AC-2024-LON-002640 - [2025] EWHC 2702 (Admin)

I subdivide my analysis into ten prime areas.

First, I observe that the Judge concluded at para 51 that:

“It is a much more powerful inference that the Requested Person has failed to apply for leave to remain to regularise his immigration status in the UK because he has been hiding from the authorities in order to avoid being found and extradited to serve the sentence of imprisonment to which this AW relates.”

It is now common ground that the appellant did make an application for settled status. The Home Office confirms receipt of the appellant’s application under the EU Settlement Scheme on 13 November 2020. His application was rejected on 24 March 2023. It seems to me that this is such a fundamental factual departure from the matrix the Judge assessed article 8 on that this court on appeal should perform the balancing exercise again. As such, I am not reviewing the article 8 decision of the Judge, but assessing whether an extradition order on the facts as they are now before the court is disproportionate and incompatible with the appellant’s article 8 rights.

The appellant also criticises the Judge for an allegedly errant approach to the appellant’s precarious immigration status. She concluded that it “almost nullified” his article 8 argument. This is said to be wrong in light of Chamberlain J’s decision in ZA v Romania, [2025] EWHC 595 (Admin) (“ZA”) on the significance of irregular immigration status for the article 8 balancing exercise. As indicated, I need not examine the Judge’s approach on this question as I must remake the article 8 decision. However, I am assisted by Chamberlain J’s decision in ZA at para 46, where he states:

“46.

I have considered carefully whether this conclusion is affected by the appellant’s precarious immigration status. In my judgment, it is not. Although the appellant’s deportation appeal was unsuccessful, I understand that he has made further representations that his deportation should not be carried out. Those representations have not yet been considered. They fall to be considered under a different statutory regime, under which different considerations may be relevant. The deportation order may or may not be maintained. If it is, the appellant may have to leave the UK or face compulsory removal. That, however, is not the same as extradition to Romania in custody. This appeal falls to be considered independently.”

However, I do not understand ZA to be authority for the proposition that lack of settlement status and consequent implications, such as for prohibition against working, to be irrelevant to the balancing exercise. As said in ZA, extradition must be considered “independently”.

Second, I repeat as the point of embarkation the words of the Divisional Court in Celinski about the undesirability of article 8 factual comparisons.

Third, the appellant accepted at the appeal that he is a “technically” a fugitive. The respondent submits that either the appellant is a fugitive or he is not; he has admitted that he is. The fact of his fugitivity immediately engages the strong public interest considerations outlined in HH and Celinski and elsewhere. The strength of the public interest depends, however, on the precise facts of the case, which I consider.

Fourth, the proper approach is contained, as said in Celinski, in using the yardsticks in Norris and HH. The sole question is clear and is, as previously indicated, succinctly set out by Lady Hale in HH at para 8(3), which bears repetition here, along with further guidance at para 8(7):

“Paragraph 8:

(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.

(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.”

This last observation has recently been echoed by the Supreme Court in Andrysiewicz. The court said at para 43:

“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 on article 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 an article 8 ECHR “defence” will have any prospect of success.”

Fifth, in his reply to the respondent’s oral submissions, the appellant sought to raise the question of whether the sentence imposed in Romania for the tree-felling is “grossly disproportionate”. This raises a point of principle. Once more, Celinski provides guidance on the proper approach:

“48 (iv) The fact that the sentence had been imposed after conviction by a court of competent jurisdiction following a trial attended by witnesses. The judge did not have the information (whether personal or relating to the offence) which had led the court in Slovakia to impose the substantial custodial sentence. The courts of England and Wales, in the absence of very cogent evidence, must assume that the sentence reflected the gravity of the offending in all the circumstances as legitimately seen through the eyes of a court which did have that knowledge. Where a sentence has been imposed following conviction in the requesting state that is the approach which the courts of England and Wales should adopt. The judge should not have considered in this context how the courts of England and Wales would have sentenced for these offences, even where there was a high degree of variance between the two approaches. The decision of the Slovakian court is entitled on principles of mutual confidence to proper respect. That, of course, does not mean that the duration of the sentence during which the impact on family and private life will be felt is irrelevant to the assessment of proportionality.”

Similar sentiments were stated by Lord Judge in HH at para 132:

“ … 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.”

The appellant submits, notwithstanding these authoritative pronouncements, that the proportionality analysis is “very seriously affected by the nature of the offending.” I fully accept, as was noted in ZA at para 44, that “the gravity of offending may be taken into account” and this reflects the precept enunciated by Lady Hale in HH at para 8(5) that the public interest varies “according to the nature and seriousness of the crime”.

As the Judge noted, in the United Kingdom it is highly unlikely that a custodial sentence would have been imposed. Further, the case would not have proceeded to trial if this were an accusation warrant, given the nature of the offences. These were offences of felling trees. However, to my mind, it is significant that the sentence imposed of 8 months’ custody is twice the minimum four-month floor for a conviction warrant. The unauthorised felling of trees can amount to a criminal offence in both jurisdictions. However, there is divergence in the gravity with which the crime is viewed. That said, I judge that we must take seriously the right of Romania, an ECHR signatory state and EU member, to set sentencing levels in accordance with its national priorities, just as this country does. I have heard no evidence to suggest that the sentence imposed in Romania was manifestly excessive or disproportionate in Romanian terms. Despite the different approach that would be taken in the country, it is not the place of this court to resentence the appellant or second-guess the decision of a Romanian court of competent jurisdiction. As the Divisional Court said in Celinski at para 10, “the decisions of the judicial authority of a Member State making a request should be accorded a proper degree of mutual confidence and respect.” I do so in the spirit of comity. I cannot think that it is right for this court to find that the sentence in Romanian terms is grossly disproportionate, nor that it should not be afforded the necessary respect because the sentence would be different in this jurisdiction. However, I do take the nature of the offending into account in the overall balancing exercise.

