and kept employment, it is overplaying his hand to suggest otherwise. 44. I also accept that all the RP’s family will feel his absence, and the children will be particularly impacted by being separated from their father. 45. The countervailing matters rightly focus around the impact on the children. There will be, I accept, some emotional and practical harm in the event of surrender but I am equally satisfied that the harm will be no more than is inevitable in all cases of separation be it domestic custodial sentences or extradition. 46. However, no evidence was adduced by the RP of more harm than is inevitable. I have no doubt his partner will continue to provide a stable, secure and loving environment for them, as she has before, there is evidence that she can cope and that is a testament to her as a mother. 48. In the circumstances the surrender of the RP is a proportionate interference of his and his families (sic) Article 8 ECHR rights. 49. I am satisfied that the factors in favour of discharge are not sufficient to outweigh the public interest and the request is a proportionate interference of all their article 8 ECHR rights, I must therefore reject the challenge.”
Factors in Favour of Surrender Factors in favour of discharge Conclusion Grounds of appeal

Conclusion

[18]The Appellant applied for permission to appeal on 21 May 2024 on the sole ground of section 21 EA/Art. 8 ECHR. The perfected grounds of appeal were filed on 12 July 2024, in which(a) the Judge’s findings as to the impact upon the Appellant’s children were challenged (it is said by reason of the Appellant being a sole carer, his wife having left the UK) and(b) the issue of early release by reason of the Appellant being subject to an electronically monitored curfew was raised. As to (b), it is stated as follows in the relevant part of the Appellant’s Perfected Grounds of Appeal: Early release by reason of being subject to electronically monitored curfew 30. It is submitted that the District Judge ought to have considered the question of the Applicant’s electronically monitored curfew hours as a form of restriction on his liberty within the context of article 8. 31. The Applicant has been subject to an electronically monitored curfew since his arrest on 9th September 2023 between the hours of 23:00 and 05:00 each night. His liberty has, therefore, been restricted to some extent over the last nine months. 32. Following the decision in Brindusa v Romania [2023] EWHC 3372 (Admim) (sic), Holgate J considered the question of the significance of electronically monitored curfew in the following way: [8] “It is common ground that this restriction on personal freedom would not be taken into account in Romania so as to reduce the sentence of 11 months’ imprisonment to be served. But in this jurisdiction the curfew would be treated as a qualifying curfew under section 240A of the Criminal Justice Act 2003. Each day of the curfew would be treated as equivalent to a half-day in custody. [9] The High Court has decided that the deprivation of liberty resulting from a curfew of less than 9 hours a day, in other words a non-qualifying curfew, may be taken into account as a factor weighing against extradition in the balancing exercise required under Article 8. (see Einikias v Lithuania [2014] EWHC 2325 [14-15] ; Prusianu v Romania [2023] 1 WLR 495 [49]; and Muizarajas v Latvia [2022] EWHC 2751 (Admin) [21-22]. It is common ground in this case that the same must also apply to a longer, qualifying curfew.” 33. Whilst the sentence which the Applicant has to serve is not the shortest (1 year, 4 months and 20 days remaining to be served), when considered in the context of the impact of extradition upon his children, then the time he has already spent subject to electronically monitored curfew, it is reasonably arguable that the public interest in extradition would be diminished and that the District Judge was wrong not to consider this point.[19]It was only belatedly on 23 March 2025 that the Appellant filed an urgent application to vacate the appeal hearing listed for 1 April 2025 and to stay the appeal pending the Supreme Court’s decision in Andrysiewicz v Circuit Court in Lodz, Poland UKSC/2024/0109.

