Asylum Claims Rarely Justify Adjournment of Extradition Appeals: Section 39(3) Stays Removal Without Staying the Appeal

Introduction

This decision of the Appeal Court, High Court of Justiciary ([2026] HCJAC 1) concerns an appeal under section 26 of the Extradition Act 2003 by Ghorghe Marcoci (a Romanian national) against an extradition order made at Edinburgh Sheriff Court on 21 March 2025. The respondent was the Lord Advocate, representing the Romanian Judicial Authority.

Romania sought the appellant’s surrender under two European Arrest Warrants issued by judges of Arad District Court (15 June 2018 and 9 May 2022) to enforce two custodial sentences for tax offences: (i) a sentence increased on appeal from 3 to 8 years (final on 14 May 2018), and (ii) a 2-year sentence (final on 16 February 2021).

The appeal raised three issues: (1) whether extradition proceedings should be adjourned pending determination of a late asylum claim; (2) whether extradition would be incompatible with Articles 5 and 6 ECHR (liberty and fair trial), on the basis that the prosecutions were allegedly politically motivated and the Romanian system could not guarantee Convention compliance; and (3) whether “new information” (ongoing Romanian extraordinary remedies—revision and annulment) should alter the outcome. The court also addressed (and rejected) an Article 8 ECHR point as lacking any exceptional features.

Summary of the Judgment

The court refused the motion to adjourn the extradition appeal pending determination of the asylum claim, holding that section 39(3) of the 2003 Act prevents removal while an asylum claim remains outstanding, but does not ordinarily justify delaying the appeal itself. The asylum claim was made “very late in the day”.

On the merits, the court found no material error in the sheriff’s approach to Articles 5 and 6 ECHR. The appellant failed to meet the high threshold required to show a real risk of a “flagrant” denial of the relevant rights.

As to the “new information”, the court accepted that Romanian proceedings for revision and annulment were ongoing, but held that these did not suspend the sentences; the warrants remained valid and enforceable; and pending extraordinary remedies are not a statutory bar to extradition. The additional material did not satisfy the conditions for allowing an appeal under section 27(4) of the 2003 Act.

The appeal was refused and the extradition order stood.

Analysis

Precedents Cited

1) Janovic v Lithuania [2011] EWHC 710 (Admin)

The sheriff and the Appeal Court relied on Janovic v Lithuania [2011] EWHC 710 (Admin) for two central propositions reflected throughout extradition jurisprudence:

Burden/onus: the requested person bears a heavy evidential burden to show that extradition would breach Convention rights. The judgment notes the sheriff’s reliance on this in concluding the appellant had not shown unfairness.
Quality of unfairness required: the test is not satisfied by “mere irregularities”; it targets serious injustice consistent with the “flagrant denial” formulation (also anchored in R(Ullah)).

2) Van der Kramer v Belgium [2013] EWHC 560 (Admin)

The court treated Van der Kramer v Belgium [2013] EWHC 560 (Admin) as supporting the “well-established presumption” that ECHR signatory states have adequate safeguards for fair trial. That presumption does not immunise requesting states from challenge, but it frames the required evidential quality: generic allegations and unparticularised distrust of a foreign system will not suffice.

3) R(Ullah) v Special Adjudicator [2004] UKHL 26; [2004] 2 AC 323

The respondent relied on R(Ullah) v Special Adjudicator [2004] UKHL 26; [2004] 2 AC 323 for the controlling standard: extradition will be incompatible with Articles 5 and 6 only where there are substantial grounds for believing in a real risk of a flagrant denial of the right in question. The Appeal Court applied that standard to conclude the appellant’s case fell far short.

4) Kozlowski v District Court of Torun, Poland [2012] EWHC 1706 (Admin) and R (Troitino) v National Crime Agency & Others [2017] EWHC 931 (Admin)

On the adjournment request linked to an asylum claim, the court expressly agreed with the observations of Ousely J in Kozlowski v District Court of Torun, Poland [2012] EWHC 1706 (Admin) (paragraphs 7–22) and R (Troitino) v National Crime Agency & Others [2017] EWHC 931 (Admin) (paragraphs 56–57). The Appeal Court adopted the policy-laden point that extradition proceedings should be expeditious and courts should be alert to delaying tactics; section 39(3) already protects against removal while asylum is undecided.

5) Popoviciu v Romania [2023] UKSC 39, [2023] 1 WLR 4256

The appellant invoked Popoviciu v Romania [2023] UKSC 39, [2023] 1 WLR 4256 as evidence of systemic Romanian non-compliance. The Appeal Court distinguished it sharply: Popoviciu involved extensive evidence of alleged judicial corruption by a named judge, and the Supreme Court proceedings focused on fresh evidence and the arguability of an effective Romanian remedy. It did not stand for a general proposition that Romanian proceedings are Convention-incompatible. The court used this to underscore a recurring extradition theme: fact-sensitive risk assessment, not country-wide condemnation by citation.

6) Dragos Savulescu v Romania Court of Appeal of Naples and Sorin Oprescu v Romania Court of Appeal in Thessaloniki

These were cited by the appellant as other European examples of resistance to Romanian requests. The Appeal Court gave them little weight because no analogy to the appellant’s circumstances was articulated, illustrating that comparative citations without evidential and factual linkage rarely advance an Article 5/6 case.

