Denis Mitat Sinani v Polish Judicial Authority

In an extradition appeal, qualifying remand served in the United Kingdom and the diminishing custodial sentence remaining abroad may be relevant to the Article 8 ECHR proportionality assessment. Those matters may, alongside the other circumstances of the case, make an appeal reasonably arguable and may ultimately tip the balance.

Where a stay or other durable basis for remaining in the United Kingdom means that remand will continue to accrue, the court may assess the likely position at the later substantive hearing. It is not artificial to project forward to that hearing, particularly where another linked case is due to determine an issue affecting the appeal.

The appellant challenged an order for extradition to Poland made by District Judge Blake on 7 February 2020. Permission to appeal had previously been granted on inadequacy of judgment and section 20 of the Extradition Act 2003, but refused on Article 8 ECHR grounds.

The appellant renewed the Article 8 application and sought permission to amend the grounds to add a section 2/Article 6 ECHR issue arising from the linked cases of Wozniak and Chlabicz. By the hearing, continued qualifying remand in the United Kingdom had substantially reduced the custodial period remaining in Poland. The central issue was whether the Article 8 ground was reasonably arguable with a realistic prospect of success, and how the procedural sequence should take account of the continuing remand and the pending linked cases.

1. Applications and procedural directions. Permission was granted to amend the grounds of appeal to add the section 2/Article 6 ECHR ground relating to Wozniak and Chlabicz. Consideration of permission on that ground was stayed pending the Divisional Court’s judgment in those cases. The substantive appeal was directed to be listed after 1 July 2021, with liberty to apply reserved to the respondent.
2. Article 8 arguability. Qualifying remand served in the United Kingdom, together with the diminishing custodial period remaining to be served in the requesting state, is in principle relevant to the Article 8 proportionality balance. In an appropriate case those factors may tip the balance even where extradition would otherwise leave only a short period of imprisonment to be served. The question remains fact-sensitive and requires consideration alongside all other relevant circumstances.
3. Projection to the substantive hearing. It was appropriate to assess the likely remand and sentence position at the later substantive hearing. The appellant had a durable basis for remaining in the United Kingdom through the existing permission-to-appeal proceedings and the stay ordered in relation to the linked cases. Remand would therefore continue to accrue, making an earlier assessment artificial.
4. Relevant circumstances. The substantive court would need to consider the appellant’s personal and family circumstances, his relationship with a vulnerable partner, his established life and employment in the United Kingdom, the period remaining to be served, and the practical and legal consequences of Brexit for return and reunion. It would also be relevant to consider whether the appellant would have a durable basis to remain in the United Kingdom if he were not extradited.
5. The Article 8 ground was reasonably arguable with a realistic prospect of success. Permission to appeal on that ground was granted, and the substantive appeal was given a revised estimate of two hours.

• District Judge Blake: ordered the appellant’s extradition on 7 February 2020.
• High Court (Administrative Court), Sir Ross Cranston: granted permission to appeal on inadequacy of judgment and section 20 of the Extradition Act 2003 on 23 September 2020, but refused permission on Article 8.
• High Court (Administrative Court), Fordham J: granted renewed permission on Article 8, permitted amendment to add the section 2/Article 6 ground, stayed that ground pending the linked cases, and directed the substantive appeal to be listed after 1 July 2021.