Kallmi v Republic of Albania

On an extradition appeal, the court may admit a fresh Article 8 point not raised below where the circumstances justify consideration of the United Kingdom’s Convention duties. The court must balance the person’s private and family life against the United Kingdom’s obligations to other states under extradition arrangements. Extradition will be proportionate where the compassionate circumstances relied upon fall substantially short of establishing an Article 8 right to remain.

The claimant appealed from the decision of District Judge Tubbs at the City of Westminster Magistrates’ Court on 4 March 2008. The judge had upheld Albania’s extradition request and referred the matter to the Secretary of State. The claimant initially argued that, following a conviction in his absence in Albania, he could not be assured of a retrial. In this court that argument was abandoned in light of subsequent decisions concerning Albanian law.

The claimant then advanced, without notice, an Article 8 challenge based on his marriage, children, and his wife’s ill health. The central issues were whether the fresh point should be entertained and whether extradition would be disproportionate.

1. Fresh point. Although fresh points on appeal are admitted only in limited circumstances, the court exercised its discretion under section 104(4) of the Extradition Act 2003 to entertain the Article 8 application. The point was admitted because the court had to ensure that the United Kingdom did not act in breach of its Convention duties.
2. Article 8 balance. The relevant assessment required a balance between the claimant’s private and family life in the United Kingdom and the United Kingdom’s obligations to states with which it had concluded extradition treaties. The court also took account of the family’s financial difficulty in visiting Albania.
3. Proportionality. The evidence established that the claimant’s wife had fragile mental health and that the family faced hardship. Those compassionate circumstances nevertheless fell far short of establishing an Article 8 entitlement to remain in the United Kingdom. The claimant’s existing deportation order and the sentencing judge’s recommendation for deportation were also relevant to the context.
4. The extradition was proportionate and would not place the United Kingdom in breach of Article 8. The appeal was dismissed.

• High Court (Administrative Court): The court dismissed the appeal from the decision of District Judge Tubbs at the City of Westminster Magistrates’ Court dated 4 March 2008.