Tu Pham Anh v District Court of Lublin, Republic of Poland

On an appeal in extradition proceedings, fresh evidence must satisfy both requirements identified in Szombathely City Court v Fenyvesi: it could not reasonably have been adduced earlier and would have been decisive. Section 13 of the Extradition Act 2003 concerns punishment, detention or restrictions imposed by state authorities for a specified discriminatory reason. Ill-treatment by fellow prisoners may engage Convention rights, but does not ordinarily engage section 13. Fugitivity turns on whether the person placed himself beyond the reach of legal proceedings, including whether he understood the relevant obligations. Passage of time remains relevant to the Article 8 balance even where the requesting state is not culpable for delay. The appeal was dismissed because none of the statutory conditions for allowing it was satisfied.

The appellant appealed against District Judge Zani’s order for his extradition to Poland to enforce the remainder of a three-year custodial sentence for offences concerning facilitation of illegal migration. He challenged the order on the grounds of extraneous considerations under section 13 of the Extradition Act 2003, fugitivity and proportionality under Article 8 ECHR.

He also sought to adduce a supplementary witness statement, an article concerning interpretation services, and evidence about a possible transfer of his sentence to the United Kingdom. The central issues were whether the fresh evidence was admissible and decisive, whether the section 13 bar applied, whether the appellant was properly regarded as a fugitive, and whether extradition was disproportionate.

1. Fresh evidence. The applications to admit the supplementary statement, the article on Directive 2010/64/EU and the sentence-transfer material were refused. Under Szombathely City Court v Fenyvesi [2009] 4 All ER 324, the evidence had to be unavailable, or unobtainable with reasonable diligence, at the extradition hearing and capable of being decisive. The first requirement applied to appeals involving ECHR issues, as reaffirmed in Hamasalih v Public Prosecutor’s Office, Bolzano Court of Law, Italy [2025] EWHC 593 (Admin). The evidence did not satisfy those requirements.
2. Section 13. The provision was concerned with conduct by authorities of the requesting state. Alleged abuse by other prisoners did not fall within it, although such conduct could be relevant under section 21 in the context of Convention rights. Linguistic disadvantage, without more, did not establish that punishment or detention was imposed by reason of race or nationality. The appellant’s late assertions also conflicted with his earlier evidence and attracted no weight.
3. Fugitivity. The relevant question, applying Wisniewski v Poland [2016] EWHC 386 (Admin), was whether the appellant had placed himself beyond the reach of legal proceedings. That required consideration of his knowledge and understanding of the suspended sentence, its conditions and the later applications to defer imprisonment. The District Judge was entitled to reject the appellant’s evidence and to find that the appellant became a fugitive when he left Poland in 2017. Any earlier error would have been immaterial because there had been no culpable delay and the alternative Article 8 conclusion remained sound.
4. Article 8. The seriousness of the offending, the appellant’s role and the absence of culpable delay were properly assessed. Nevertheless, elapsed time could affect family life and the interests of children, even without culpable delay, as recognised in HH v Italy [2012] UKSC 25. The District Judge considered those matters and was entitled to conclude that extradition was proportionate. The possible sentence transfer was too inchoate to carry significant weight.
5. Permission to appeal was granted, but none of the conditions in section 27(3) or (4) of the Extradition Act 2003 was satisfied. The appeal was dismissed.

• High Court (Administrative Court): permission to appeal granted, but the appeal dismissed under section 27 of the Extradition Act 2003.
• District Court: District Judge Zani ordered extradition to Poland on 6 September 2024.