District Court in Ostroleka v Dytlow
| Jurisdiction | England & Wales |
| Judge | Lord JUSTICE KEENE,MR JUSTICE RODERICK EVANS,LORD JUSTICE KEENE |
| Judgment Date | 28 April 2009 |
| Neutral Citation | [2009] EWHC 1009 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | CO/8773/2008 |
| Date | 28 April 2009 |
[2009] EWHC 1009 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Lord Justice Keene
Mr Justice Roderick Evans
CO/8773/2008
Mr James Lewis QC and Miss Louisa Collins (instructed by CPS, Special Crime Division) appeared on behalf of the Appellant
Miss Clare Montgomery QC, Miss Charlotte Powell and Mr Joel Smith (instructed by Sheratte Caleb & Co) appeared on behalf of the Respondents
Introduction
On the face of it, this appeal raises a number of issues under the Extradition Act 2003 (“the 2003 Act”), but of particular importance is a matter which does not appear to have received judicial attention previously, namely the relationship between the European Arrest Warrant system and the 1951 Convention relating to the Status of Refugees (“the Refugee Convention”). What is the appropriate procedure where a European Arrest Warrant is received and duly certified under section 2 of the 2003 Act in respect of a person who has been granted refugee status in this country because of a well-founded fear of persecution for a Convention reason in the territory where the Arrest Warrant was issued?
The facts
The respondents are two Polish nationals of Roma ethnicity aged 27 and 25. They, along with their siblings and their parents, came to the United Kingdom in late 1999 from Poland and claimed asylum on the basis of persecution in Poland by reason of their ethnicity. On 16 November 2002 the whole family, including the two respondents, were granted refugee status here, a status which persists today. They have indefinite leave to remain.
On 5 September 2006, European Arrest Warrants were issued by the appellant District Court in Poland in respect of the respondents. Both are accused of having committed the same low value robbery in Poland on 24 August 1999, when the first named respondent would have been 19 years old and the second 17 years old. In brief, it is alleged in the Warrants that they stopped a car, opened the door, stole a watch worth 200 zlotys, and hit and kicked the driver so as to retain the watch. He suffered a cut to the left eyebrow. The maximum punishment for the offence is ten years' deprivation of liberty. Domestic Arrest Warrants had been issued in Poland on 4 June 2001.
Poland is a Category 1 country pursuant to section 1 of the 2003 Act, with the result that Part 1 of that Act applies. The Serious Organised Crime Agency certified both European Arrest Warrants on 6 September 2007. The respondents were arrested in February 2008. After a number of adjournments, an extradition hearing took place in July 2008 at the City of Westminster Magistrates' Court, and on 10 September 2008, District Judge Nicholas Evans gave judgment ordering the discharge of the respondents. He did so on one ground only, namely that their extradition would breach Article 8 of the European Convention on Human Rights (“the ECHR”), because interference with those rights resulting from extradition would “in the very particular circumstances of this case” be disproportionate.
In the course of his judgment, the District Judge rejected a number of other objections raised to extradition, including their refugee status. In the course of the hearing, he had heard evidence about the risk of persecution currently to the respondents, were they to be extradited to Poland, and he concluded that they would no longer be at real risk. He had before him the judgment of an immigration adjudicator dated 1 September 2001 in the respondents' favour, and the Home Office letter dated 16 November 2002 formally granting the respondents refugee status, but he described these as “historic reasons for their having been granted refugee status”, and said that they were of “no real assistance now to a determination as to whether their life or freedom would be threatened on return to Poland because of their Roma ethnicity”.
It seems that no evidence on the current situation in Poland was called on behalf of the issuing authority. The judge did have before him some witness statements from the respondents and their mother, and he had a report from an expert on Poland, Dr Blitz, who concluded that there was still a real risk of persecution. The judge commented that he did not find Dr Blitz's evidence particularly convincing.