THE LAW ON EARLY RELEASE

[20]Article 77 of the Polish Penal Code grants the Polish courts the power to order the release of an offender on licence, having regard to:
“his or her attitude, personal attributes and features, lifestyle prior to carrying out the offence, the circumstances of the offence and the offender's conduct after committing the offence and while serving the sentence, [which] justify the assumption that the offender will, after release, respect the legal order, and in particular that he or she will not re-offend”
. Article 78(1) of the Code provides that early release may only be ordered where an offender has served at least half of their sentence.[21]There is a debate in our domestic case law as to whether and the extent to which, for the purposes of carrying out the Art. 8 ECHR balancing exercise, the domestic courts should seek to anticipate any potential early release decision by a Polish court applying Article 77 of the Polish Penal Code. In Andrysiewicz v Poland [2024] EWHC 1399 (Admin), Swift J identified three possible approaches to this question:a. The court considering the extradition request should not attach any weight to the possibility of early release under Art. 77, that being a matter solely for the Polish domestic courts: Sobcyzk v Poland [2017] EWHC 3353 (Admin) (Andrysiewicz, [24]);b. It would be ‘unrealistic’ not to recognise the existence of Art. 77 (although Swift J added that recognising the existence of Art. 77 was not controversial, but rather what the effect of that recognition entails): Dobrowolski v Poland [2023] EWHC 763 (Admin) (Andrysiewicz, [31]); andc. The court should form a view on the likely merits of a potential Art. 77 application for early release, therefore allowing it to attach significant weight to this factor in the Art. 8 ECHR balancing exercise: Chmura and Borkowski v Poland [2015] EWHC 804 (Admin) (Andrysiewicz, [33]).[22]At one end of the spectrum are cases such as Sobczyk, in which the Divisional Court (Gross LJ, Nicol J) considered the effect of the passing of time between the extradition hearing and the appeal. By the date of the appeal, time spent in custody meant that the appellant was 11 weeks short of the half-way point of his sentence when he would be eligible to apply for early release if extradited to Poland. The court held that the appellant was still short of the half-way point by some margin; and even at the half-way point, it would be a matter for the discretion of the Polish court as to whether the remainder of the sentence should be reduced or suspended. The court considered that domestic courts should be slow to usurp the judicial and sentencing processes of a requesting state, stating at [29]:
“It is not for us to anticipate how any such discretion may be exercised.”
[23]Farbey J recently adopted the same approach in Dablewski v Poland [2024] EWHC 957 (Admin) in which she stated:
“50. I would prefer the approach in Sobczyk. The application of law and practice to the question of the appellant’s early release is entirely a matter for the Polish authorities. Ms Hinton seemed to suggest that the mere chance to submit an application for early release is a relevant factor to be weighed; but the chance to apply cannot advance the appellant’s appeal in the absence of some principled reason to give the application itself a weighting in the Celinski balance. I see no such reason. Conversely, there is reason not to give it weight because it undermines the principle that sentencing law and practice must be left to requesting states to implement. The firmer and surer footing is that this court should not prejudge the matter.”
[24]Swift J likewise considered in Andrysiewicz that the court should go no further than simply acknowledging the existence of Art. 77 (i.e., option (b) above), and it would not be correct to attach substantial weight to the possibility that the appellant’s Art. 77 application could result in her early release (at [34]-[37]).[25]At the other end of the judicial spectrum are cases such as Dobrowolski v Poland [2023] EWHC 763 (Admin) at [14]-[15] (Fordham J) and the more recent judgment of Sir Duncan Ousley in Talaga v Poland [2024] EWHC 3015 (Admin) at [49]-[57], in which he stated in particular at [52]:
“If regard can be had to the existence of the discretionary release power, in any way other than a purely and pointless way by formal noting it, it is necessary to ascertain when the release provisions would arise, and then to make an assessment of the prospects of an appellant benefiting from the early release. The difficulty I find with what Swift J says lies in the way in which options 2 and 3 are differentiated by him when both "options" accept the legal relevance of the prospects of release. The difference is in the approach to how they should be assessed and weighed. But this turns on the evidence and circumstances. There may be practical reasons in relation to the available information as to why no sensible or useful judgment can be reached, but that is a matter for the evidence that is available in an individual case. The judgment is a fact-specific matter dependent on the facts in each individual case, and not one to be squeezed into the into a priori categories of rare or exceptional.”
