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You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> District Court In Ostroleka, Second Criminal Division (A Polish Judicial Authority), v Dytlow & Anor [2009] EWHC 1009 (Admin) (28 April 2009) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2009/1009.html Cite as: [2009] Extradition LR 238, [2009] EWHC 1009 (Admin)

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IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT

		Royal Courts of Justice Strand London WC2A 2LL
		28 April 2009

LORD JUSTICE KEENE:

Introduction

1. 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

2. 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.
3. 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.
4. 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.
5. 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".
6. 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.
7. 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.
8. 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

9. 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

10. 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.

11. 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 restriction imposed by section 39. There are similar provisions to be found in section 121 of the 2003 Act relating to Part 2 extradition proceedings, those arising from requests by countries other than those falling within the European Arrest Warrant system.
12. Section 70(1) also concerns Part 2 extradition requests. It obliges the Secretary of State to certify the request if it is a valid one. But section 70(2) provides:

"The Secretary of State may refuse to issue a certificate under this section if-

(a) he has power under section 126 to order that proceedings on the request be deferred,

(b) the person whose extradition is requested has been recorded by the Secretary of State as a refugee within the meaning of the Refugee Convention, or

(c) the person whose extradition is requested has been granted leave to enter or remain in the United Kingdom on the ground that it would be a breach of Article 2 or 3 of the Human Rights Convention to remove him to the territory to which extradition is requested."

13. I would myself not regard the use of the word "may" in the opening words of section 70(2) as conferring any real discretion on the Secretary of State in a case where refugee status has been granted to the person in question, and where that status is not under active reconsideration by the Secretary of State.
14. So far all the indications in the 2003 Act are that the existence of refugee status does constitute a valid objection to the extradition of the refugee. That would be consistent with the Refugee Convention itself, Article 33 of which states:

"1. No Contracting State shall expel or return ("refouler") a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.

2. The benefit of the present provision may not, however, be claimed by a refugee whom there are reasonable grounds for regarding as a danger to

the security of the country in which he is, or who, having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of that country."

It is to be observed that the exception created by Article 33.2 will be of limited application in England and Wales since our domestic law, as to be found in the Immigration Rules, paragraph 334(iii) and (iv), would normally prevent such a person being granted asylum in this country in the first place. In any event, this is not a case where Article 33.2 is in play.

15. I shall turn in a moment to the provisions concerning the cessation of refugee status. But subject to that possibility of cessation, the position generally is that Article 33.1 would prevent the extradition of a person to his home territory (or indeed any other territory) where his life or freedom would be threatened on account of his race or other factor there referred to (essentially the Refugee Convention grounds).
16. To sum up the legal position so far, it appears to me that once refugee status has been granted to a person, and so long as it persists, that person cannot be extradited to his country of nationality, of whose protection he, by definition, cannot avail himself.
17. There are provisions both in the Refugee Convention and in domestic law which govern the possible cessation or revocation of refugee status. Article 1C of the Convention sets out a number of circumstances in which the Convention "shall cease to apply", and one of those is paragraph (5), which states:

"He can no longer, because the circumstances in connexion with which he has been recognized as a refugee have ceased to exist, continue to refuse

to avail himself of the protection of the country of his nationality ..."

For present purposes, it is unnecessary to set out the proviso to that paragraph.

18. The Refugee Convention does not itself specify the procedures that should apply for determining whether that or any other paragraph of Article 1C apply in a given case, those procedures being left to the states which are party to the Convention. However, since then, the EU Council Directives 2004/83/EC and 2005/85/EC have come into being. Article 11 of the former provides:

"Member States shall have regard to whether the change of circumstances is of such a significant and non-temporary nature that the refugee's fear of persecution can no longer be regarded as well-founded."