As to the Article 8 arguments, the District Judge accepted that there had to be “striking and unusual facts” before it could be concluded that the interference with the rights under that Article was disproportionate, given the weight to be attached to the need to honour extradition treaties: see the decision in Jaso v the Central Criminal Court No 2 Madrid [2007] EWHC 2983 Admin, per Dyson LJ at paragraph 57. But the judge found that there were such facts here, consisting of the racist attacks on the family in Poland because of their Roma ethnicity, the insufficiency of protection in Poland (apparently, one assumes, in the past), and the refugee status of the two brothers. He also referred to certain other factors in this context, such as the relatively young age of the brothers at the time of the alleged offence, the fact that it took place nine years earlier and the impact of extradition on their parents, and in the case of the first respondent, his partner and children.
The District Judge rejected other defence arguments about passage of time, breach of Articles 3, 6 and 14 of the ECHR, and extraneous considerations. But, as I have already said, he found that extradition would result in a disproportionate interference with the respondents' Article 8 rights, and for that reason alone he ordered their discharge.
These proceedings
The appellant authority has appealed against that order. The respondents, for their part, not only resist the appeal insofar as it relates to the Article 8 issue, but also have raised other grounds on which the appeal should be dismissed and the order for discharge upheld. Their right to raise such matters stems from section 29(2) of the 2003 Act, which enables this court to allow the appeal only if the conditions in sub-sections ( 3) or (4) of that section are satisfied. Only sub-section (3) is relevant for present purposes. It provides:
“(3) The conditions are that—
(a) the judge ought to have decided the relevant question differently;
(b) if he had decided the question in the way he ought to have done, he would not have been required to order the person's discharge.”
In other words, if there is some other obstacle to extradition established, this court may not allow the authority's appeal. I spell that out simply because there seems to be no provision in the rules of court or the Practice Direction made in respect of CPR 52 for a respondent's notice to be served; nor, so far as I can discern, has one been served in the present case. But the other grounds raised by the respondents appear clearly from their skeleton argument. That is a perfectly appropriate method of dealing with such matters. Amongst the points which they take are the point that the District Judge erred in the way in which he judge dealt with the refugee status of the respondents. In essence, they argue that that status was a complete obstacle to extradition, and that the District Judge should not himself have embarked upon a consideration of whether that refugee status was still justified in current circumstances. It is convenient to take that issue first.
The refugee status issue
The 2003 Act does not deal expressly with the situation where a European Arrest Warrant has been issued in respect of someone who has refugee status here because of a well-founded fear of persecution in the issuing state. The provisions of that Act which provide some assistance are sections 39, 40, 70 and 121. The relevant parts of section 39 read as follows:
“(1) This section applies if—
(a) a person in respect of whom a Part 1 warrant is issued makes an asylum claim at any time in the relevant period;
(b) an order is made under this Part for the person to be extradited in pursuance of the warrant.
(2) The relevant period is the period—
(a) starting when a certificate is issued under section 2 in respect of the warrant;
(b) ending when the person is extradited in pursuance of the warrant.
(3) The person must not be extradited in pursuance of the warrant before the asylum claim is finally determined; and sections 35, 36, 47 and 49 have effect subject to this.
(4) Subsection (3) is subject to section 40.
(5) If the Secretary of State allows the asylum claim, the claim is finally determined when he makes his decision on the claim.”
The remaining sub-sections of section 39 deal with when an asylum claim is finally determined if the Secretary of State rejects it.
Section 40 disapplies section 39(3) if the Secretary of State certifies that certain conditions are satisfied. But no certificate can be issued if the person whose extradition is sought is a national or citizen of the territory to which his extradition has been ordered.
Consequently, one has here a statutory scheme in Part 1 cases where a person cannot be extradited to the territory of which he is a national or citizen while his asylum claim remains pending, in the sense of not having been finally determined. It seems to me clearly implicit that if the asylum claim is eventually granted, the refugee cannot then be extradited. If he could, little purpose would be served by the inherently temporary...
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