[26]Having regard to the general importance of this issue, by an order dated 19 July 2024 Swift J certified the following points of law of public importance:
“When considering whether extradition pursuant to a conviction warrant would be a disproportionate interference with article 8 rights, a) What weight can attach to the possibility that the requesting judicial authority might, in exercise of the power under articles 77, 78, 80 and 82 of the Polish Penal Code, permit the requested person’s release on licence (“the early release provisions”) and b) To what extent (if at all) should the court assess the likely merits of an application under the early release provisions, either that the requested person has made, or that he may make.”
Swift J refused permission to appeal to the appellant in Andrysiewicz on the basis that the Supreme Court should have the opportunity to decide for itself whether it wished to consider the issues. However, on 17 October 2024 the Supreme Court did grant permission to appeal. An expedited hearing was ordered which was heard as recently as 13 March 2025. Judgment is awaited.[27]A number of Polish extradition cases have been stayed pending the outcome of the Supreme Court’s anticipated judgment in Andrysiewicz, in particular Furman v Polish Judicial Authority [2024] EWHC 3062 (Admin) (Linden J); Marcisz v Poland [2024] EWHC 2441 (Admin) (Hill J) (although the stay in Marcisz was advanced on the basis of a Divisional Court hearing in Tujek v Poland AC-2024-LON-001555, as at that time the Supreme Court had not yet granted permission to appeal in Andrysiewicz); and Constable J in Szybowicz v Krakow Regional Court [2025] EWHC 152 (Admin).[28]In Marcisz (an application to stay the application for permission to appeal), the District Judge had acknowledged (applying Dobrowolski) the possibility of early release, but nevertheless concluded that the Art. 8 ECHR balance came down in favour of extradition. On appeal, Hill J considered the application for a stay and took the following approach to it:
“27. The parties agreed that in order to decide whether to grant a stay, it was appropriate to (1) assume that the approach in the case law most favourable to the Appellant is ultimately the one that will be adopted by either the Supreme Court or the Divisional Court; (2) assume the most favourable factual scenario for the Appellant, namely the earliest release date possible under Article 77; and then (3) ask whether, in light of those assumptions, the pending appeals are likely to be decisive or determinative of the application for permission. 28. As to (1), counsel for the Appellant contended that the approach most favourable to him is that taken by Fordham J in Dobrowolski at [14]-[15]. That requires the court to “have regard to the reality” of an early release application, “without ‘second-guessing’ a discretionary decision which would be for the Polish authorities”, by reference to the criteria in Article 77. 29. As to (2), for the purposes of the stay application the parties agreed that the most favourable factual scenario is that the Appellant might be released at the half-way point; and thus have 9½ months to serve if extradited (the ½ way point in the initial sentence of 2 years and 3 months being 1 year and 1½ months, and the Appellant already having served 4 months of that). 30. The central dispute between the parties was as to (3).”
