Introduction
On 11 June 2025, the Supreme Court handed down judgment in Andrysiewicz v Poland [2025] UKSC 23, providing definitive clarification on how UK Courts should address the prospect of early release in extradition cases.
Though one of the certified questions focussed on Polish early release provisions, the Supreme Court set out that the principles set out “can be read across to early release provisions in other requesting states” (§66).
The decision confirms that a restrictive approach should be applied to early release provisions in the Article 8 ECHR balancing exercise and will only tip the balance in rare cases.
Andrysiewicz is a clear shot across the bows for practitioners, and raises practical ethical issues for those appearing in such cases.
Key Points
- Article 8 challenges will only rarely succeed: The Court reaffirmed that Article 8 defences to extradition will only rarely succeed, and only where the impact on family life is exceptionally severe (§43)
- Restrictive approach to early release: Save in “rare cases”, only the bare possibility of early release under foreign law (such as the Polish Penal Code) should be considered, and it should be given little weight in the Article 8 proportionality assessment (§77–78).
- No speculation on merits: Courts should not generally attempt to predict the likelihood of early release or assess its merits, except where there is overwhelming and uncontested evidence on four specific matters (§80).
- ‘Rare cases’ exception: The exception applies only if there is agreed or uncontested evidence demonstrating an overwhelming probability of: (1) release upon application in the issuing country, (2) the timing of release, (3) probation period and conditions, and (4) that there would be no adverse impact on the offender or public from the lack of supervision as a result of discharge (§80)
- Case management: The Supreme Court encourages robust case management to ensure Article 8 arguments—especially those based on early release—are only advanced in appropriate, evidence-based cases (§81–82).
- Practical impact: Practitioners should review existing and future cases relying on early release arguments, as such arguments are now unlikely to succeed unless they clearly meet the ‘rare case’ criteria.
Factual background
Ewa Andrysiewicz was convicted in Poland in 2016 of fraud offences relating to events between 2007 and 2008, receiving a two-year prison sentence that was initially suspended for five years. After failing to comply with the suspension conditions, the sentence was activated in 2018. In September 2020, the Polish authorities issued an Arrest Warrant seeking her extradition to serve the sentence. Ms Andrysiewicz, who had been living in the UK since 2016, was arrested in London in January 2023 and opposed extradition on Article 8 ECHR grounds, relying in part on the possibility of early release from her sentence under Polish law.
Although she ultimately served the equivalent of her sentence while on remand and the extradition warrant was withdrawn, the Supreme Court proceeded to hear her appeal to resolve important legal questions about the relevance of early release provisions in Article 8 proportionality assessments.
Article 8 in extradition cases
The Court took great care to draw out passages from the key authorities on the treatment of Article 8 ECHR (§§31-43), and emphasising the high bar to be reached: the consequences of interference with Article 8 rights must be exceptionally serious before this can outweigh the importance of extradition.
The Court, in no uncertain terms, highlighted and criticised the regular deployment of Article 8 in extradition cases:
42…Contrary to Lord Brown’s prediction in Norris, the incidence of extradition cases in which article 8 is invoked has shown no sign of declining. On the contrary, it appears that it is continuing unabated. … It seems that an article 8 “defence” is raised almost as a matter of course in virtually every extradition case.
The judgment drew attention to the “deliberate” distinction drawn in in H(H) v Deputy Prosecutor of the Italian Republic, Genoa [2012] UKSC 25 between “private and family life” and “article 8 rights of the family” (§37).
The Court stressed that it is “most unlikely” that a challenge to extradition based on Article 8 will succeed based in a disproportionate interference with “private life”, and where family life is relied on, it will only be in cases of “exceptionally severe impact” that there will be any prospects of success.
Automatic vs Discretionary Early Release: Why It Matters
If a requested person might be released early from their prison sentence following extradition, should this affect the proportionality assessment under Article 8? And if so, to what extent should English courts attempt to predict the likelihood of such release?
These questions produced what the Supreme Court described as "divergent and inconsistent approaches" on appeal, creating an unsatisfactory patchwork of conflicting authorities (§1).
The difference between “automatic” and “discretionary” release is an important one. The latter makes it difficult for the UK Court to predict when and if release will occur. Even the former, however, is not a “get out of jail free” card.
Automatic release
In an “extreme case”, where early release operates “automatically so that early release can be precisely calculated and predicted” that “might possibly” outweigh public interest where there is a combination of other “exceptionally compelling” features. Set against that, the court in the requesting state will be “deprived of the opportunity to impose appropriate licence conditions” which must equally count in the executing court’s analysis (§45).
Discretionary release and the “three options”
Some cases will involve judgment or discretion in the requesting state. Swift J, whose decision was under appeal, identified three possible approaches the court might take, each of which was examined by the Supreme Court.
