AC-2023-LON-001921 - [2025] EWHC 1416 (Admin)

Mr Swain for the Respondent recognises that the Supreme Court in Andrysiewicz did not decide any question relating to Qualifying Curfew. He accepts that French Qualifying Curfew involves a question of evaluative judgment which triggers a duty (see §§35-36 above). It does not involve a discretion or multiple discretions (cf. SC at §§52-53). He accepts that a question of evaluative judgment – which would arise for the French authorities – could arise as a question to be addressed by the EJA. An example, which was canvassed at the reconvened hearing, would be this. Suppose that – instead of being remanded in custody at HMP Wandsworth – a requested person were on a 16-hour EMC. There is an evaluative test applicable to whether that would constitute a deprivation of liberty (see §20 above). It belongs to the French authorities under the Article 26/624 mechanism (see §19 above). But the EJA could answer that evaluative question, so as to apply the Molik/Newman bright line (§§25-26 above): cf. AP v SSHD [2010] UKSC 24 [2011] 2 AC 1. Mr Swain accepted that the EJA would be obliged to answer that evaluative question. He emphasises that it is a question under the Trade and Cooperation Agreement (§19 above), rather than a provision under domestic French law (§28 above). Next, Mr Swain accepts that French Qualifying Curfew does not involve any licence period or probation period, unlike early release. That means the EJA – if it came to an informed view on evidence – would not be preventing any evaluative decision by the requesting state authorities whose consequence would be a period on licence or probation there. All of this is accepted.

Nevertheless, says Mr Swain, there is a sound analogy between Polish Early Release in Andrysiewicz and French Qualifying Curfew in A, Doga and the present case. They each involve a provision of foreign national law. They each involve evaluative judgment. They each risk contradiction, speculation and usurpation. So, this Court should now depart from the A and Doga line of cases on French Qualifying Curfew, just as Swift J did with the Chmura line of cases on Polish Early Release. In doing so, the outcome of the present case should be reversed and the appeal dismissed. That is what I am being requested to decide and that is the outcome at which I am invited to arrive. However, I am unable to accede to that request. There are two independent reasons.