(emphasis added)[29]In Furman (an application to stay a renewed application for permission to appeal), Linden J raised Hill J’s decision in Marcisz with the parties, prompting the appellant to apply for a stay of the appeal in that case pending the outcome of Andrysiewicz. The District Judge in that case had also applied Dobrowolski and concluded that the applicant had a good prospect of early release which was likely to be granted by the Polish court, but that she would not place any significant weight on it as his sentence still had four and a half months to run until the halfway point. On balance, she held that the Art. 8 ECHR factors came down in favour of his extradition.[30]Linden J subsequently granted the stay sought by the applicant, on the basis that the Dobrowolski approach was arguably applicable and it could potentially be decisive in the present case as “the applicant has served nearly two thirds of his sentence, and given the finding of the District Judge that he has good prospects of early release under Article 77. Indeed, the implication of the District Judge's statement that the position would have been different had he passed the halfway point may be that she would have been likely to reach a different conclusion on proportionality” (at [16]). He went on to conclude that:
“17. This is not a case in which, without further guidance from the Supreme Court, it would be appropriate to decide at the permission stage that, even assuming that the Dobrowolski approach is correct, the appeal is not reasonably arguable. The issue of whether this was a permissible approach and whether the likelihood of early release was a relevant factor are due to be considered by the Supreme Court shortly as I have said. Rather than grant permission it seems to me that it is appropriate to await the views of that court. 18. I note that, were it not for the early release or time served point, I would with very little hesitation have refused permission to appeal. Applying Molik and assuming no early release, there is still a significant part of the applicant's sentence to be served. The applicant is a fugitive. He has a poor criminal record and the factors on which he relies as militating against extradition, absent the time served point, do not begin to outweigh the public interest in his extradition. If, therefore, the approach of Swift J in Andrysiewic and Farbey J in Dablewski [2024] EWHC 957 (Admin) is upheld by the Supreme Court, Mr. Hepburne Scott and the applicant should think very carefully before persisting in this appeal.”
(emphasis added)[31]The Appellant in the present case, ably represented by Ms Ania Grudzinska, contended that this Court should similarly apply the approach adopted by Hill J at para. 27 of her judgment in Marcisz in approaching the question of stay. The Respondent, equally ably represented by Mr. David Ball, agreed with this.[32]However, Marcisz and the cases in that line described in paragraph 27 above were applications for permission to appeal, where the test is whether the appeal is reasonably arguable. In such a case, one can readily understand why it should be assumed in the applicant’s favour that the early release argument has significant weight in favour of the applicant’s discharge when considering the Celinski balance (i.e. Swift J’s option (c) in paragraph 21c above should be adopted) (“the most favourable assumption for the Appellant”).[33]That, however, is not the case here. The Appellant has already obtained permission from Garnham J, and I am now concerned with the hearing of the substantive appeal. Accordingly, I consider that this Court has three options:(1) Decide itself the point which is currently awaiting the decision of the Supreme Court (neither party suggested that I should do that, and I do not consider that to be a sensible course); or(2) Await the Supreme Court’s ruling so that it ensures that when it applies the Celinski balancing test it gives the early release issue the correct/appropriate weight in the balance; or(3) Dismiss the appeal on the basis that even if it adopts the most favourable assumption for the Appellant, the Celinski balancing exercise still comes down in favour of extradition; or rather (applying the relevant test for extradition appeals) that the District Judge can still not be shown to have been wrong in his decision. ANALYSIS 34. The proper approach to the article 8 balancing exercise

ANALYSIS

[34]In Re B (A Child)(Care Proceedings: Threshold Criteria) [2013] UKSC 33, Lord Neuberger stated as follows:
“An appellate judge may conclude that the trial judge's conclusion on proportionality was (i) the only possible view, (ii) a view which she considers was right, (iii) a view on which she has doubts, but on balance considers was right, (iv) a view which she cannot say was right or wrong, (v) a view on which she has doubts, but on balance considers was wrong, (vi) a view which she considers was wrong, or (vii) a view which is unsupportable. The appeal must be dismissed if the appellate judge's view is in category (i) to (iv) and allowed if it is in category (vi) or (vii).”
