Szalanski, R (on the application of) v Regional Court In Swidnica, Poland

Family hardship is relevant when assessing whether return to face criminal proceedings is proportionate, but it will generally carry little weight where the person came to the United Kingdom partly to avoid criminal process in the home country. Hardship to a spouse and child will not ordinarily justify refusing return unless it is sufficiently serious to make return disproportionate. A pending asylum claim based on prison conditions prevents extradition while it remains undetermined under section 39 of the 2003 Act, but the extradition appeal may nevertheless be dismissed.

The claimant appealed against a district judge’s order for his return to Poland. The order concerned charges of robbery committed in December 2007 and the balance of sentences imposed for other offences, including robbery, theft and drink driving.

The claimant had come to the United Kingdom in 2009, partly to avoid the criminal process in Poland. He relied on the effect of return on his wife and young child, and stated that he had made an asylum claim based on the harshness of prison conditions in Poland. The central issues were whether return would be disproportionate because of family hardship and whether the pending asylum claim affected the appeal.

1. Appeal dismissed. The order for return to Poland was upheld.
2. The court accepted that hardship to the claimant’s family had to be taken into account and weighed in the balance when considering proportionality. The relevant circumstances included that the claimant was the family’s only provider and that his wife and child would suffer if he returned.
3. Those considerations did not justify refusing return. The claimant had come to the United Kingdom partly to avoid the criminal process in Poland. In those circumstances, the hardship, although harsh and difficult for the family, was insufficiently serious to make return disproportionate.
4. The pending asylum claim did not provide a basis for allowing the appeal. Under section 39 of the 2003 Act, the claimant could not in fact be extradited while the asylum claim remained undetermined. The question of return would therefore await the Home Office’s decision on that claim.
5. The judge expressed the view that the asylum claim appeared to have very little prospect of success and ought almost certainly to be certified if refused, but stated that certification was a matter for the Home Office.

High Court (Administrative Court): The claimant appealed against a district judge’s order for his return to Poland. Mr Justice Collins dismissed the appeal, while recognising that actual return would await determination of the pending asylum claim.