Andrejs Gurskis v Latvian Judicial Authority

On an appeal against extradition, a proportionality decision under article 8 is reviewed for whether it was wrong, without any requirement that it was plainly wrong. Fresh evidence is admissible only if it could not reasonably have been available below and would have required a different decision.

When post-Brexit immigration consequences bear on article 8, the court must assess realistic prospects of re-entry and the counterfactual risk of immigration removal if extradition is refused. Immigration consequences require comprehensive legal and evidential support. The strong public interest in extradition is not reduced merely because the requesting state imposed a sentence that would probably have been lower in England. Save in extreme cases, the extradition court does not review the requesting state’s sentencing principles.

The appellant challenged an order for his extradition to Latvia under a conviction European Arrest Warrant. He had received a suspended sentence for possessing and supplying heroin. The sentence was activated after he breached its conditions, and the District Judge found that he was a fugitive.

The appeal alleged that extradition would disproportionately interfere with the rights protected by article 8 of the European Convention on Human Rights. The appellant relied on fresh evidence concerning his partner and children, the possible immigration consequences of extradition following Brexit, the age and seriousness of the offence, and the District Judge’s treatment of fugitivity.

The central questions were whether the District Judge’s proportionality assessment was wrong and whether the fresh evidence would have required him to order the appellant’s discharge.

1. Appeal dismissed. Under section 27 of the Extradition Act 2003, an appellate court reviews the District Judge’s proportionality decision and intervenes if it concludes that the decision was wrong. It need not find that the decision was plainly wrong. Fresh evidence must satisfy the Fenyvesi principles: it must not reasonably have been available below and must be decisive, in the sense that it would have resulted in the relevant question being decided differently.

2. The new evidence concerning the appellant’s partner and children was not decisive and was therefore inadmissible. It confirmed impacts that the District Judge had already recognised without materially altering their nature or severity. Although the expected support from the partner’s family had not materialised, that did not undermine the assessment that she was resourceful and could obtain other assistance.

3. The concept of “Brexit uncertainty” identified in Antochi had been overtaken by settled immigration arrangements. A court assessing interference with article 8 must consider both the realistic outcome of an application to re-enter the United Kingdom after extradition and the counterfactual risk that the foreign conviction could lead to immigration removal even if extradition were refused. The assessment must use realistic immigration routes, including any applicable exceptions based on unjustifiably harsh consequences, rather than theoretical possibilities.

4. Immigration Rule 34K did not cause an application under Appendix EU to lapse automatically when an applicant left the common travel area. Article 18 of the EU-UK Withdrawal Agreement and regulation 4 of the Citizens’ Rights (Application Deadline and Temporary Protection) (EU Exit) Regulations 2020 preserved relevant residence rights pending a decision. Immigration-law submissions in extradition proceedings must be comprehensive, cogent and supported by relevant legal materials and, where necessary, evidence.

5. The District Judge did not underestimate the interference with article 8. There was a clear possibility that the appellant could face immigration removal because of his foreign conviction even without extradition. Any omission to consider that counterfactual favoured the appellant.

6. The family consequences did not outweigh the strong public interest in giving effect to extradition arrangements, particularly where a significant custodial sentence remained outstanding and the appellant was a fugitive. Save in an extreme case, an extradition judge may not reassess the sentencing principles of the requesting authority by comparing the likely English sentence. No such extreme circumstances existed.

• High Court (Administrative Court): The appeal against the extradition order was dismissed.
• Westminster Magistrates’ Court: District Judge John Zani ordered the appellant’s extradition to Latvia on 12 May 2021, having concluded that extradition would not disproportionately interfere with article 8 rights.