STELIAN ZAHARIA v ROMANIAN JUDICIAL AUTHORITY

On a renewed application for permission to appeal an extradition decision, the court must consider whether the proposed Article 8 challenge is reasonably arguable and has a realistic prospect of success. The appellate court should stand back from the first-instance evaluation and ask whether the overall proportionality assessment ought to have been decided differently. Relevant circumstances include the seriousness reflected in the sentence, the claimant’s conduct and circumstances, family life, and the public interest in extradition. A balance-sheet exercise is not defective merely because the claimant identifies factors capable of weighing against extradition. Permission should be refused where the public interest decisively outweighs the competing Article 8 interests.

The appellant sought permission to appeal against an extradition order made by District Judge Branston on 4 January 2022. The extradition warrant related to a two-year custodial sentence imposed in Romania after conviction in the appellant’s absence for driving without a licence.

Permission had been refused on the papers by Hill J on the Article 8 ground, while an Article 3 prison-conditions ground remained stayed pending judgment in Marinescu v Romania. The renewed application argued that the first-instance proportionality assessment had inadequately reflected the relatively minor nature of the index offence, the appellant’s non-fugitive status, his life and work in the United Kingdom, and his relationship with his partner. The central issue was whether the Article 8 appeal was reasonably arguable and had a realistic prospect of success.

1. Permission refused. The court agreed with Hill J that there was no realistic prospect of success on the Article 8 ground.
2. For permission purposes, the question was whether an appeal could reasonably argue that the Article 8 proportionality assessment ought to have been decided differently because the overall evaluation improperly weighed the relevant factors. The court adopted the approach described in Love v United States [2018] EWHC 172 (Admin) at §26.
3. The two-year custodial sentence was a factor which the extradition court was entitled to respect when assessing the seriousness of the offending. The conduct also occurred while the appellant was on probation following release from a sentence imposed after a rape conviction.
4. The appellant’s absence of fugitivity did not remove all adverse conduct from the assessment. Although he was not found to have left Romania as a fugitive, he had been questioned after the incident, knew of the police investigation and knew of the probation period before coming to the United Kingdom.
5. The appellant’s work, relationship and proposed family arrangements were relevant, but had been carefully considered by the extradition judge. The family-life consequences were limited by the parties’ separate living arrangements, the partner’s financial independence and the absence of children or dependants in the United Kingdom. The appellant’s failure to disclose previous Romanian convictions in his settled-status application was also relevant.
6. Standing back, the public interest in extradition decisively outweighed the factors relied upon under Article 8. The contrary conclusion was not reasonably arguable.

1. High Court (Administrative Court): the renewed application for permission to appeal was refused in [2022] EWHC 1760 (Admin).
2. District Judge Branston: extradition was ordered on 4 January 2022.
3. Hill J: permission to appeal was refused on the papers on the Article 8 ground; the Article 3 ground was stayed pending judgment in Marinescu v Romania.