19. The latter Directive sets out minimum standards on procedures in member states for granting and withdrawing refugee status. Essentially, a refugee must be informed that a competent authority is reconsidering his status and he must be given an opportunity to submit his reasons why his status should not be withdrawn, including the opportunity for a personal interview for the refugee and dependants. The decision to withdraw refugee status must be given in writing, and include the reasons of fact and law, and must contain information on how to challenge the decision.
20. The passage I have already cited from Article 11 of the earlier Directive reflects the approach to be found in the UNHCR Handbook on the Refugee Convention. At paragraph 135 of that Handbook (1992 edition) one finds the following passage dealing with cessation of refugee status because of change of circumstances:

"'Circumstances' refer to fundamental changes in the country, which can be assumed to remove the basis of the fear of persecution. A mere - possibly transitory - change in the facts surrounding the individual refugees's fear, which does not entail such major changes of circumstances, is not sufficient to make this clause applicable. A refugee's status should not in principle be subject to frequent review to the detriment of his sense of security, which international protection is intended to provide."

21. While that Handbook is not itself a source of law, it is regarded as good evidence of international practice for the purposes of interpreting an international Convention: see ex parte Adan [2001] 2 AC 477 at 500 and 520. Moreover, the approach set out at paragraph 135 of the Handbook has been endorsed by the House of Lords in the case of R(Hoxha) v the Special Adjudicator [2005] UKHL 19; [2005] 1 WLR 1063. There, at paragraph 65 in the speech of Lord Brown of Eaton-under-Heywood, with whom the other members of the House agreed, one finds the following passage:

"The reason for applying a 'strict' and 'restrictive' approach to the cessation clauses in general and 1C(5) in particular is surely plain. Once an asylum application has been formally determined and refugee status officially granted, with all the benefits both under the Convention and under national law which that carries with it, the refugee has the assurance of a secure future in the host country and a legitimate expectation that he will not henceforth be stripped of this save for demonstrably good and sufficient reason."

22. So the decision to revoke a person's refugee status is not something to be undertaken either lightly or on the basis of what may prove to be merely temporary changes in the country from which that person has fled. All this has implications for the procedures to be followed if revocation is contemplated. English domestic law deals with those procedures by way of the Immigration Rules. Paragraph 339A of those Rules empowers the Secretary of State to revoke a grant of asylum, broadly speaking, in the circumstances set out in Article 1C of the Refugee Convention, replicating paragraph (v) of Article 1C in paragraph 339A(v) of the Rules. But the Rules then add this:

"In considering (v) and (vi), the Secretary of State shall have regard to whether the change of circumstances is of such a significant and non-temporary nature that the refugee's fear of persecution can no longer be regarded as well-founded."

23. Any decision by the Secretary of State to revoke a grant of asylum status would normally carry with it a revocation of the respondent's indefinite leave to remain, and would give rise to a right of appeal to the Asylum and Immigration Tribunal, a right required by Article 39(1)(e) of the Council Directive 2005/85/EC.

