Gbajobi v High Court Republic of Ireland (Rev 1)

In extradition proceedings, Article 8 requires a fact-sensitive balancing exercise between the public interest in extradition and the interference with private and family life. The interests of affected children must be carefully assessed, but they are not automatically decisive. Exceptionality is not a free-standing test. The relevant question is whether the consequences are exceptionally severe so as to outweigh the public interest in extradition. Passage of time may reduce the weight of that public interest and increase the impact on family life, independently of fugitivity. A judge may consider overlapping statutory bars and related legal principles, provided that doing so does not distort the Article 8 analysis. A renewed permission application fails where the proposed grounds and fresh evidence disclose no realistic prospect that the extradition decision would be found disproportionate.

The appellant was wanted for extradition to the Republic of Ireland under a mixed European Arrest Warrant. He had pleaded guilty to sexual assault and was wanted for sentence; the warrant also referred to a possible rape charge. The District Judge ordered extradition on 20 June 2019. Permission to appeal was refused by Saini J, and the matter came before the Administrative Court as a renewed application.

The appellant sought to amend the grounds to rely exclusively on Article 8, and sought to adduce fresh evidence from himself and his wife. The central issue was whether the Article 8 challenge was reasonably arguable, having regard to the impact of extradition on the appellant, his wife and their children.

1. Applications dismissed. The renewed application for permission to appeal, the application to rely on fresh grounds and the application to adduce fresh evidence were all dismissed.
2. Article 8 required the court to weigh the factors favouring extradition against those opposing it. The seriousness of the sexual offending, the principle of mutual respect and the public interest in ensuring that the requested person did not obtain a safe haven weighed strongly in favour of extradition. The children’s welfare was a primary consideration, but not the primary consideration.
3. There was no free-standing exceptionality test under Article 8. The relevant inquiry was whether the interference with private and family life produced exceptionally severe consequences capable of outweighing the public interest in extradition. The District Judge’s reference to an exceptional case was lawful when read in context.
4. Passage of time could diminish the weight of the public interest and increase the impact on private and family life. Those consequences operated independently of whether the requested person was a fugitive. Fugitivity remained relevant to the Article 8 assessment, and the District Judge was entitled to find that the appellant had placed himself beyond legal process.
5. A District Judge was entitled to consider overlapping statutory bars and related legal principles, even if they were not advanced as stand-alone grounds. That approach was permissible provided it did not distort the Article 8 analysis. No material distortion or omission occurred.
6. The medical evidence, housing evidence and evidence concerning the children did not create a realistic prospect of establishing that extradition would be incompatible with Article 8. The District Judge had made sustainable findings about the appellant’s role in childcare, the family’s circumstances and the likely impact of extradition.
7. Even taking the fresh evidence into account and adopting the most favourable approach to the appellant, the Article 8 argument was not reasonably arguable. The court therefore did not decide the separate procedural issues arising from the very late change of lawyers and applications.

• High Court (Administrative Court): renewed application for permission to appeal dismissed; applications to rely on fresh grounds and fresh evidence also dismissed.
• District Judge Fanning: ordered extradition on 20 June 2019 after an oral hearing on 13 June 2019.
• High Court: Saini J refused permission to appeal on 18 November 2019. Subsequent hearings were adjourned by Holman J and Johnson J.