AC-2024-LON-002673 - [2025] EWHC 2932 (Admin)

Section 21 of the Extradition Act 2003 required the Judge to decide whether the Applicant’s extradition would be compatible with the Convention rights within the meaning of the Human Rights Act 1998. The only Convention right relied on was article 8. The role of article 8 in extradition cases was addressed in detail in Norris, HH v Italy and Celinski, and most recently by the Supreme Court in Andrysiewicz at [31]-[43] and [81].

In a conviction case, such as the present, the purpose of extradition arrangements is to restore the Appellant into the control of the requesting State, whose laws the Appellant has been found to have broken, in order to serve a sentence lawfully imposed in that State (Andrysiewicz, Lord Lloyd-Jones and Lord Stephens JJSC, [31]). The requirement that any interference with the right to respect for private and family life under article 8 should be in accordance with law is met where extradition is pursuant to the 2003 Act. The critical issue is whether the interference is “necessary in a democratic society … for the prevention of disorder or crime” (article 8(2)). Resolving this issue involves a test of proportionality: “the interference must fulfil a pressing social need and it must also be proportionate to the legitimate aim relied upon to justify the interference”: Andrysiewicz, [33], Norris, Lord Phillips of Worth Matravers PSC, [9]. In the extradition context, the courts have equated the pressing social need and the legitimate aim: HH v Italy, Lord Wilson JSC, [152].

Detention while serving a sentence following conviction, whether following extradition or a domestic court process, “will necessarily interfere drastically with family and private life” (Andrysiewicz, [33(2)]). There is no “absolute rule” that any interference with article 8 rights as a consequence of extradition will be proportionate (Andrysiewicz, [33(1)]. The court has to “examine carefully the way in which it will interfere with family life” (HH v Italy, Baroness Hale of Richmond JSC, [8(1)].

There is a constant and weighty public interest in extradition that people accused of crimes should be brought to trial; that those convicted of crimes should serve their sentences; that the United Kingdom should honour its treaty obligations; and that the UK should not be a safe haven for fugitives from justice, to which those accused or convicted of crimes abroad can flee in the belief that they will not be sent back (HH v Italy, [8]; Andrysiewicz, [37]). The public interest in extradition “weighs very heavily indeed” (Andrysiewicz, [33(1)]). It always carries “great” and “special weight”, but the weight to be attached to in the particular case varies according to the nature and seriousness of the crime, and may be diminished by delay (Andrysiewicz, [33(1)], [37], HH v Italy, [8(4)-(6)]).

For the public interest in favour of extradition to be outweighed “the interference with human rights will have to be extremely serious” (Andrysiewicz, [33(3)]). As Lord Phillips observed in Norris at [56]and the Supreme Court reiterated in Andrysiewicz:

“The reality is that only if some quite exceptionally compelling feature, or combination of features, is present that interference with family life consequent upon extradition will be other than proportionate to the objective that extradition serves”.

In Andrysiewicz, Lord Lloyd-Jones and Lord Stephens noted at [43]:

“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 ECHR ‘defence’ will have any prospect of success.”

The likelihood that, save in rare cases, extradition will be a proportionate interference with article 8 rights is a prediction, not the criterion by which the issue should be resolved. There is no test of exceptionality: (HH v Italy, [8], [32], [124], [161]; Andrysiewicz, [37]). The question is whether the interference with the private and family lives of the requested person and other members of his family, which would occur if he is extradited, is outweighed by the public interest in extradition.

In Andrysiewicz, Lord Lloyd-Jones and Lord Stephens observed at [33(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’ ([Norris,] para 62).” (Emphasis added.)

The effect of extradition on innocent members of the requested person’s family may well be a particularly cogent consideration (Andrysiewicz, [33(7)]).

In ZH (Tanzania) v Secretary of State for the Home Department [2011] UKSC 4, [2011] 2 AC 166 (an immigration case concerning removal) and HH v Italy, the Supreme Court considered the approach to be adopted when assessing the proportionality of an interference with the article 8 right to family life of a child. In Zoumbas v Secretary of State for the Home Department [2013] UKSC 74, [2013] 1 WLR 3690 (another removal case), Lord Hodge JSC speaking for the Supreme Court summarised the principles to be derived from these cases at [10]:

“(1)

The best interests of a child are an integral part of the proportionality assessment under article 8 of the Convention; (2) in making that assessment, the best interests of a child must be a primary consideration, although not always the only primary consideration; and the child’s best interests do not of themselves have the status of the paramount consideration; (3) although the best interests of a child can be outweighed by the cumulative effect of other considerations, no other consideration can be treated as inherently more significant; (4) while different judges might approach the question of the best interests of a child in different ways, it is important to ask oneself the right questions in an orderly manner in order to avoid the risk that the best interests of a child might be undervalued when other important considerations were in play; (5) it is important to have a clear idea of a child’s circumstances and of what is in a child’s best interests before one asks whether those interest are outweighed by the force of other considerations; (6) to that end there is no substitute for a careful examination of all relevant factors when the interests of a child are involved in an article 8 assessment; and (7) a child must not be blamed for matters for which he or she is not responsible, such as the conduct of a parent.”

The Appellant sought to rely on Baroness Hale’s assertion in ZH (Tanzania) that the best interests of the child “must be considered first” ([33]), and its endorsement by Lord Kerr of Tonaghmore JSC in HH v Italy ([144]). However, it is clear that the majority of the seven Justices in HH v Italy took the view that the order in which a judge chooses to express him or herself is a matter for the judge, so long as the issue has, in substance, been addressed: [98] and [100] (Lord Mance JSC), [125]-[126] (Lord Judge CJ), [153] (Lord Wilson)). In HH v Italy,Baroness Hale acknowledged this disagreement about “the order in which the judge should approach the task” and said, “I agree entirely that different judges may approach it in different ways. However, it is important always to ask oneself the right questions and in an orderly manner” ([33]). That is reflected in the guidance given in Zoumbas ([10(4)]). There is no requirement that the child’s interests must be considered earlier in the analysis than any other matter.

The Appellant contends that, while the child’s best interests are not “the paramount consideration”, adopting the words of Lord Kerr in HH v Italy, the “primacy” of the child’s best interests means that “no factor must be given greater weight than the interests of the child” ([145]). However, Lord Kerr took a stronger position than the other Justices and his analysis is not the law (cf HH v Italy, [11] (Baroness Hale), [98] (Lord Mance), [130] (Lord Judge), [155] (Lord Wilson)). The requirement that “no other consideration can be treated as inherently more significant” has the effect that court cannot treat the public interest in extradition as automatically outweighing the child’s interests. A careful, fact-specific analysis is required. But it does not follow that, on examination of the individual case, no other factor can earn greater weight than that accorded to the child’s best interests. As the Supreme Court forcefully emphasised in Andrysiewicz, the strength of the public interest in extradition is such that it will rarely be outweighed by the article 8 rights of the requested person or members of his family.