Fabczak v Regional Court In Warszawa, Poland

Extradition engages the public interest in international cooperation, but proportionality under Article 8 must be assessed on the individual facts. There is no test of exceptionality. The welfare of an affected child is a primary, though not decisive, consideration. Reliable evidence is required about the practical arrangements available to the child and carer after extradition. Relevant factors may include the seriousness of the offence, the likely sentence, restrictions already imposed on the requested person, delay, and whether he is a fugitive from justice. Where those factors are outweighed by the practical and emotional effects on family life and the child, extradition may be disproportionate.

The appellant appealed against District Judge Zani’s decision of 11 August 2014 ordering his extradition to Poland to face trial for obtaining a bank loan by deception. The maintenance-related allegations were not extradition offences and had been discharged.

The appellant had lived in the United Kingdom for several years with his partner and their young child. He argued that extradition would disproportionately interfere with family life, particularly because his partner was not in employment and the child had lived all his life in England. Updated evidence addressed the limited and overcrowded accommodation and support available from relatives in Poland. The central issue was whether extradition remained proportionate in the light of the evidence before the appellate court.

1. Appeal allowed. Extradition would be a disproportionate interference with family life and with the welfare of the child.
2. The appellate court approached the challenge in accordance with Re B [2013] UKSC 33. The District Judge’s primary findings of fact were respected. Where the lower court had properly directed itself and there had been no material change, the appellate court would not substitute its own assessment unless satisfied that the decision was wrong. Here, however, the evidence had materially changed through the recent witness statement concerning the proposed arrangements in Poland.
3. The child’s welfare was a primary, though not decisive, consideration. Following the approach identified in HH [2013] 1 AC 338 and applied in A v Hungary [2013] EWHC 3132, reliable evidence was required to assess the practical consequences of removal. The evidence showed significant financial, accommodation and support difficulties if the partner and child remained in the United Kingdom, together with substantial emotional impact. Returning them to Poland presented serious overcrowding and employment difficulties, and neither the partner nor the child was familiar with the grandparents.
4. The public interest in cooperation with Poland remained important, but it did not eliminate the need for an individual assessment. The offence was not trivial but was not sufficiently serious, in the circumstances, to carry decisive weight. The appellant had repaid more than half the loan, had undergone a year of electronically monitored curfew, and was not a fugitive from justice in respect of the offence. Those matters materially increased the weight of his established family life and reduced the weight of extradition in the proportionality balance.

1. High Court (Administrative Court): The appeal from District Judge Zani’s decision of 11 August 2014 was allowed. The order for extradition was set aside.