In each case the defendant sought to resist European Extradition Warrants saying that an order would be a disporportionate interference in their human right to family life. The Court asked whether its approach as set out in Norris, had to be amended in the light of the case of ZH.
Held: HH and PH’s appeals failed, but that of FK succeeded. Though there are similarities and differences between extradition and immigration and domestic criminal cases, a court must still take care to examine the effect on family life. There is no test of exceptionality, the public interest in extradition and that those guilty of offences should receive appropriate punishment must be balanced against a duty not to interfere in private and family life. The court must be careful not to create a safe haven for fugitives, and should show respect for foreign jurisdictions. The nature and seriousness of the offences and any effect of delay must be allowed for. In summary, an interference with family life will usually have to be severe to outweight the public interests in effective extradition.
The court contrasted and compared the laws of extradition and domestic criminal process.
Lord Kerr said: ‘Article 3.1 of the UN Convention on the Rights of the Child dated 20 November 1989 provides that ‘in all actions concerning children . . the best interests of the child shall be a primary consideration’ . . The word ‘concerning’ in article 3.1, like the phrase ‘relating to’ in article 24.2, encompasses actions with indirect, as well as direct, effect upon children: the ZH (Tanzania) case, para 26 (Lady Hale). The rights of children under article 8 must be examined through the prism of article 3.1: see paras 21 to 23 of the same case.’
Judges:
Lord Hope, Deputy President, Lady Hale, Lord Mance, Lord Judge, Lord Kerr, Lord Wilson, Lord Brown
Citations:
[2012] UKSC 25, [2012] 3 WLR 90, UKSC 2011/0128, [2013] 1 AC 338, [2012] HRLR 25, [2012] 4 All ER 539
Links:
Bailii, Bailii Summary, SC Summary, SC
Statutes:
Extradition Act 2003, European Convention on Human Rights 8
Jurisdiction:
England and Wales
Citing:
Cited – Kakis v Government of the Republic of Cyprus HL 1978
Kakis’ extradition was sought by Cyprus in relation to an EOKA killing in April 1973. Although a warrant for Kakis’ arrest had been issued that very night, he had escaped into the mountains and remained hidden for 15 months. Subsequently, he settled . .
Cited – Norris v Government of United States of America SC 24-Feb-2010
The defendant faced extradition to the USA on charges of the obstruction of justice. He challenged the extradition on the basis that it would interfere with his article 8 rights to family life, given that the offence was merely ancillary, the result . .
Appeal from – F-K, Regina (on The Application of) v Polish Judicial Authority Admn 19-Jan-2012
The defendant sought to resist the European Arrest Warrant, saying that her extradition would breach her and her family’s human right to a family life. Since fleeing Poland, she had lived in the UK and now had young children attanding school. . .
Appeal from – HH, Regina (on The Application of) v City of Westminster Magistrates Court Admn 11-May-2011
The defendant appealed against her extradition under a European Arrest Warrant, saying that an order would be a disproportionate interference in her, and family’s, human rights to a family life. . .
Cited – ZH (Tanzania) v Secretary of State for The Home Department SC 1-Feb-2011
The respondent had arrived and claimed asylum. Three claims were rejected, two of which were fraudulent. She had two children by a UK citizen, and if deported the result would be (the father being unsuitable) that the children would have to return . .
Cited – Rodrigues Da Silva and Hoogkamer v The Netherlands ECHR 31-Jan-2006
A Brazilian mother came to the Netherlands in 1994 and set up home with a Dutch national but not applying for a residence permit. In 1996 they had a daughter who became a Dutch national. In 1997 they split up and the daughter remained with her . .
Cited – Uner v The Netherlands ECHR 18-Oct-2006
(Grand Chamber) The court considered the application of article 8 considerations in extradition and similar proceedings, and said: ‘the best interests and well-being of the children, in particular the seriousness of the difficulties which any . .
Cited – Beoku Betts v Secretary of State for the Home Department HL 25-Jun-2008
The appellant had arrived from Sierra Leone and obtained student permits. When they expired he sought asylum, citing his family’s persecution after a coup, and that fact that other members of his family now had indefinite leave, and he said that an . .
Cited – Wellington Regina, (on the Application of) v Secretary of State for the Home Department HL 10-Dec-2008
It was sought to extradite the defendant to face trial for two alleged murders. He now challenged the order for his extradition saying that his treatment in Missouri would amount to inhuman or degrading punishment in that if convicted he would face . .
Cited – Neulinger And Shuruk v Switzerland ECHR 6-Jul-2010
(Grand Chamber) The Swiss Court had rejected the claimant mother’s claim, under article 13b of the Hague Convention, that there was a grave risk that returning the child to Israel would lead to physical or psychological harm or otherwise place him . .
Cited – Harkins And Edwards v The United Kingdom ECHR 17-Jan-2012
Each defendant objected to their proposed extradition to the US, saying that if extradited and convicted they would face the possibility of a death sentence or of a life sentence without the possibility of parole, each being incompatible with . .
Incorrect – B v The District Court In Trutnov and Another (Two Czech Judicial Authorities) Admn 15-Apr-2011
In each case the defendant argued that his extradition would interfere with his article 8 rights to private and family life.
Held: Silber J said: ‘It is clear that the approach of the courts to article 8 rights has to be radically different in . .
Cited – Aronica v Germany ECHR 18-Apr-2002
(Decision as to admissibility) . .