[35]Accordingly, in a case such as the present, as Farbey J stated in [22]-[23] of Dablewski: “22. The single question on an appeal is whether or not the DJ made the wrong decision. A decision is not wrong simply because the Administrative Court, which exercises a reviewing function on an appeal, would have taken a different view (Celinski, para 20). In answering the question whether the DJ was wrong to decide that extradition was or was not proportionate, the focus must be on the outcome; that is, on the decision itself (Celinski, para 24). Although the DJ’s reasons for the proportionality decision must be considered with care, errors and omissions do not, of themselves, necessarily show that the decision on proportionality itself was wrong (Celinski, para 24). 23. In assessing the proportionality of extradition under article 8, the constant and weighty public interest in extradition will outweigh the rights of the family unless the consequences of the interference with family life will be exceptionally severe (HH v Deputy Prosecutor of the Italian Republic, Genoa [2012] UKSC 25, [2013] 1 AC 338, para 8). When a child’s rights are involved, the child’s best interests are a primary consideration but they may nevertheless be outweighed by countervailing considerations (HH, para 15)”.[36]The issue of early release was not before the District Judge in the present case, it not having been raised by the Appellant. However, now that it has been raised the question is whether, looking at the matter afresh as of today, the balancing exercise carried out by the District Judge can be said to be wrong: see Chechev v Bulgaria [2021] EWHC 427 (Admin) at [79]-[80]. Similarly, the fact that the Appellant has now been subject to a monitored curfew for a further 11 months since the District Judge’s decision calls for evaluation afresh by this court in terms of the article 8 balancing exercise: see Bakai v Slovakia [2024] EWHC 1768 at [34].[37]The general principles in relation to the application of Article 8 in the context of extradition proceedings are set out in two decisions of the Supreme Court: Norris v Government of the USA (No.2) [2010] UKSC 9, [2010] 2 AC 487 and HH v Italy [2012] UKSC 25, [2013] 1 AC 338. Lady Hale summarised the effect of the decision in Norris at paragraph 8 of her judgment in HH as follows:
“We can, therefore, draw the following conclusions from Norris: (1) There may be a closer analogy between extradition and the domestic criminal process than between extradition and deportation or expulsion, but the court has still to examine carefully the way in which it will interfere with family life. (2) There is no test of exceptionality in either context. (3) The question is always whether the interference with the private and family lives of the extraditee and other members of his family is outweighed by the public interest in extradition. (4) There is a constant and weighty public interest in extradition: that people accused of crimes should be brought to trial; that people convicted of crimes should serve their sentences; that the United Kingdom should honour its treaty obligations to other countries; and that there should be no "safe havens" to which either can flee in the belief that they will not be sent back. (5) That public interest will always carry great weight, but the weight to be attached to it in the particular case does vary according to the nature and seriousness of the crime or crimes involved. (6) The delay since the crimes were committed may both diminish the weight to be attached to the public interest and increase the impact upon private and family life. (7) Hence it is likely that the public interest in extradition will outweigh the article 8 rights of the family unless the consequences of the interference with family life will be exceptionally severe.” (1) There may be a closer analogy between extradition and the domestic criminal process than between extradition and deportation or expulsion, but the court has still to examine carefully the way in which it will interfere with family life. (2) There is no test of exceptionality in either context. (3) The question is always whether the interference with the private and family lives of the extraditee and other members of his family is outweighed by the public interest in extradition. (4) There is a constant and weighty public interest in extradition: that people accused of crimes should be brought to trial; that people convicted of crimes should serve their sentences; that the United Kingdom should honour its treaty obligations to other countries; and that there should be no "safe havens" to which either can flee in the belief that they will not be sent back. (5) That public interest will always carry great weight, but the weight to be attached to it in the particular case does vary according to the nature and seriousness of the crime or crimes involved. (6) The delay since the crimes were committed may both diminish the weight to be attached to the public interest and increase the impact upon private and family life. (7) Hence it is likely that the public interest in extradition will outweigh the article 8 rights of the family unless the consequences of the interference with family life will be exceptionally severe.”
[38]Moreover, as Lady Hale stated at [33] in HH:
“The family rights of children are of a different order from those of adults, for several reasons. In the first place, as Neulinger and ZH (Tanzania) have explained, article 8 has to be interpreted in such a way that their best interests are a primary consideration, although not always the only primary consideration and not necessarily the paramount consideration. This gives them an importance which the family rights of other people (and in particular the extraditee) may not have. Secondly, children need a family life in a way that adults do not. They have to be fed, clothed, washed, supervised, taught and above all loved if they are to grow up to be the properly functioning members of society which we all need them to be. Their physical and educational needs may be met outside the family, although usually not as well as they are met within it, but their emotional needs can only be fully met within a functioning family. Depriving a child of her family life is altogether more serious than depriving an adult of his. Careful attention will therefore have to be paid to what will happen to the child if her sole or primary carer is extradited. Extradition is different from other forms of expulsion in that it is unlikely that the child will be able to accompany the extraditee.”
