Dagmara Milewska v Regional Court of Bialystok, Poland

In an extradition appeal engaging Article 8, the court must balance the strong public interest in extradition against the private and family-life consequences, giving particular weight to exceptionally severe consequences for innocent family members. The assessment should identify the relevant factors clearly and explain their cumulative weight. A refusal by the requesting authority, without reasons, to consider less coercive cooperation may significantly reduce the public interest in extradition, especially where the requested person is not a fugitive and prosecution can apparently proceed without surrender. An appellate court may intervene where the lower court materially mischaracterises the seriousness of the alleged offending or dilutes compelling expert evidence.

The appellant appealed against a District Judge’s order dated 21 February 2024 ordering her extradition to Poland to face allegations of participating in organised unlawful immigration and organising the crossing of approximately 195 migrants. She had not been informed of the prosecution before leaving Poland and had offered to cooperate with the investigation or return voluntarily.

The appeal challenged the order under Article 8 of the Convention and under the proportionality provisions of the Extradition Act 2003. Permission was granted on the Article 8 ground but refused on proportionality. Fresh evidence concerned the appellant’s housing position, conditions for remand prisoners in Poland and the Polish Government’s response. The central issue was whether the District Judge had correctly balanced the public interest in extradition against the exceptional effect surrender would have on the appellant’s dependent adult daughter.

1. Appeal allowed. The warrant was discharged. It was unnecessary to determine the renewed application for permission to appeal on the separate proportionality ground.
2. The Article 8 question required a judgment as to whether the interference with the private and family lives of the appellant and her daughter was outweighed by the public interest in extradition. That public interest carried great weight, but its weight varied with the nature and seriousness of the alleged offending. The effect on innocent family members could be particularly cogent: Re HH and PH –v- Deputy Prosecutor of the Italian Republic, Genoa: F-K (FC) –v- Judicial Authority [2012] UKSC 25.
3. The District Judge should set out the facts, identify the factors for and against extradition and give clear reasons for the conclusion reached. The appellate task was to determine whether the decision was wrong, rather than to conduct a fresh balancing exercise: Polish Judicial Authorities v Celinski [2016] 1 WLR 551; Love v USA [2018] 1 WLR 2889.
4. The District Judge had accepted the consultant psychiatrist’s evidence that extradition would cause the daughter an emotional crisis, acute psychosis, an urgent need for treatment and a risk of self-harm. He nevertheless diluted that evidence by relying on generic protective factors and by treating her as equivalent to an ordinary adult dependent. Her unusual emotional dependence on her mother required careful attention comparable to the interests engaged in HH.
5. The District Judge had also described the alleged conduct as human trafficking, although the warrant concerned organised unlawful immigration. That error assumed significance because seriousness was treated as decisive in a finely balanced exercise. The distinction was material: Botos v Italy [2018] EWHC 2809 (Admin).
6. The appellant’s non-fugitive status, good character and offer to cooperate were material. The Polish authority had refused that offer without reasons. In the absence of contrary information, the prosecution appeared capable of proceeding without extradition, substantially eroding the public interest in surrender: Komar v Poland [2015] EWHC 2547.
7. The exceptional impact on the daughter, together with the reduced public interest in extradition, meant that the factors against extradition outweighed the public interest. The District Judge ought to have ordered the appellant’s discharge.

• High Court (Administrative Court): the appeal against the District Judge’s extradition order succeeded; the warrant was discharged.
• Westminster Magistrates’ Court: extradition proceedings were opened after the appellant’s arrest on 26 July 2023.
• District Judge: on 21 February 2024, ordered extradition to Poland and rejected the appellant’s Article 8, proportionality and other challenges.