Slawonir Oreszczynsi v Krakow District Court Poland
| Jurisdiction | England & Wales |
| Judge | The Honourable Mr Justice Blake |
| Judgment Date | 19 December 2014 |
| Neutral Citation | [2014] EWHC 4346 (Admin) |
| Docket Number | Case No: CO/4435/2014 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 19 December 2014 |
[2014] EWHC 4346 (Admin)
The Honourable Mr Justice Blake
Case No: CO/4435/2014
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Nicholas Hearn (instructed by Furnival Chambers) for the Appellant
Mr Daniel Sternberg (instructed by 9–12 Bell Yard Chambers) for the Respondent
Hearing dates: 21 November 2014
On the 26 November 2014 at the conclusion of oral argument I gave a short judgment and adjourned this case for 28 days to enable i) the NCA to file a supplementary witness statement to explain what inquiries were conducted in November 2010 when a duly signed and certified copy of the EAW was received by the NCA and ii) for the parties to make written representations as to the implications for this appeal.
On 2 December 2014 Mr Davey of the NCA made a further witness statement. On 16 December I received representations from the appellant and on 17 December from the respondent. I conclude that a further oral hearing is not necessary and I propose to determine this appeal on the papers.
The present judgment should be read together with the judgment of the 26 November 2014 explaining the issues and why I was adjourning for further inquiries to be made. I considered that any explanation from the NCA as to what action was taken with respect to the appellant between 15 November 2010 when a properly signed EAW was certified and his arrest on 22 June 2014 would be material to considering whether District Judge Tempiah was correct to conclude that there was no culpable delay (see [42] of the decision) and in the circumstances of this case the delay was not considerable [45].
Mr Davey in his second witness statement explains that the appellant's name was added to the National Back Office (NHS) location checks spreadsheet on 26 October 2010 this was in advance of the duly signed EAW being received. On 8 November 2010 in response to this action information was received stating that the subject was registered at Gateshead and South Tyneside Primary care Trust. A request for information was sent to the PCT on 9 November 2010. It seems no response was ever received.
Mr Davey's further statement reveals no further action was taken to trace the appellant or serve him with the warrant after 15 November 2010 and in particular there is no evidence that checks were made with the Home Office with whom the appellant had been registered since November 2009.
The appellant's supplementary submissions contend that the court can now be confident after due investigation that no further inquiries were made and the most obvious place to ascertain if the appellant could not be contacted and in the circumstances the delay was manifestly culpable and should result in the article 8 ECHR ground of resistance to removal to be made out and that this appeal should be allowed.
The respondent contends that the passage of time between 2010 and 2014 is not such to make the applicant's return disproportionate. In particular it is submitted:-
i. Registration with the Home Office afforded no basis for any belief that he was not wanted in Poland.
ii. There has been change of circumstances in the family life of the appellant as a result of the passage of time.
iii. The Polish authorities are not to be held responsible for the failure of the PCT to make any response to the November 2010 inquiry.
iv. The NCA is under no statutory duty to make inquiries.
v. The court should be wary before criticising SOCA or the NCA for the passage of time before a warrant is executed citing Foskett J in Jabczysnki [2013] EWHC 526 Admin at [12] approving certain observations made by the district Judge.
I recognise that there is a difference between the passage of time and culpable delay by a public authority. Culpable delay can only arise when something ought to have been done quicker than it was and there is no good explanation for why it was not. It will not be easy to draw the inference of culpable delay from the mere passage of time for a number of reasons, many of which were identified in Jabcysnki:
i. where the appellant is a fugitive from a requesting state there is no purpose of issuing an EAW in a particular language unless there is some reason to believe that the fugitive is in the relevant country;
ii. there are resource issues for any public authority dealing with a large number of applications and the court will be in no position to know what priority should be given to the particular case;
iii. there is no duty on the requesting state or its agents to spend potentially fruitless time and effort in making inquiries as to the whereabouts of the fugitive if there is no good information available likely to inform.
However, having taken these points into account, I have no hesitation in reaching the conclusion that the failure to make any inquiries of the appellant's whereabouts after 15 November 2010, let alone inquiries with one of the most obvious ports of call, the Home Office that deals with foreign national generally and Polish workers in particular at that time, is astonishing. This is not a conclusion reached lightly but after due inquiry and adjournment for an opportunity to investigate. I make no personal criticism of Mr Davey who may have been working to instructions, but the institutional...
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