The facts as found by the District Judge[39]The District Judge expressly applied HH and he found the following facts at [41]:(1) The Appellant came to the UK in early 2022 and his family came after him in June 2023;(2) He is self-employed. He has a stepson aged 12; a daughter aged 10 and another daughter aged 2 ½.(3) He has been with his wife for 12 years.(4) His wife does not speak English; she has started working in a hotel part-time.(5) There is no family in the UK to help them apart from his wife’s mother.(6) His young family depend on him financially and emotionally.(7) The financial situation would be mitigated by the welfare system and there would be some limited help from his wife’s mother.(8) There will be some emotional and practical harm to the children in the event of surrender but the harm will be no more than is inevitable in all cases of separation. No evidence was adduced by the Appellant of more harm than is inevitable.(9) His partner will continue to provide a stable, secure and loving environment for the children. There is evidence that she can cope.[40]The District Judge accordingly found, in summary, that the factors in favour of discharge of the warrant were that the Appellant has a young family who depend on him financially and emotionally and he has worked and contributed while here.[41]As against that, the District Judge found that the following factors in favour of surrender at [41]:(1) The public interest in ensuring extradition arrangements are honoured;(2) The UK should not be perceived as a safe haven for those seeking to evade justice;(3) The offending is serious;(4) The Appellant is a fugitive and left Poland to evade justice;(5) There is no delay in the proceedings;(6) The Appellant and his wife probably have no right to settle in the UK, they are here merely to avoid justice as a family. The fresh evidence[42]On 29 November 2024, the Appellant’s application to rely upon fresh evidence was granted by Garnham J. In his witness statement dated 11 July 2024 in support of that application, the Appellant stated that he and his wife, Kinga, had separated in March 2024 and that she had been living in Poland since March 2024, with the three children living with the Appellant in England. Kinga then took his two year-old daughter back to Poland between April and 9 July 2024, at which point it is said that she brought their daughter back to the UK. Kinga then returned to Poland on 11 July 2024 (where she was working part time as a market trader) and he was left with all three children as sole carer. If he were to be extradited, all the children would have to move to Poland to be with Kinga.[43]Kinga gave similar evidence in a witness statement dated 8 July 2024. Kinga’s mother (who also lives in the UK) gave evidence that “I regularly help [the Appellant] with childcare”, but that if he were extradited she would not be able to have the children with her long-term or support them financially.[44]The Appellant also relied upon a report dated 10 July 2024 from a Social Worker (Gosia Demetriou). In interviews with the Social Worker, Kinga apparently explained that if the Appellant were allowed to remain in the UK then she would come back to the UK to join the family.[45]Following the grant of permission, and in the light of the Appellant’s evidence that his wife had relocated to Poland, the Respondent made its own inquiries about her whereabouts.[46]In the light of those enquiries, on 4 March 2025 the Respondent applied to adduce fresh evidence which appeared to undermine the evidence of the Appellant and Kinga that they were separated and that she was now living in Poland.[47]The Polish police made enquiries at the address where the Appellant’s wife stated that she had been living in Malbork, Poland. The neighbours there apparently said that they had no knowledge of her, that she had not returned to Poland and they understood that she and the Appellant were still in England. She was not known at any other address in Poland. There was also a statement from the National Crime Agency which explained there was evidence that Kinga was claiming child benefit for the children in the UK.[48]Mrs Justice Eady admitted this fresh evidence of the Respondent on 14 March 2025, noting that the Appellant did not oppose the Respondent’s application to adduce it and accepted that “this is no longer a sole carer case” (although issue was taken with the accuracy of the evidence relied on by the Respondent).[49]This led the Appellant to submit a further round of fresh evidence on 22 March 2025, consisting of a statement for each of himself, Kinga and Kinga’s mother. In paragraphs 4-6 and 11 of his further witness statement the Appellant states as follows:
