England and Wales High Court (Administrative Court) Decisions

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

		Royal Courts of Justice Strand, London, WC2A 2LL
		19th December 2014

The Honourable Mr Justice Blake:

1. 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.
2. 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.
3. 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].
4. 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.
5. 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.
6. 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.
7. 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.

8. 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.

9. 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 failure to check with the Home Office is such an obvious step for any competent authority seeking to take reasonable steps to ascertain the whereabouts of a fugitive, that the inference can only be drawn that the NCA in this respect was either not acting reasonably or was not competent to make inquiries or both. It is not, of course, the absence of response from the PCT that is relevant but the failure of the NCA. The NCA had agreed to undertake the role of receiving the EAW and assisting in its execution they must act reasonably and with competence.
10. I am unimpressed with the submission that there is no statutory duty on the NCA to investigate the possible whereabouts of the fugitive. On that submission an EAW could gather dust over the decades unless and until the happenstance of a police encounter were to incur. A delay in taking reasonable steps to execute an EAW engages issues of human rights. It is now plain, if it was ever in doubt, that extradition procedure has to meet standards set by human rights law, and the law on article 8 attaches weight to periods of delay where interferences with private and family life are concerned: see HH v Italy [2012] UKSC 25 per Lady Hale at [8] and EB Kosovo [2008] UKHL 41. The latter case was an immigration case where the context is somewhat different but the points made by Lord Bingham are reflected in the judgment of the Supreme Court in HH in passages that are well known to the parties and do not need repetition here. Lord Bingham said:

14. It does not, however, follow that delay in the decision-making process is necessarily irrelevant to the decision. It may, depending on the facts, be relevant in any one of three ways. First, the applicant may during the period of any delay develop closer personal and social ties and establish deeper roots in the community than he could have shown earlier. The longer the period of the delay, the likelier this is to be true. To the extent that it is true, the applicant's claim under article 8 will necessarily be strengthened. It is unnecessary to elaborate this point since the respondent accepts it.

15. Delay may be relevant in a second, less obvious, way. An immigrant without leave to enter or remain is in a very precarious situation, liable to be removed at any time. Any relationship into which such an applicant enters is likely to be, initially, tentative, being entered into under the shadow of severance by administrative order. This is the more true where the other party to the relationship is aware of the applicant's precarious position. This has been treated as relevant to the quality of the relationship. Thus in R (Ajoh) v Secretary of State for the Home Department [2007] EWCA Civ 655, para 11, it was noted that "It was reasonable to expect that both [the applicant] and her husband would be aware of her precarious immigration status". This reflects the Strasbourg court's listing of factors relevant to the proportionality of removing an immigrant convicted of crime: "whether the spouse knew about the offence at the time when he or she entered into a family relationship" see Boultif v Switzerland (2001) 33 EHRR 50, para 48; Mokrani v France (2003) 40 EHRR 123, para 30. A relationship so entered into may well be imbued with a sense of impermanence. But if months pass without a decision to remove being made, and months become years, and year succeeds year, it is to be expected that this sense of impermanence will fade and the expectation will grow that if the authorities had intended to remove the applicant they would have taken steps to do so. This result depends on no legal doctrine but on an understanding of how, in some cases, minds may work and it may affect the proportionality of removal.

16. Delay may be relevant, thirdly, in reducing the weight otherwise to be accorded to the requirements of firm and fair immigration control, if the delay is shown to be the result of a dysfunctional system which yields unpredictable, inconsistent and unfair outcomes. In the present case the appellant's cousin, who entered the country and applied for asylum at the same time and whose position is not said to be materially different, was granted exceptional leave to remain, during the two-year period which it took the respondent to correct its erroneous decision to refuse the appellant's application on grounds of non-compliance. In the case of JL (Sierra Leone), heard by the Court of Appeal at the same time as the present case, there was a somewhat similar pattern of facts. JL escaped from Sierra Leone with her half brother in 1999, and claimed asylum. In 2000 her claim was refused on grounds of non-compliance. As in the appellant's case this decision was erroneous, as the respondent recognised eighteen months later. In February 2006 the half brother was granted humanitarian protection. She was not. A system so operating cannot be said to be "predictable, consistent and fair as between one applicant and another" or as yielding "consistency of treatment between one aspiring immigrant and another". To the extent that this is shown to be so, it may have a bearing on the proportionality of removal, or of requiring an applicant to apply from out of country. As Carnwath LJ observed in Akaeke v Secretary of State for the Home Department [2005] EWCA Civ 947, [2005] INLR 575, para 25:

"Once it is accepted that unreasonable delay on the part of the Secretary of State is capable of being a relevant factor, then the weight to be given to it in the particular case was a matter for the tribunal"

11. I have no doubt that the passage of four years that I assess would have been avoided if a check had been made with the Home Office in November 2010 was both culpable delay and substantially caused the delay in the EAW being executed. I am, of course, conscious that the appellant is a fugitive and the founding responsibility for his being at large and out of the reach of the requesting state is his. Further, I consider that if this information had been before the District Judge the finding of no culpable delay would not or should not have been made. I therefore set aside the article 8 assessment made below and make a fresh assessment of the competing interests in the light of the information now available.
12. I accept that the offences for which return is wanted are not trivial, albeit that they are allegations of theft or personal property (two motor vehicles and items taken from a motor vehicle). The offences date from July 2002 and are very stale now by any reckoning. The appellant his wife and their three children now aged 17, 15 and 11 have been living in the UK since 2007. What would have been a three year residence if the warrant had been executed in 2010 is now a seven year residence. The appellant is not the sole carer of the children but is the sole breadwinner, and his removal will affect the economic and social integrity of the family unit. Children benefit from the presence of their fathers and their welfare is a relevant but not determinative consideration. I accept that the family circumstances of the appellant are not such that alone they would have precluded return for many of the reasons identified by the District Judge. However, when the passage of time of eight years to 2010 is added to the four year period of culpable delay identified above, the balance of competing interests both diminishes the weight to be attached to the public interest in returning this appellant to serve his sentence and increases the weight to be afforded to the respect to the family and private life established in this country.
13. Mr Sternberg is doubtless correct to submit that registration with the Home Office is not an assurance that the applicant was not wanted in Poland. This is not the point. Registration was the basis for a reasonable assumption that if the Polish authorities wanted the appellant's return from England, then they would be able to find him as he had registered openly with the competent national authority and had not changed his address thereafter. Although this was not a promise that the appellant was no longer wanted, it provided some basis for a belief that as the years passed one after another as the children grew up and became more attached to their host society, and employment and social ties developed, that the appellant was either not wanted at all, or with any degree of urgency or conviction in the possibility of his return.
14. In all these circumstances, the appellant has satisfied me that to order his return now would be a disproportionate and therefore unjustified interference with his Article 8 rights and those of his family. This appeal is accordingly allowed.