The Supreme Court, like a proverbial Goldilocks, tested all three.
Option One: “Too cold”. Rigidly disregarding the existence of foreign early release laws as they are a matter for the requesting state, and no weight should attach to the possibility of release on licence.
The Supreme Court acknowledged "considerable merit” in this approach, due to its consistency with international comity principles, and that it did not “effectively usurp” the decision of the requesting state’s authorities (§70). However, they ultimately rejected this approach as it was "unrealistic not to recognise the existence of article 77 of the Polish Penal Code" which would provide a mechanism for release (§70).
Option Three: “Too hot”. Actively assess the likely merits of early release applications and attach significant weight to positive assessments in the proportionality exercise; the approach taken by Fordham J in Dobrowolski v District Court in Bydgoszcz [2023] EWHC 763 (Admin).
The Supreme Court found that it was contradictory for courts to: (a) accept that early release decisions belong to Polish courts; (b) evaluate the merits of applications to those courts; and (c) prevent Polish courts from making decisions by refusing extradition based on that evaluation (§72). This approach also breached international comity, by usurping the role of the Polish Court (§74). Such an approach failed to take into account the fact that the “pros” in favour of extradition (the ability to impose licence or probation conditions) would outweigh the “cons” in favour of discharge (the likelihood of early release); §75.
Option Two: “Just right”. A tempered middle ground; acknowledging the reality of early release provisions but avoiding overreach.
The Supreme Court endorsed the approach of acknowledging the existence of early release provisions but attaching only ‘little weight’ to them in the Article 8 assessment. As the Court explained, ‘it is unrealistic not to recognise the existence of article 77 of the Polish Penal Code’ (§70), but, save in ‘rare cases,’ UK courts should not attempt to predict the likelihood of early release (§77). The “bare possibility” (or, dare one say, bear possibility…) of early release adds little weight to the Article 8 proportionality exercise (§78).
Moreover, this is offset by the fact that refusing extradition would deprive the requesting state of the opportunity to impose licence conditions or probation, a factor which will generally outweigh any speculative benefit to the requested person
The ‘Rare Cases’ Exception: A High Bar
Having tasted and settled on the correct temperature of early release porridge, the Court turned to “rare cases”.
The Supreme Court defined a “rare case” as one where there is agreed or uncontested evidence demonstrating an “overwhelming probability” of all four of the following (§80):
- That the requested person would be released upon application under the relevant legal provisions;
- When that release would take place;
- The specific probation period and conditions that would apply
- That the English court’s inability to impose or supervise such conditions would not adversely affect either the offender or the public.
Practical Implications for Practitioners
The Supreme Court criticised the routine use of Article 8 in extradition cases, noting that such challenges should now be rare and subject to stricter scrutiny (§81).
While the Court called for “robust case management” to ensure Article 8 is only raised in appropriate cases, it offered no detailed guidance on implementation. It is unclear how the “appreciation by the legal aid authorities” is to be put into practice. The idea that the Legal Aid Authority should be reaching a determination at the early stage of a cases is one which will doubtless be concerning to practitioners.
In practice, this will require practitioners to obtain clear instructions early and to develop cases swiftly to determine if the threshold for “exceptional interference” is met. Private life (rather than family life) claims will be harder to run and require frank advice to clients.
As to early release provisions, the clear direction at (§82) is that the Court should not be spending time and resources anticipating the outcome in the issuing judicial authority of applications for early release save in exceptional circumstances.
UK courts will now likely place additional emphasis on the weight to be attached to probation/licensing supervision after release, and the consequential removal of the right of states to apply such measures.
Practitioners will need to ask themselves: 1) does this meet the ‘rare cases’ test? 2) If so, taking the case “at its highest” will the additional weight to be attributed to the possibility of early release, together with other factors, outweigh public interest? If not, then salvation is not to be found there (§82).
Ultimately, determining whether a case is truly exceptional remains a matter of judgment, even for experienced lawyers and judges. As they say: two lawyers, three opinions.
Conclusion
Andrysiewicz represents a significant victory for requesting states and a corresponding setback for requested persons. The decision will make it much harder to run successful Article 8 challenges based on speculation about early release.
Practitioners would be well-advised to review any existing cases where early release arguments feature prominently. Unless they fall within the Supreme Court's narrow definition of "rare cases" - and few will - such arguments are now likely to carry minimal weight.
The decision reflects the Supreme Court's clear view that the extradition process has become too tolerant of speculative challenges that serve mainly to delay rather than to identify genuine cases of disproportionate interference with human rights.
For practitioners, the message is clear: Article 8 challenges must be exceptional to succeed, and speculation about early release is not a reliable path to exceptionality.