Lakatus, R (on the application of) v Secretary of State for the Home Department & Anor

In extradition cases, exceptionality is not the test under article 8 of the ECHR. The decision-maker must assess proportionality by balancing the seriousness and legitimate aims of extradition against the interference with family life and the individual circumstances relied upon. Express use of the word proportionate is unnecessary if the decision demonstrates that balancing exercise.

The statutory concepts of injustice and oppression under section 12 of the Extradition Act 1989 are distinct from article 8, but overlapping factual matters may be considered without repetition. A decision is lawful if, read in context, it addresses the representations made and applies the appropriate test to each issue.

The claimant challenged two decisions by the Secretary of State ordering his extradition to Poland under section 12 of the Extradition Act 1989. The first decision addressed family circumstances, alleged risks in Poland and the position of the claimant’s son. Further representations relied on his stepdaughter’s serious illness, family separation, articles 3, 6 and 8 of the ECHR, delay and the possibility of an unfair trial.

The claimant argued that the Secretary of State had applied an impermissible exceptionality test under article 8 and had failed separately and adequately to consider whether extradition would be unjust or oppressive because of the passage of time and the family circumstances. The central issues were whether the decision-maker had applied proportionality and complied with section 12.

1. Application dismissed. The court found no basis to quash either decision or require reconsideration.
2. Under article 8, exceptionality is not the applicable test. The correct approach is proportionality. In an extradition case, the circumstances will ordinarily need to be striking and unusual before surrender is disproportionate. The approach identified in Jaso v Central Criminal Court No 2 Madrid [2007] EWHC 2983 (Admin), relying on Huang v Secretary of State for the Home Department [2007] UKHL 11, was accepted.
3. The Secretary of State had not applied exceptionality as the article 8 test. The decision letter dealt separately with oppression and article 8, considered the medical condition of the claimant’s stepdaughter, the claimant’s role in supporting her, the difficulties facing the mother and the seriousness of the alleged offences, and assessed whether those factors outweighed the case for surrender. That was a classic proportionality exercise, despite the absence of the express word proportionate.
4. The Secretary of State also gave proper and separate attention to oppression under section 12(2)(a) of the Extradition Act 1989. The court applied the distinction identified by Lord Diplock in Kakis v Government of the Republic of Cyprus [1978] 1 WLR 779, at 782: the passage-of-time argument concerned oppression, while the fair-trial argument was ordinarily an issue of injustice. The representations actually made were adequately addressed.
5. A decision-maker need not repeat the same factual matters in separate passages where the decision, read in context, shows that the relevant legal tests were separately considered and properly applied.

High Court (Administrative Court): The Divisional Court dismissed the judicial review claim and upheld the Secretary of State’s extradition decisions dated 2 March 2006 and 10 July 2007. The judgment also records the claimant’s committal by the Bow Street magistrate under section 9 of the Extradition Act 1989.