Sixth, the respondent submits that the appellant’s openness in the United Kingdom is undermined by his arrest by the Home Office on the grounds of suspected absconding from his immigration bail. This appears to me to carry no real weight against the appellant: he was rebailed.

Seventh, the question of the impact on the appellant’s family life is of central importance to his case. It requires careful examination. The position since Brexit is that he has had no right to work legally in this country. His immigration status is precarious and his application for settled status has been rejected. While his partner Ms Chitu is presently here and his children were born in the United Kingdom, his partner is a Romanian national. Ms Chitu’s filed evidence is of significance. She came to this country from Romania in 2018, the year after the appellant, and, as the appellant states, he met her in the street by chance in 2019. She has a brother in Romania. She regards herself as Romanian (para 5: “we are both Romanian”). It appears that aside from the appellant, she has no other substantial ties to the United Kingdom (para 11). While in her first witness statement (undated) Ms Chitu stated that her mother had left the United Kingdom for Italy, in her second statement (15 January 2025), she states that her mother is back in this country, although she and her mother are “not on good terms at all”. This ill-will was not mentioned in the first statement and not explained in the second. Further, the appellant retains strong and relevant ties in Romania such that in the period before the trial below, Ms Chitu lived in Romania with cousins of the appellant from 27 November 2023. This was with the children, and she lived with the appellant’s family in Romania for approximately six months. The Judge’s observations about this justify being set out in detail (para 59):

“Moreover, I do not accept that credibility of the evidence – given by both him and his partner – that they could not both return to Romania in the event of his extradition. Indeed the Requested Person’s partner had only just returned from a six month period of living in Romania at the time of the extradition hearing. She had been living, with her two young children, with members of the Requested Person’s family. She provided no credible evidence to explain why her experience in Romania in recent months was so difficult and I did not believe her evidence on this point. The overwhelming inference from the nature of her evidence and the manner in which she appeared when giving her evidence in the witness box is that, as was put to her in cross-examination, she had in fact only returned from Romania to join the Requested Person to support him during these extradition proceedings. Her children are not yet of school age and would clearly be able to speak the language and integrate into Romanian society by the time that they were required to attend school. Moreover, in light of her settled status there would appear to be nothing preventing her from returning to the UK should she wish to do so for the sake of her children – following the conclusion of the Requested Person’s sentence. There has been no evidence has been adduced to indicate that the Requested Person would not be eligible for entry clearance in the event that he were to make an application to join his family in the UK, meaning that there is nothing to indicate in this case that he would be prevented from returning and joining his family in the UK. Although Ms Chitu stated that she did not want to return to Romania, she provided no specific details or evidence as to why this was (referring generically to it being “difficult” and “expensive” in Romania) or indeed why she could not return. Ultimately, and as already stated above, I found this part of her evidence to be unbelievable and believe instead that this part of her evidence was specifically designed to bolster the Requested Person’s extradition case.”

There is no reason to go behind this finding of fact. Indeed, no such argument has been made. The partner has settled status in the United Kingdom and no reason is provided to suggest that once he has served his sentence in Romania he cannot return to the United Kingdom to rejoin her and the children. Alternatively, it does not appear impossible in light of the Judge’s findings for her to return to Romania with the children for the duration of the sentence. He plainly has a supportive family in Romania and they have recently accommodated her and the children for an extended period.

Eighth, the Supreme Court in Andrysiewicz made clear that it will be rare for article 8 challenges to succeed, particularly where, as here, the appellant is a fugitive. His life in the United Kingdom has been built in full knowledge of his fugitivity, “on the sands of it” as the respondent puts it. That diminishes the weight of article 8 arguments while not eliminating them.

Nineth, I have in mind the observations of Lord Phillips in Norris at para 56 that

“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.”

I do not consider that the impact of extradition on family life in this case materially differs from the normal consequences of extradition. However, as noted in Norris (paras 50-65), the article 8 rights of the family must be considered as a whole, including how innocent family members may be affected. All enforced separations and relocations involve a degree of hardship, familial distress and disruption (see Debiec v Poland [2017] EWHC 2653 (Admin) at para 35). I note the example given by Lord Phillips in Norris at para 65 of the degree of interference where article 8 rights may outweigh the public interest in extraditing the requested person:

“If extradition for an offence of no great gravity were sought in relation to someone who had sole responsibility for an incapacitated family member, this combination of circumstances might well lead a judge to discharge the extraditee under section 87 of the 2003 Act”

The appellant is not the sole carer, and until recently his partner had been the primary carer. As the Judge noted (para 13), “the Requested Person accepted that he does not have any lawful right to reside, or work, in the UK at the present time.”

Tenth, as to delay, the appellant’s fugitivity has caused the delay here. I do not understand that there is a submission of dilatoriness on the part of the Romanian authorities. The time delay between the offending and the impugned return order is significantly less than, for example, in Celinski. It is true that the offending behaviour is alleged to have occurred in 2014 when the appellant was aged 20. He is now in his early thirties and has no other criminal convictions in this country or Romania. However, these factors can properly be considered by the Romanian judicial authorities if the question of discretionary early release arises. I place those in the balancing exercise in his favour, but there is limited weight to delay given that he left Romania in 2017 and refused to inform the authorities of his change of address. He bears strong responsibility for the delay in this case.

Further, it seems to me wrong to prescribe to Romania how one of its convicted offenders should be sentenced or released. I note in passing that in its prison assurance dated 15 January 2024, Romania has “guaranteed” that he would be imprisoned in “decent conditions” and “likely in an open prison regime at first”.