“4. I agree with the information in the letter from the Polish Court that Kinga was already in the UK in February 2025. However, as I stated before, she resided in our council flat in Malbork at Pradzynskiego 5/4, 82-200 from the spring of 2024 until her return to the UK in January 2025. Zuzanna lived with her from April to July 2024. Kinga also took Zuzanna to Poland for short periods of time in the autumn of 2024, and after visiting us at Christmas she travelled to Poland with Zuzanna and Filip for a short time. I do not know why the neighbours at Pradzynskiego stated that they were not aware of Kinga’s residing in our flat on her own. 5. If I am extradited, Kinga will be available to care for the children. However, it will be very difficult for them to get by in my absence. 6. Kinga is currently not working and since she returned to the UK in January, I have added her to my Universal Credit claim. If she does not find a job, she will not have the means to maintain herself and the children on her own in the event of my extradition. (…) 11 My mother-in-law, Maria Jaworska, is no longer looking after Filip and Maja after they finish school. She has moved houses and now lives at 67 Brookview, Stanhope Road, Smethwick, B67 6HG which is around 30 mins by bus from her previous address. In addition, she is now approximately 30 minutes from us by car and nearly 2 hours by bus. We sometimes travel to see her but because of the distance she is unable to assist with childcare as she used to.”
[50]In her further witness statement dated 20 March 2025, Kinga stated that “In January 2025 I returned to the UK in order to reside with my family long-term.” She explained that “If Rafal is extradited I will be available to care for the children. However, I will struggle to manage financially on my own.”[51]Mr. Ball submitted, so far as the evidence is concerned, this case has now come full circle. The position is, he submits, as it was before the District Judge: this is not a sole carer case. The fact that the Appellant was (on his evidence) the sole carer of his children for a period between April 2024 and January 2025 is irrelevant.[52]However, Ms Grudzinska took issue with this. She submitted that the correct analysis is that the children were cared for by the Appellant whilst their mother was absent. She only returned to the UK in January 2025. The Appellant managed to work and care for the children whilst his wife was absent and provide a secure home for the children as their primary carer. The three children are settled in school. Were he now to be extradited this would be highly disruptive to the children. Their mother is not in work. She does not speak English. Her mother is now a two-hour bus ride away. The family will be worse off financially. She might have to relocate to Poland. This will all have a seriously disruptive impact on the children. I consider that there is some force in these submissions. Change of circumstances since the District Judge’s decision?[53]The Judge took into account the financial and emotional hardship which would be inflicted upon the Appellant’s wife and children should he be extradited. He noted that this hardship would be mitigated by the welfare system and, to a limited extent, help from the Appellant’s wife’s mother. But he held that that hardship was outweighed by the factors in favour of surrender, in particular the fact that the Appellant was a fugitive, that there is a public interest in honouring extradition arrangements, that the offending is serious, and that there was no delay in issuing the arrest warrant.[54]Ms Grudzinska submits that the case has changed in three important respects since the District Judge considered it, namely:(1) The prospect of the Appellant’s early release;(2) That the Appellant has been on an electronic curfew for some 18 months; and(3) The impact on the Appellant’s family life, and in particular his children, were he to be extradited has become more serious.