Cited – BH and Another v The Lord Advocate and Another SC 20-Jun-2012
The appellants wished to resist their extradition to the US to face criminal charges for drugs. As a married couple that said that the extraditions would interfere with their children’s rights to family life.
Held: The appeals against . .
Cited – Attorney-General for Northern Ireland v Gallagher HL 1961
The defendant appealed against his conviction for the murder of his wife. The court allowed his appeal on the ground of a misdirection. The prosecutor having now appealed, he sought to plead insanity.
Held: The appeal was allowed on the new . .
Cited – Olsson v Sweden (No 1) ECHR 24-Mar-1988
Hudoc Judgment (Merits and just satisfaction) Preliminary objection rejected (non-exhaustion); Violation of Art. 8; Non-pecuniary damage – financial award; Costs and expenses award – domestic proceedings; Costs . .
Cited – Launder v The United Kingdom ECHR 8-Dec-1997
The Commission considered the admissibility of a complaint that the United Kingdom would violate articles 2, 3, 5, 6 and 8 if it extradited him to the Hong Kong Special Administrative Region.
Held: The application was manifestly ill-founded: . .
Cited – Kleuver v- -Norway ECHR 30-Apr-2002
The mother resisted extradition to face a drug trafficking charge. She complained that she would be separated from her child on its birth.
Held: Her claim failed. . .
Cited – Gorczowska, Regina (on The Application of) v District Court In Torun Poland Admn 8-Feb-2012
The defendant appealed against an order for her extradition to Poland to serve a sentence for possessof drugs imposed in 2006. Since living here she had given birth to a child, and they lived with her father.
Held: It would not be . .
Cited – Regina v Sectretary of State for the Home Department ex parte Razgar etc HL 17-Jun-2004
The claimant resisted removal after failure of his claim for asylum, saying that this would have serious adverse consequences to his mental health, infringing his rights under article 8. He appealed the respondent’s certificate that his claim was . .
Cited – HM Advocate, Re 4th Criminal Court of Lisbon, A Porugese Judicial Authority HCJ 9-Dec-2011
The Lord Advocate appealed against dismissal of extradition proceedings against the two defendants. . .
Cited – King v The United Kingdom ECHR 26-Jan-2010
Mr King was accused of being a member of a gang engaged in a conspiracy to import large quantities of ecstasy into Australia. He appealed against extradition saying that this would interfere with his article 8 rights. He had in the United Kingdom . .
Cited – Huang v Secretary of State for the Home Department HL 21-Mar-2007
Appellate Roles – Human Rights – Families Split
The House considered the decision making role of immigration appellate authorities when deciding appeals on Human Rights grounds, against refusal of leave to enter or remain, under section 65. In each case the asylum applicant had had his own . .
Cited by:
Cited – BH and Another v The Lord Advocate and Another SC 20-Jun-2012
The appellants wished to resist their extradition to the US to face criminal charges for drugs. As a married couple that said that the extraditions would interfere with their children’s rights to family life.
Held: The appeals against . .
Cited – Zoumbas v Secretary of State for The Home Department SC 27-Nov-2013
The appellant challenged a decision that he did not qualify for asylum or humanitarian protection and that his further representations were not a fresh human rights claim under paragraph 353 of the Immigration Rules. He argued that the return to the . .
Cited – SG and Others, Regina (on The Application of) v Secretary of State for Work and Pensions SC 18-Mar-2015
The court was asked whether it was lawful for the Secretary of State to make subordinate legislation imposing a cap on the amount of welfare benefits which can be received by claimants in non-working households, equivalent to the net median earnings . .
Cited – Nzolameso v City of Westminster SC 2-Apr-2015
The court was asked ‘When is it lawful for a local housing authority to accommodate a homeless person a long way away from the authority’s own area where the homeless person was previously living? ‘ The claimant said that on applying for housing she . .
Cited – Lord Advocate (Representing The Taiwanese Judicial Authorities) v Dean SC 28-Jun-2017
(Scotland) The respondent was to be extradited to Taiwan to serve the balance of a prison term. His appeal succeeded and the order quashed on the basis that his treatment in the Taiwanese prison system would infringe his human rights. The Lord . .
Cited – Goldtrail Travel Ltd v Onur Air Tasimacilik As SC 2-Aug-2017
At first instance the appellant had dishonestly assisted another party to defraud the respondent, and ordered payment of substantial damages. The defendant, non-resident, sought to appeal, and the respondent asked the court to order payment into . .
Cited – Her Majesty’s Attorney General v Akhter and Another CA 14-Feb-2020
Islamic Nikah Ceremony did not create a marriage
The parties had undertaken, in 1998, an Islamic marriage ceremony, a Nikah. They both knew at the time that to be effective in UK law, there would need to be a civil ceremony, and intended but did not achieve one. The parties having settled their . .
Cited – Konecny v District Court In Brno-Venkov, Czech Republic SC 27-Feb-2019
K had been convicted and sentenced in his absence. His extradition was requested under an EAW which asserted that it was based upon an enforceable judgment, but that he had an unqualified right to be retried. He argued that the delay (since 2004 for . .
Cited – DA and Others, Regina (on The Application of) v Secretary of State for Work and Pensions SC 15-May-2019
Several lone parents challenged the benefits cap, saying that it was discriminatory.
Held: (Hale, Kerr LL dissenting) The parents’ appeals failed. The legislation had a clear impact on lone parents and their children. The intention was to . .
Lists of cited by and citing cases may be incomplete.
Extradition, Human Rights, Criminal Sentencing
Updated: 07 February 2022; Ref: scu.460539