Hans Kacerri v Government of Albania

In an extradition appeal based on fresh evidence, the court must determine Article 8 proportionality de novo on the material as it stands at the appeal. There is no free-standing exceptionality test. The court must balance the substantial public interest in extradition against the interference with the private and family life of the extraditee and affected family members. The public interest carries weight which varies with the seriousness of the offending and other circumstances, including delay. Extradition will ordinarily be proportionate unless the consequences for family life are exceptionally severe. Where a child’s interests are engaged, the child’s best interests are a primary consideration. On the particular evidence, serious psychological harm to the extraditee’s wife, her pregnancy, and the likely effect on the unborn child made extradition disproportionate.

The appellant appealed, with permission, against a District Judge’s decision to send his case to the Secretary of State under the Extradition Act 2003, following which the Secretary of State ordered his extradition to Albania. He had been convicted in absentia in Albania of involvement in the supply of illegal drugs and sentenced to 12 months’ imprisonment. The appeal relied solely on Article 8 of the European Convention on Human Rights, under section 87 of the Act.

By the time of the appeal, the appellant’s wife had given further evidence concerning her serious mental health difficulties, including a history of trafficking and suicide attempts, and was heavily pregnant. The central issue was whether, on the updated evidence, extradition would be a disproportionate interference with the Article 8 rights of the appellant, his wife and their unborn child.

1. Appeal allowed. The decision sending the appellant’s case to the Secretary of State was quashed.
2. Because the appeal involved fresh evidence, the court’s task was not the ordinary appellate question whether the District Judge was wrong. The court had to make its own assessment de novo on the material as it stood at the appeal, applying section 104(3) of the Extradition Act 2003 and the authorities identified in the judgment.
3. Article 8 does not impose an exceptionality test. The court must balance the interference with the private and family lives of the extraditee and affected family members against the weighty public interest in extradition. That public interest varies with matters including the nature and seriousness of the offending and delay. It will ordinarily prevail unless the consequences for family life are exceptionally severe.
4. The court accepted the wife’s account of trafficking and the psychologist’s evidence that extradition would cause serious and potentially devastating psychological harm. The District Judge had materially underestimated that impact and had placed insufficient weight on the expert evidence. Family and financial support could not substitute for the appellant’s role as his wife’s principal source of support.
5. The wife’s pregnancy supplied an additional and independently significant consideration. The best interests of the unborn child were a primary consideration, and could be outweighed by countervailing factors but were not decisive. Given the wife’s serious mental health difficulties and likely sole parental responsibility, the child’s welfare would or might be significantly affected by extradition.
6. On the particular facts, the interference was of the necessary severity to make extradition disproportionate. The relevant decision was quashed.

High Court (Administrative Court): appeal, brought with permission against the District Judge’s decision of 5 December 2022, allowed; the decision was quashed.