AA (Poland) v Secretary of State for the Home Department

LADY JUSTICE BLACK: This is an application for permission to bring a second appeal in relation to a decision dismissing the applicant's appeal against a deportation order which had been made on the basis that, notwithstanding that he is an EEA national, his removal from the UK was appropriate, being conducive to the public good.

I do not need to go into the detail of the case for the purposes of this short permission judgment. The applicant has an extensive criminal record, reflecting his frequent appearances before the courts in this country. Between February 2005 and February 2010, he made 26 appearances in court in relation to 42 offences. Ultimately he pleaded guilty to possessing a prohibited weapon and ammunition and he was sentenced to a total of five years' imprisonment. It was following this that he was served with a notice of liability to deportation. His appeal against the deportation process was launched in April 2012. The case was heard by the First Tier Tribunal in June 2014 and his appeal to the Upper Tribunal, held later that year, was decided by a decision promulgated in January 2015. Both tribunals dismissed his appeal, but for rather different reasons in each case.

The applicant's early release date in relation to his five year sentence of imprisonment would have been in March 2013. However, he was detained thereafter in immigration detention. This was because of the extradition process in relation to offences of burglary of which he had been convicted in his absence in Poland and sentenced to just over two years' imprisonment. He was arrested in this country under a European Arrest Warrant and extradition proceedings were begun. They made erratic progress and were ultimately brought to an end when the Administrative Court held that they had not been validly commenced.

Meanwhile, the applicant had served in detention roughly the length of the sentence that was imposed in Poland for the burglaries. I think by the time of the decision of Collins J he had served just short of the amount to which he had been sentenced in Poland. Had he been extradited to Poland, he would have been given credit for that time spent in detention in this country in order to ensure that he was not subjected to double punishment. He argues that there is a real risk that if he is deported instead of being extradited he will not get this credit and that the double punishment that would then result would be a breach of his Article 3 rights.

The First Tier Tribunal dealt with this claim at paragraph 25 of its judgment. It found essentially that the applicant was the author of his own misfortune, namely because he could have agreed to the extradition rather than opposing it and thereby protracting the process, and in view of that, and because there was, it thought, still a possibility of extradition proceedings being restarted with the applicant being extradited to Poland successfully and getting credit therefore for the time he had served, it found that he had not made out an Article 3 claim on the basis of double punishment.

The Upper Tribunal acknowledged that there were what it described as "possibly problems" with the First Tier Tribunal's view that the applicant should have acquiesced in the extradition proceedings. However, instead of finding that there was therefore a material error of law and going on to give directions or to determine the appeal again, it found that it was not in fact necessary to set aside the determination because the applicant had not established that he was likely to receive no credit in Poland for periods of imprisonment served here, so it dismissed his appeal.

The applicant seeks to appeal to this court on a number of grounds. First, he points out that the question is not whether the Polish authorities would give him credit, but whether there is a real risk that they would not do so. His argument is perhaps not so much that the test has been wrongly formulated in this regard by the Upper Tribunal, but that they have not carried through the implications of it into their consideration of such evidence as there was about the likely response of the Polish authorities.

Secondly, he argues that the procedure adopted by the Upper Tribunal was flawed. The proposition that there was a real risk that the Polish authorities would not give credit was, or might have been -- not everything is yet clear -- accepted in the First Tier Tribunal. Its refusal of the Article 3 claim seems to be on the basis that there would nonetheless be no breach of the Article 3 rights. If the Upper Tribunal was not prepared to accept this, the argument goes, it should have set aside the flawed determination of the First Tier Tribunal and given directions which would have enabled the applicant to address the issue which had now become live with regard to the degree of risk that there was of double punishment in Poland.

It is fair to say that this argument suffers from the defect that it does not seem that an adjournment was sought from the Upper Tribunal. It will have to take its chances among the rest of the arguments, but I am not going to refuse permission to put it forward.

Thirdly, the applicant argues that there was in fact sufficient material available to the Upper Tribunal to find a real risk existed in this case. He argues that the pursuit by the Polish authorities of his extradition, even right up to the point when he had nearly finished the equivalent of his sentence in detention here in the UK, shows that they had retained their interest in having him returned to Poland and have not abandoned his case by virtue, for example, of the passage of time since he was convicted of the offences originally in 2004. In those circumstances, and given the absence in his case of the assurance that would come from the extradition agreements which would prevent him, were he to be extradited, from having to serve the sentence again, he argues that there is inevitably sufficient risk, on the facts of the case, of him having to serve a double punishment to require the UK authorities to seek an assurance from the Polish authorities that that would not happen before returning the applicant to what might otherwise turn out to be double punishment in breach of his Article 3 rights.

He relies in support of that argument on Tarakhel v Switzerland, a decision of the European Court of Human Rights handed down in November 2014 after the argument took place in this case in front of the Upper Tribunal. He argues that that shows that there can be a duty on a state which is proposing to remove someone to another country to obtain sufficient assurances about what will occur there, failing which removal can be a breach of Article 3. This, he argues, applies in the present case to dictate the actions that were required of the Secretary of State before removal could take place.

I am prepared to give permission to appeal on the grounds advanced by the applicant. I am conscious that this is a second appeal, although my approach to it is tempered to an extent by the fact that the Upper Tribunal approached things very differently from the way in which the First Tier Tribunal had approached them. It is also relevant, of course, that the consequence to the applicant of the decision is extremely severe if he were in fact to have to serve his sentence twice if deported.

The point of principle spelled out this morning by counsel on behalf of the applicant is as follows: what is the correct approach of the Tribunal or the Secretary of State when, as a result of unsuccessful extradition proceedings, a person has served time in the UK which will not automatically be taken into account in the receiving state under the extradition agreements? That is perhaps a very wide formulation of what was refined rather more in reliance on the Tarakhel decision and the duty of the sending country to seek assurances from the receiving country.

I raised in the course of argument whether it was a given that double punishment amounts to a breach Article 3. It was not entirely possible to get to the bottom of whether that had been accepted by the Secretary of State in the proceedings below, and I am therefore minded, as well as giving permission, to give a direction for the respondent to indicate whether she agrees that double punishment would constitute a breach of Article 3 and/or of Article 4 of the Seventh Protocol or not.