The role of the extradition hearing

24. It will be seen from the preceding, regrettably lengthy, analysis that the process of bringing to an end the refugee status of a person is a necessarily elaborate one. It is a matter in the first instance for the Secretary of State, and then, in many instances, for the Asylum and Immigration Tribunal. It is not a matter on which the District Judge, seized of extradition proceedings, should pronounce; nor would it in practice be sensible for him to do so. The issues which arise in asylum cases are often very complex, and those issues are best dealt with, other than initially by the Secretary of State, by the Asylum and Immigration Tribunal, which has been recognised by the higher courts as a specialist Tribunal, to whose expertise on these matters particular regard should be paid.
25. Both parties to this appeal now recognise that it was not for the District Judge in this case to make a decision on the respondents' continuing entitlement to refugee status. He is, as Mr Lewis QC for the appellant authority has put it in his written argument, "the wrong forum to revisit the decision on the grant of asylum". The judge's decision amounts to a revocation, in effect, of the grant of asylum, or at least a collateral challenge thereto. That does not fall within his powers. Miss Montgomery QC, for the respondents, agrees. So do I.
26. What then is to happen when a District Judge is faced with a European Arrest Warrant for someone who enjoys refugee status in this country and the issuing territory is his country of nationality from which he has fled? At one time it was being argued in the course of the submitted written argument by Mr Lewis that the District Judge should have adjourned his decision on extradition pending a determination by the Secretary of State on the continuance of refugee status. For my part, I cannot see that that would have been appropriate in the present case. Of course, questions of adjournment are first and foremost for the judge conducting the hearing, as with any legal proceedings. But for it to be properly open to him to grant an adjournment for such a reason, there would, in my view, have to be some proper factual basis for regarding the respondents' refugee status as questionable; that is to say, for it to be seen as a live issue. If the Secretary of State had indicated that she wished to reconsider the respondents' refugee status, that could have provided such a basis for an adjournment. It may be that if there was compelling evidence from an appropriate body that there had been such an enduring change of circumstances in their home country that persons of their ethnicity were no longer at risk of persecution, that too might justify an adjournment for such a purpose. I have in mind the possibility of a new country guidance case being issued by the AIT to such an effect. There may be other circumstances where an adjournment is appropriate for such a purpose, though they would, in my view, be rare. But an adjournment so that a defendant's refugee status can be reconsidered is not something which would be appropriate as a matter of routine merely because extradition is being sought of the refugee to his home country.
27. In the present case, there was and is no evidence whatsoever to show that the Secretary of State is reconsidering the respondents' refugee status. Nor is there any compelling evidence of the kind to which I have referred. Nor in the event does Mr Lewis now seek an order that the District Judge should adjourn the proceedings.
28. For my part, I am satisfied that the District Judge was, for these reasons, wrong to reject the arguments about the refugee status of these two brothers being advanced on their behalf. So long as that status persists, it provides a valid objection to their extradition to Poland.
29. In those circumstances, what order should the District Judge have made? It is agreed at the Bar that the 2003 Act makes no express provision for the discharge of a defendant who enjoys the status of a refugee, and that, on the face of it, the Act provides a detailed statutory code setting out the various bases upon which discharge can be ordered by the judge. Sections 10-21 and section 25 make such provision, and in reality section 21, which deals with the compatibility of extradition with rights under the ECHR, will often operate in a refugee case because of Articles 2 and 3 of that Convention. But it remains true that there is no express provision dealing with the discharge of a defendant because that defendant enjoys refugee status.
30. However, it is, in any event, well-established that the District Judge has a power to prevent an abuse of process through the pursuit of extradition. Apart from anything else, section 9(1) of the 2003 Act gives the judge at the extradition hearing all the powers that a Magistrates' Court would have on the summary trial of an information, and there is ample authority that a Magistrates' Court is empowered to stay proceedings as an abuse of process. But in the specific case of extradition proceedings, it has been held that under the 2003 Act there is an implied power possessed by the judge conducting an extradition hearing to refuse to order extradition where the proceedings amount to an abuse of process. This court so held in R(Bermingham) v the Director of the Serious Fraud Office [2006] EWHC 200 Admin, in particular at paragraphs 91-97, and again in R(Government of the United States of America) v Senior District Judge of Bow Street Magistrates' Court and Tollman [2006] EWHC 2256 Admin In that latter case, the then Lord Chief Justice, Lord Phillips of Worth Matravers, giving the judgment of the court, endorsed the decision in the Bermingham case on this point, and referred at paragraph 83 to the District Judge's duty in extradition cases to decide whether the process is being abused, if put on enquiry as to such a possibility. It is also clear from paragraph 92 of that case that if the District Judge finds that an order for extradition would involve an abuse of process, he should order the discharge of the defendant. That seems to me to be the appropriate outcome in the present case.
31. To order the extradition of a person or persons enjoying the status of refugees in this country would, for the reasons I have set out earlier, amount to an abuse of process. It follows that the District Judge in the present case was right to order the discharge of the respondents, albeit that he arrived at that conclusion for somewhat different reasons.
32. In those circumstances, it becomes unnecessary to deal with the other issues in this case. I would only comment that I find the District Judge's conclusion on the Article 8 issue surprising. It has not been argued before us, but we should not be taken as endorsing his decision in that respect. Nonetheless, the end result is that I would dismiss this appeal.
33. MR JUSTICE RODERICK EVANS: I agree.
34. LORD JUSTICE KEENE: Are there any applications?
35. MR LEWIS: I am much obliged. This is extremely helpful, my Lord.
36. MISS MONTGOMERY: The respondents have been in receipt of community legal funding, so I think all I need is the usual administrative order.
37. LORD JUSTICE KEENE: The usual legal aid order effectively, yes. Thank you both very much, and thanks to you and your juniors for the very helpful skeleton arguments put in in advance, and for the very realistic approach that has in the end been adopted by both sides to this case, which has enabled it to be completed much faster than the original time estimate.