Budzik v Regional Court of Tarnow, Poland

Factual and Procedural Background

This appeal concerns the decision of District Judge Grant ("the DJ") at Westminster Magistrates' Court on 22 May 2015 ordering the extradition of the Appellant to Poland pursuant to a European Arrest Warrant ("EAW") issued by the Respondent on 13 November 2014 and certified by the National Crime Agency on 26 November 2014. Poland is a designated Category 1 territory under Part 1 of the Extradition Act 2003.

The EAW is based on the Appellant's conviction by the District Court in Tarnow on 28 December 2010 for fraud offences involving seven occasions between 24 April and 13 May 2010 where the Appellant obtained fuel by presenting counterfeit bank transfer receipts and misleading the vendor. The total loss was 59,986 Zlotys (approximately £10,285.20). The Appellant was sentenced to 1 year and 2 months' imprisonment, conditionally suspended. This sentence was activated on 10 June 2013 due to failure to pay compensation.

The sole question before the DJ was whether extradition would infringe the Article 8 rights of the Appellant, his wife, and their 5-year-old daughter. The wife suffers from multiple sclerosis and receives treatment at a hospital in the UK involving a drug called Gilenya, which arrests but does not improve the disease.

At the appeal hearing before Nicol J on 16 July 2015, an issue was raised regarding whether the wife would be entitled to remain in the UK if the Appellant was extradited, given she is a dependant and not a worker. It was noted there was no evidence on whether Gilenya would be available or affordable in Poland if she had to return there.

The Appellant sought permission to amend grounds of appeal and to adduce fresh evidence regarding the impact of extradition on his wife's right of residence and access to medical treatment. The Respondent did not oppose these applications, and permission was granted.

The Appellant's further submissions argued that the wife would lose her right of residence and NHS healthcare if the daughter were taken into social services care, which the wife expressly opposed. The Appellant contended that extradition would cause loss of essential treatment and benefits for the wife.

The Respondent submitted there was no evidence that the daughter would be taken into care, and thus the wife would remain entitled to residence and treatment in the UK.

The DJ found no basis to infer the daughter would be removed from the mother by the local authority and noted the family circumstances were known to the local authority, with no evidence of removal plans.

The Appellant also challenged the finding that he was a fugitive from the time he left Poland, arguing that fugitive status arises only when a suspended sentence is activated. The court rejected this, citing authority that a person can be "unlawfully at large" once conditions of a suspended sentence are breached.

After conducting the balancing exercise required under Article 8 ECHR, the DJ acknowledged the hardship extradition would cause but concluded extradition was proportionate. The appeal was dismissed.

Legal Issues Presented

1. Whether the extradition of the Appellant would infringe the Article 8 rights of the Appellant, his wife, and their daughter.
2. Whether the Appellant was properly considered a fugitive under the law at the time he left Poland.
3. Whether the District Judge erred in weighing the proportionality of extradition given the Appellant’s family circumstances and the nature of the offences.

Arguments of the Parties

Appellant's Arguments

• The wife would lose her right of residence in the UK if the Appellant was extradited, as she is a dependant and not a worker.
• The daughter would be taken into social services care, resulting in the wife losing custody and thus residence rights and access to free NHS healthcare.
• The wife would be forced to return to Poland, where essential treatment with Gilenya may be unavailable or unaffordable, leading to irreversible deterioration of her condition.
• The Appellant was not a fugitive until the suspended sentence was activated; thus, the DJ erred in this finding.
• The DJ failed to properly consider the full extent of the wife’s illness and the devastating impact on the family, arguing that extradition was disproportionate for offences that did not warrant immediate custody in Poland.

Respondent's Arguments

• No evidence suggests the local authority would take the daughter into care; therefore, the wife would retain her residence rights and access to treatment in the UK.
• The Appellant became a fugitive when he breached the conditions of his suspended sentence by leaving Poland without paying compensation.
• The DJ’s proportionality assessment was correct, balancing the hardship against the seriousness of the offences and relevant case law.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Pinto v Portugal [2014] EWHC 1243 (Admin)	When a person becomes a fugitive in relation to a suspended sentence.	The court rejected the Appellant's reliance on this case to argue fugitive status arises only upon sentence activation.
Salbut v Circuit Court in Gliwice [2014] EWHC 4275 (Admin)	"Unlawfully at large" applies from breach of conditions of suspended sentence.	The court accepted this principle, finding the Appellant was a fugitive from the time he left Poland without fulfilling obligations.
Celinski v Poland [2015] EWHC 1274 (Admin)	Approach to balancing exercise under Article 8 ECHR in extradition cases.	The DJ referred to this case in conducting the proportionality assessment and concluded extradition was proportionate.

Court's Reasoning and Analysis

The court carefully examined the Article 8 rights engaged by the Appellant's extradition, focusing on the family's private and family life, especially the wife's serious illness and the daughter's welfare. The court noted the absence of evidence that the local authority would remove the daughter into care, and found no basis to infer such an outcome.

Regarding the wife's right of residence, the court accepted the Respondent's submission that she would retain residence in the UK as the daughter is a child attending school, and thus the subsidiary issue about access to treatment in Poland did not arise.

On the question of fugitive status, the court applied settled law that a person becomes unlawfully at large upon breaching the conditions of a suspended sentence, not only when that sentence is activated. The Appellant's admission of failure to pay compensation supported this finding.

The court acknowledged the difficulty of the case and the hardship extradition would cause but, applying the balancing exercise under Article 8 ECHR and relevant case law, concluded that extradition was proportionate given the seriousness of the offences and the public interest in their prosecution.

Holding and Implications

The appeal is DISMISSED.

The direct effect is that the Appellant's extradition to Poland pursuant to the European Arrest Warrant will proceed. The court did not set any new precedent but reaffirmed established principles concerning the assessment of Article 8 rights in extradition cases and the determination of fugitive status in relation to suspended sentences. The decision underscores the necessity of evidential support when claiming adverse consequences from extradition on family life and residence rights.