AA (Poland) v Secretary of State for the Home Department

In a second-appeal permission application, the court may take account of a materially different approach by the Upper Tribunal and the exceptionally severe consequences of a possible error. The proposed appeal raised whether removal after unsuccessful extradition proceedings could expose a person to a real risk of serving the same sentence twice because time spent detained in the United Kingdom might not be credited abroad. It also raised whether the sending state must obtain assurances from the receiving state before removal. The court did not determine those merits. Permission was granted, and the respondent was directed to state whether double punishment would breach Article 3 and/or Article 4 of the Seventh Protocol.

The applicant, a Polish EEA national, challenged a deportation order made after convictions in the United Kingdom. He had also spent time in detention in the United Kingdom during unsuccessful extradition proceedings concerning convictions in Poland. He argued that, if deported rather than extradited, he might not receive credit for that detention and could therefore undergo double punishment.

The First-tier Tribunal dismissed his appeal in June 2014. The Upper Tribunal dismissed his further appeal in a decision promulgated in January 2015, although it approached the issue differently. The applicant sought permission for a second appeal, alleging errors concerning the real-risk test, procedural fairness and the evidence concerning credit for time served. The central issue was whether removal required assurances from Poland against double punishment.

Permission to appeal was granted. The court treated the application as a second appeal, but considered that the approach could be tempered because the Upper Tribunal had dealt with the case differently from the First-tier Tribunal and the consequences of an error could be extremely severe.

1. The applicant’s proposed appeal raised an arguable issue as to whether the relevant question was the existence of a real risk that Poland would fail to credit time served in the United Kingdom, rather than whether the Polish authorities were likely to give credit. It also raised whether the Upper Tribunal should have set aside the First-tier Tribunal’s determination and enabled the applicant to address the risk issue if it rejected the First-tier Tribunal’s approach.
2. The court identified the wider point of principle as the correct approach where unsuccessful extradition proceedings had resulted in time being served in the United Kingdom which would not automatically be credited in the receiving state. The issue had been refined by reliance on Tarakhel v Switzerland and the suggested duty of the sending state to seek assurances before removal.
3. The court did not determine whether double punishment would in fact breach Article 3 or Article 4 of the Seventh Protocol. It directed the respondent to indicate whether she accepted that it would constitute such a breach.

The judgment was therefore confined to permission and directions. It made no final determination of the applicant’s deportation appeal or of the substantive human-rights claim.

• Court of Appeal (Civil Division): Granted permission for a second appeal and directed the respondent to state whether double punishment would breach Article 3 and/or Article 4 of the Seventh Protocol.
• Upper Tribunal (Immigration and Asylum Chamber): Dismissed the applicant’s appeal in a decision promulgated in January 2015. It held that the applicant had not established that he was likely to receive no credit in Poland for imprisonment served in the United Kingdom.
• First-tier Tribunal: Dismissed the applicant’s appeal after a hearing in June 2014, relying substantially on the applicant’s responsibility for the prolonged extradition process and the possibility of renewed extradition.