Extradition Proceedings and the Role of Article 8 Rights

Article 8 is often in the news in the context of immigration law and there have recently been calls from politicians and others to limit its use. It is sometimes claimed that Article 8 is misused by lawyers and judges and that in its current form it enables foreign criminals and illegal migrants to abuse the system.

To be clear, immigration and extradition are different things. If you are threatened with deportation, you need an immigration lawyer. Deportation proceedings come about when this country decides for one reason or another that it wants you to leave.

Extradition proceedings, on the other hand, are not instigated by this country. Extradition requests to this country are made by other countries who want a person returned to them, either because they are accused of a crime, or because they have been convicted of a crime, and have a sentence of imprisonment to serve.

If you are sought in extradition proceedings, then you need an extradition lawyer. Hodge Jones & Allen have a team of specialist extradition lawyers who can advise you on your rights from the outset.

What are Article 8 rights?

We all have the right to respect for our private and family lives, no matter who we are, where we live and how we chose to live our lives. This idea is expressed in the first part of Article 8, which says:

(1) Everyone has the right to respect for his private and family life, his home and his correspondence.

People sometimes forget that there is a second part to Article 8. The second part says:

(2) There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

In other words, there are times when it is acceptable to interfere with private and family lives. These instances are limited to specific purposes, and the interference must always be in accordance with the law and necessary. An important principle which is not set out in the definition of the right, but which is key to its operation, is that any interference must be proportionate.

How can Article 8 rights prevent extradition?

The question the court must decide is whether extradition would be a proportionate or disproportionate interference with private and family life rights. This means the court must embark on a balancing exercise and weigh up the factors in favour of extradition, on the one hand, and against extradition, on the other.

Factors against extradition typically include the impact extradition would have on family members, particularly children. Extradition may be disproportionate when it would cause severe harm to the interests of young children. It may also be considered disproportionate when the offence was committed many years ago, and/of the offence was not particularly serious.

Extradition successes

At HJA, we are specialists in extradition and have won many cases by persuading the court that extradition would be a disproportionate interference with our clients’ private and/or family life rights.

Just last week, we persuaded the court not to order the extradition of a woman who is the sole carer of a son with Down Syndrome. The court also took into account the fact that the offences for which she was sought were committed over 20 years ago.

Recently we also prevented extradition in the following cases:

• A woman sought by Italy to serve a prison sentence of 4 years for international drug smuggling. She had been convicted in her absence and maintained her innocence. The judge found that extradition would be a disproportionate interference with the family life of the Requested Person and her young daughter.
• A single man sought by Poland to serve a prison sentence of 1 year for drink driving. The court found that his extradition would be a disproportionate interference with his private life, since he had previously been extradited and Poland had failed to deal then with this offence which pre-dated that earlier extradition.
• A woman sought by Latvia for the supply of class A drugs. The judge found that extradition would be a disproportionate interference with the family life of the Requested Person and her three young children, for whom she was the sole carer.

If you or someone you know is facing extradition proceedings, please get in touch so that we can advise you at an early stage on whether you can rely on Article 8 rights in your case and greatly increase your prospects of success. Call 0330 822 3451 or request a callback.