BZQ v Overijssel District Court, Zwolle, Kingdom of the Netherlands

On an extradition appeal under the Extradition Act 2003, the appellate court must decide whether the district judge’s proportionality decision was wrong, rather than simply substitute its own view. The court must respect factual findings and interfere only where the decision was legally or factually unsustainable, materially overlooked relevant matters, or was otherwise wrong. Under Article 8, extradition will ordinarily serve a strong public interest, but a dependent child’s best interests are a primary consideration. Exceptionally severe consequences for the child may outweigh that interest. Fresh evidence may justify allowing the appeal where, had it been available below, the district judge would have been required to reach a different conclusion.

BZQ appealed under section 26 of the Extradition Act 2003 against an order of the Westminster Magistrates’ Court extraditing her to the Netherlands to serve the balance of a sentence for facilitating unauthorised entry and residence. Her sole ground was that extradition would be incompatible with her and her daughter A’s rights under Article 8 of the European Convention on Human Rights.

Permission was granted to rely on further evidence, including psychological evidence concerning A’s self-harming and the likely effects of extradition. The central issues were whether the district judge had reached the wrong Article 8 conclusion and whether the fresh evidence would have required A’s discharge.

1. The appeal was allowed and BZQ was discharged under section 27 of the Extradition Act 2003. The appellate question was whether the district judge’s decision was wrong. The court was not entitled to interfere merely because it might have attached different weight to individual factors.

2. The approach in Love v United States of America [2018] EWHC 172 (Admin) and Polish Judicial Authority v Celinski [2015] EWHC 1274 (Admin) required attention to the outcome of the proportionality assessment. Findings of fact should ordinarily be respected, but an appeal may succeed where the overall evaluation was wrong.

3. The court applied the Article 8 principles in H(H) v Deputy Prosecutor of the Italian Republic, Genoa [2012] UKSC 25. The public interest in extradition is strong and depends on the seriousness of the offending. A child’s best interests are a primary consideration, although they may be outweighed by countervailing considerations.

4. The new evidence showed that the district judge had not had an accurate picture of the likely impact on A. The anticipated effect of extradition would be exceptionally severe. BZQ was effectively A’s sole carer, while B and BZQ’s sister could not reliably provide the necessary care given their own circumstances and A’s vulnerabilities.

5. The offence was serious but less serious than human trafficking, and its seriousness was mitigated by BZQ’s limited role, coercive relationship, lack of financial gain, delay, prior imprisonment and restrictions imposed on bail. Weighing all the factors, the court concluded that, had the fresh evidence been before the district judge, he would have been required to answer the Article 8 question differently.

1. High Court (Administrative Court) — The appeal against the Westminster Magistrates’ Court extradition order was allowed under section 27 of the Extradition Act 2003.

2. Westminster Magistrates’ Court — DJ Zani ordered extradition on 2 March 2023 after concluding that extradition was compatible with Article 8.