(i) The early release issue

[55]First, the District Judge did not take into account the early release issue. It was not raised by the Appellant who was unrepresented.[56]The question which then arises is whether the fact that the District Judge did not have regard to the Polish early release provisions might lead a court to a different conclusion to that of the District Judge (when taken into account with the other factors set out below), or should at least lead to these proceedings being stayed pending the handing down of the Supreme Court’s decision in Andrysiewicz.[57]The Appellant was sentenced to a term of 1 year and 10 months’ custody. He has served 6 months of that sentence whilst on remand in Poland. Accordingly, he still has a term of 1 year, 4 months and 20 days remaining to be served. However, he would be eligible to apply for early release at the halfway point of his 1 year and 10 months’ sentence. That would be at the point at which he had served 11 months. As Ms Grudzinska confirms, since he has already served 6 months by way of qualifying remand in Poland, and five days whilst on remand in these proceedings The Appellant was arrested on 9th September 2023 and released on conditional bail on 14th September 2023. , he would only be required to serve another five months before he would become eligible for early release.[58]I have no information as to whether the Polish Court would be likely to operate its early release provisions in the case of the Appellant. In the present case, the Appellant is a fugitive, and so presumably his conduct would count against his early release in that respect, although there are other features of his conduct which weigh in his favour, such as the fact that he has no previous or subsequent convictions and that for some 18 month he has dutifully undergone electronic monitoring with a curfew, whilst holding down a job and looking after his children. One can readily see that should the Supreme Court adopt the most favourable assumption for the Appellant in terms of the weight to give to the early release argument in the context of the Celinksi balancing exercise, then this could, potentially, tip the balance in favour of the discharge of the Appellant. (ii) The Appellant has been on an electronic curfew for some 18 months[59]That is particularly so when one also takes into account the fact that the Appellant has now been subject to an electronic curfew for some 18 months. Whilst it is the case that the Appellant is a fugitive and so very strong counter-balancing factors would be required to outweigh the public interest in honouring extradition arrangements, I consider that the court should here still take into account, in considering the Article 8 balancing of interests, the length of time that the Appellant has been on a tagged-curfew. The Appellant was on a tagged curfew between 14 September 2023 and 4 December 2023 for 8 hours a day, which was reduced to 6 hours a day on 4 December 2023. In the context of a sentence in respect of which the Appellant may only have 5 months left to serve (if released at the halfway point), on any view that is a deprivation of liberty to a significant degree which must weigh in the balance in favour of discharge. The District Judge failed to mention this feature of the case at all, perhaps because he was not informed about the early release provisions and so did not consider it to be relevant (particularly since the Appellant would have been on a tag for some 8 months at that stage). (iii) The impact on the Appellant’s family life, and in particular his children[60]In the light of the two aforementioned factors, coupled with the matters relied upon by Ms Grudzinska in paragraph 51 above, I consider that a court might very well find that the consequences of the interference with the Appellant’s family life of his being extradited to Poland to serve (potentially) only another 5 months of his sentence would be “exceptionally severe” so as to outweigh the public interest in extradition, and that the District Judge was wrong to find that the surrender of the Appellant is a proportionate interference of his and his family’s Article 8 rights.[61]However, the outcome of the Article 8 balancing exercise will depend, to a significant degree, upon the approach which the Supreme Court takes in Andrysiewicz (i.e. the appropriate weight to give to the early release argument) and I accordingly consider that these proceedings should be stayed to await the outcome of that decision.[62]Mr. Ball forcefully submitted that the public interest in the UK not being a safe haven for fugitives would not be well served if someone could avoid going to prison by absconding to the UK, being bailed subject to a curfew, and seeking to protract the extradition proceedings for as long as possible in support of an argument that with the passage of time, the balance in favour of surrender was now outweighed in favour of discharge. I readily understand that that is a concern against which the court needs to guard in the case of a fugitive when carrying out the balancing exercise. However, this is a concern which is best addressed in the light of the full reasoning of the Supreme Court’s decision in Andrysiewicz.[63]In all the circumstances I direct that this appeal (and the decision of the District Judge) is stayed pending the handing down of the Supreme Court’s judgment in Andrysiewicz, after which this appeal shall be re-listed for a further hearing in the light of that judgment.

Cited in 1 later judgment