Legal Reasoning

A. Asylum claim and adjournment: section 39(3) as a “stay of removal”, not a “stay of the appeal”

The court’s key move was to separate (i) the ability of the court to determine the extradition appeal from (ii) the practical act of removal. It held that section 39(3) prevents removal until the asylum claim is finally determined, so the appellant is protected against surrender in the meantime. Accordingly, an adjournment of the appeal is ordinarily unnecessary—and “will rarely be appropriate”.

The court also treated timing as important: the asylum claim was made seven years after UK arrival and more than three months after the sheriff’s decision. In context—where the case had called more than 20 times before evidence—the court viewed the application as strongly suggestive of delay.

B. Articles 5 and 6 ECHR: the “flagrant denial” threshold and evidential insufficiency

The court reaffirmed the high hurdle for resisting extradition on Articles 5 and 6. The question was whether the evidence demonstrated a real risk of a flagrant denial of the rights (not merely arguable unfairness).

The sheriff’s factual findings were pivotal:

The appellant’s claim of politically motivated prosecution was unpersuasive and poorly corroborated. The only corroboration was of a single SRI visit; the sheriff found no nexus between that visit and the trial outcomes.
Procedural safeguards were present: advance notice of charges, legal representation in both matters (including appeal), ability to lead evidence and challenge the prosecution, professional judges, and representation even in absence in the 2020 proceedings.

The Appeal Court held that no material error was shown in the sheriff’s analysis and that the credibility assessment was one he was entitled to make. The case therefore failed under section 27(3) of the 2003 Act (the sheriff did not “ought to have decided” the Convention question differently).

C. “New information”: pending extraordinary remedies in Romania and section 27(4)

The appellant’s “new information” was that (i) a request for revision (8-year sentence) had been dismissed as inadmissible, with an appeal pending and a hearing assigned; and (ii) an appeal for annulment (2-year sentence) had been lodged with a hearing assigned. The court accepted the factual existence of these proceedings, but treated their legal significance as limited:

They were extraordinary remedies, available only on limited grounds, and were initiated after the extradition process was underway and after ordinary appeals were exhausted.
Critically, Romanian judicial authorities confirmed that neither process suspended enforcement; the sentences remained outstanding; and the warrants remained valid and enforceable.
Pending appeals (especially extraordinary ones) are not a statutory bar to extradition: the court noted section 11 of the 2003 Act lists the bars and does not include this situation.

Applying section 27(4), the court concluded the further details would not have resulted in the sheriff deciding the extradition question differently. The appellant also offered no concrete basis for thinking the Romanian proceedings would themselves be conducted unfairly.

D. Article 8 ECHR: “ordinary hardship” is insufficient

Although not a primary ground, the court recorded and rejected reliance on Article 8. The appellant’s seven years in the UK and a “new life and a new family” were not shown to involve features beyond the typical hardship of extradition. The strong public interest in extradition arrangements and prevention of crime justified any interference under Article 8(2).

Impact

Procedural discipline in Scottish extradition appeals: the decision signals a robust approach to case management where asylum claims are introduced late. Section 39(3) is treated as a sufficient protection against immediate surrender, supporting continued expedition of appeals.
Clarification of the evidential burden for Romania-focused challenges: the court resists any slide from fact-specific cases (such as Popoviciu) into generalized claims of Romanian Convention noncompliance. Parties must articulate a concrete, evidenced pathway from alleged deficiencies to a real risk of “flagrant denial” in the individual case.
Pending foreign remedies not readily weaponised to delay extradition: where foreign proceedings do not suspend enforceability and are not statutory bars, they will rarely meet section 27(4)’s materiality threshold.
Reinforcement of deference to requesting-state process: absent specific proof of unfairness, remand time and procedural timetabling are treated as matters for the requesting judicial authorities.

Complex Concepts Simplified

European Arrest Warrant (EAW): a (then-operative) mechanism by which one European jurisdiction requests another to arrest and surrender a person to serve a sentence or face prosecution. Here, the EAWs sought surrender to serve sentences already imposed.
Articles 5 and 6 ECHR: Article 5 protects against unlawful deprivation of liberty; Article 6 protects the right to a fair trial. In extradition, courts ask whether surrender would expose the person to a flagrant (exceptionally serious) denial of these rights.
“Flagrant denial”: a very high threshold—something fundamentally unfair, not just procedural imperfections. This is why generic criticisms and isolated concerns typically fail.
Extraordinary remedies (revision and annulment): exceptional post-final avenues in Romanian procedure (as described in Articles 453 and 426 of the Romanian Code of Criminal Procedure), available only on narrow grounds, distinct from ordinary appeals.
Section 27(3) vs section 27(4) (Extradition Act 2003): section 27(3) focuses on whether the judge at first instance should have decided the issue differently on the material then available; section 27(4) is about genuinely new issues/evidence that would have made a difference.
Section 39(3) (as applied here): operates as a practical bar on removal while an asylum claim is undecided, but does not automatically halt the court’s determination of the extradition appeal.

Conclusion

[2026] HCJAC 1 establishes a clear managerial and doctrinal message in Scottish extradition practice: an outstanding asylum claim—particularly a late one—will rarely justify adjourning an extradition appeal because section 39(3) already prevents removal pending asylum determination. The judgment also reinforces the stringent “flagrant denial” standard for Articles 5 and 6 challenges, the need for case-specific evidence (not generalized country allegations), and the limited relevance of pending extraordinary foreign remedies where sentences remain enforceable and no statutory bar is engaged.