Andrysiewicz (Appellant) v Circuit Court in Lodz, Poland (Respondent) – UK Supreme Court Decision

What happened in Andrysiewicz

Ewa Andrysiewicz, a Polish national, was convicted in Poland in 2016 of fraud offences. The sentence was initially suspended but later activated following breaches of the suspension conditions. In 2020, Poland issued a warrant for her extradition to serve the full two-year sentence. By that time, Ms Andrysiewicz had been living in the UK since 2016.

She opposed extradition under Article 8 ECHR (right to respect for private and family life), arguing that extradition would be disproportionate in her case, particularly given that Polish law provided for the possibility of early release on licence.

The lower UK courts rejected her defence arguments and ordered her extradition. On appeal, however, the High Court certified two points of law of general public importance: (i) how much weight should be given to the possibility of early release under the requesting state’s law, and (ii) whether the UK courts should assess the likely merits of such an application.

By the time the UK Supreme Court heard the case, Ms Andrysiewicz had served the equivalent of the imposed sentence in custody pending extradition, the Polish warrant had been withdrawn and extradition was discharged. Nevertheless, the UK Supreme Court proceeded to hear the case to provide clarity on the application of Article 8 ECHR in the extradition context.

What the UK Supreme Court decided

In Andrysiewicz, the UK Supreme Court rejected the approach set out by Fordham J in Dobrowolski v District Court in Bydgoszcz [2023] EWHC 763 (Admin); [2023] ACD 67, in which Fordham J accepted that he should have regard to the reality, which was that there were good prospects that an application for early release would succeed. Instead, the UK Supreme Court sided with Swift J’s interpretation in Andrysiewicz (High Court), in which he identified three possible routes for the court to follow:

(i) any application for early release is solely a matter for the Polish courts, to which the judge can attach no weight in the Article 8 ECHR assessment (“option one”);

(ii) the judge can acknowledge the existence of a power to release on licence but attribute little weight to it in the Article 8 ECHR assessment, except in rare cases (“option two”); or

(iii) the judge can assess the likely merits of an application for early release, applying the Polish criteria, and attach significant weight in the Article 8 ECHR assessment to any “good prospects” or “real possibility” of success (“option three”).

Swift J was of the view that the court could go no further than option two.

The guidance from the UK Supreme Court is, therefore, that courts should not try to predict whether an early release application would succeed, or precisely when release might occur, except in cases with overwhelmingly convincing and uncontested evidence, including: (i) that the person would be released under those provisions; (ii) the exact timing of that release; (iii) the conditions / probation / licence under which the release would occur; and (iv) that there would be no adverse public interest or risk due to the limits of licence supervision in the requesting state.

Only when all those evidential criteria are met, is it legitimate for the possibility of early release to carry more than little weight, and even then only in cases with very strong claims of severe interference with Article 8 rights.

At present, the UK Supreme Court’s position is that Article 8 ECHR defences in extradition require severe, exceptional situations: the impact on private or family life must be “exceptionally severe” before it can defeat the strong public interest in extradition.

How Gherson can help

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