Factual and Procedural Background
The Plaintiff seeks permission to apply for judicial review of the Defendant National Crime Agency's (NCA) action in seeking to extradite him to Spain. The Plaintiff's appeal against an extradition order was dismissed by the Divisional Court on 25 November 2016, and a subsequent application for certification to the Supreme Court was refused on 9 February 2017. The NCA was required by the Extradition Act 2003 to remove the Plaintiff within ten days after 9 February 2017. The Plaintiff contended that an outstanding asylum appeal barred his removal under section 39 of the Act. The Secretary of State for the Home Department (SSHD) denied the existence of any such asylum claim, and the NCA planned removal on 16 February 2017. The Plaintiff sought injunctive relief to prevent removal, which was initially granted and subsequently continued pending a full hearing on 24 March 2017.
The Plaintiff has a complex history involving multiple extradition warrants issued by Spain, which relate to serious offences including terrorism and murder committed in Spain as a member of a separatist group. He was convicted and sentenced to a lengthy prison term, subject to changes in Spanish sentencing laws and judicial doctrines, notably the "Parot doctrine". The Plaintiff fled Spain and arrived in the UK by June 2012, where he was arrested pursuant to a European Arrest Warrant (EAW).
Multiple extradition proceedings and appeals have taken place, involving considerations of human rights under the European Convention on Human Rights (ECHR), the Refugee Convention, and allegations of judicial engineering in Spain. The Plaintiff has also faced deportation proceedings in the UK, with appeals against deportation raising human rights and Refugee Convention grounds. However, the SSHD has maintained that the Plaintiff has not made a formal asylum claim, and that the appeal grounds do not constitute such a claim for the purposes of section 39 of the Extradition Act 2003.
Legal Issues Presented
- Whether the Plaintiff made an asylum claim on 27 November 2013, based on the letter relied upon for that purpose.
- Whether section 39 of the Extradition Act 2003 applies to prevent the Plaintiff’s removal, considering any asylum claim and related human rights issues raised in extradition appeals.
Arguments of the Parties
Appellant's Arguments
- The Plaintiff argued that the letter dated 27 November 2013 constituted an asylum claim under the relevant statutory provisions.
- He contended that his removal was barred by section 39 of the Extradition Act 2003 due to an outstanding asylum appeal.
- The Plaintiff relied on human rights grounds including breaches of Articles 5 and 6 ECHR and the Refugee Convention, asserting a real risk of persecution and unfair trial if extradited.
- He challenged the refusal of his asylum claim and the procedural handling of his appeals, including submissions that the deportation order undermined prior extradition proceedings.
Respondent's Arguments
- The Defendant SSHD and NCA maintained that no formal asylum claim had been made by the Plaintiff.
- They argued that the letter of 27 November 2013 did not constitute an asylum claim as defined in the Nationality, Immigration and Asylum Act 2002 (NIAA 2002) and the Extradition Act 2003.
- The SSHD asserted that the Plaintiff had not attended the designated place to make an asylum claim, nor had he submitted any detailed claim beyond the letter.
- It was submitted that the Plaintiff’s human rights and Refugee Convention arguments had been fully considered and rejected in extradition proceedings and deportation appeals.
- The Defendant contended that any dispute over the existence of an asylum claim should be resolved by judicial review, not by the First-tier Tribunal (FtT) or Upper Tribunal Immigration and Asylum Chamber (UTIAC).
- The Defendant also argued that the Plaintiff’s challenge was out of time and amounted to a collateral attack on the earlier decision not to treat the letter as an asylum claim.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| Del Rio Prado v Spain (2014) 58 EHRR 37 |
Retrospective application of the "Parot doctrine" breaches Articles 5 and 7 ECHR |
Referenced to explain the Plaintiff's status as a refugee until the doctrine was revoked and the human rights context of the extradition proceedings. |
| R (Ullah) v SSHD [2004] 2 AC 329 |
Test for flagrant breach in expulsion cases involving ECHR rights |
Used to contrast the test applicable in expulsion to third countries with that applicable within EU member states. |
| R (Nirula) v FtT [2012] EWCA Civ 1436 |
Asylum claim cannot be made in Notice of Appeal after 2005 |
Applied to distinguish and reject the argument that the letter of 27 November 2013 was an asylum claim. |
| Jisha v SSHD [2010] EWHC 2043 (Admin) |
One Stop Notice response can constitute a human rights claim made to the SSHD |
Discussed but distinguished; court held that the letter at issue was not an asylum claim despite being a One Stop Notice response. |
| R (B) v SSHD [2014] EWCA Civ 854 |
Asylum claims by EU nationals can be declared inadmissible in absence of exceptional circumstances |
Referenced to illustrate the difficulty for EU nationals in establishing asylum claims within the EU context. |
Court's Reasoning and Analysis
The court undertook a detailed statutory and factual analysis to determine whether the letter dated 27 November 2013 constituted an asylum claim under section 39 of the Extradition Act 2003 and the definition in section 113(1) of the NIAA 2002. The court emphasized that an asylum claim must be a claim made to the Secretary of State, indicating that removal would breach obligations under the Refugee Convention. Although the letter was sent to the Government Legal Department, the court accepted this as a claim made to the SSHD for the purposes of the analysis.
However, the court found that the letter did not amount to an asylum claim. It was brief, interim, and explicitly framed as a sketch of the Plaintiff’s intended appeal to the Tribunal rather than a formal asylum claim. The letter did not expressly or implicitly constitute a claim for asylum; it merely indicated that such a claim might be made in future proceedings. The court noted the absence of any subsequent formal asylum claim, including failure to attend the designated place for asylum submissions or to provide further detailed representations.
The court also considered the procedural history, including the SSHD’s clear rejection of the letter as an asylum claim and the Plaintiff’s failure to challenge that rejection in a timely judicial review. The Plaintiff’s delay and inconsistent approach further undermined the assertion that the letter was an asylum claim. The court rejected the argument that the appeal process before the FtT or UTIAC could substitute for a formal asylum claim, noting that neither tribunal made a definitive finding that an asylum claim had been made.
Regarding the application of section 39 of the Extradition Act 2003, the court observed that the provision bars extradition if an asylum claim has been made and remains undetermined. Since no asylum claim was made, section 39 did not apply to bar the Plaintiff’s removal. The court further emphasized the importance of clarity and finality in extradition and asylum proceedings to avoid ambiguity and delay.
The court expressed concern at submissions suggesting that there was no flagrancy threshold in EU human rights cases, reaffirming the established jurisprudence that a real risk of a flagrant breach is required to resist removal on human rights grounds within the EU context.
Holding and Implications
The court REFUSED permission to apply for judicial review on the basis that the letter of 27 November 2013 did not constitute an asylum claim under the relevant statutory framework. Consequently, the interim injunction preventing the Plaintiff’s removal was discharged, and the NCA was permitted to proceed with extradition arrangements.
The direct effect of this decision is that the Plaintiff’s removal to Spain is not barred by section 39 of the Extradition Act 2003 due to any outstanding asylum claim. No new legal precedent was established beyond the application and clarification of existing statutory definitions and procedural requirements concerning asylum claims in the context of extradition.