The crossover between extradition and asylum is important to consider from the perspective both of an individual challenging an extradition request and of the state needing to comply with its international obligations under the Refugee Convention. This article examines the similarities and differences between these two jurisdictions, and how they play out in practice.
Two jurisdictions
Extradition is the transfer of a person from one state to another in order to stand trial or serve a sentence for criminal matters. Asylum is the grant of permission to remain in a country because a person cannot be returned to their home country due to a well-founded fear of persecution for a Convention reason (e.g. race, religion, political opinion). The overlap is obvious: what happens when a person's extradition is sought by their home country where they claim they will be persecuted?
The short answer is that a person cannot be extradited if they are granted asylum. But that does not mean asylum can always be used to thwart an extradition request. Firstly, there are a number of bars a person may raise to extradition that overlap with a fear of persecution, including human rights breaches. If these are made out, extradition will not be ordered in the first place. However, if extradition is ordered, the asylum tribunal may offer an alternative (and potentially more fertile) chance for proving the risks of return and securing status in the UK.
Benefits of asylum claim
Asylum proceedings offer two key advantages to an individual: confidentiality and anonymity. In extradition, the requesting state is one of the parties, whereas in asylum the respondent is the Home Secretary. Not only that, but the Home Secretary is prevented from disclosing to the requesting state that a person has even made an asylum claim, let alone its contents. Plus, anonymity orders and closed hearings are more readily available in asylum proceedings and so everything lends itself to a fuller and more frank examination of the potential risks posed in the requesting state.
This means the individual concerned, and also experts, are often more willing to give sensitive evidence about the true situation in the requesting state without fear of reprisals. A person can also rely upon their recent activity in the UK (their 'sur place' activity) as a potential motive for persecution, whereas bars to extradition tend to focus on the state's motivation at the time of issuing the extradition request. This different evidential basis is a reason for an asylum tribunal to deviate from the findings of an extradition court, and potentially to make a more favourable determination for the appellant.
Legal tests
Perhaps unsurprisingly, it is not all plain sailing when attempting to raise an asylum claim following an extradition order. One of the main difficulties is the meshing of the different tests that have grown up independently within their own legal spheres.
In extradition, a requesting state may be asked to prove they have a 'prima facie case' against the individual. The court applies an adapted Galbraith test borrowed from the criminal law: whether a jury properly directed could find them guilty. Whereas in asylum, a person may be grappling with art.1F of the Refugee Convention, which can exclude individuals from refugee protection if there are 'serious reasons for considering' they have committed a 'serious non-political crime'. Needless to say, these two tests do not necessarily sit neatly together. A damaging finding in the extradition court could result in exclusion from the Refugee Convention and undermine any asylum claim, although there is currently no authority on how the tests should be reconciled, leaving the issue still open for debate.
Conclusion
So there is not only potentially much to be gained for a person facing extradition in making an asylum claim, but also still much legal ground to cover in the area where these two jurisdictions overlap.
Mark Smith is a barrister specialising in extradition, international family and immigration matters. Mark has appeared in the Supreme Court and the Court of Appeal, as well as the High Court Family Division in relation to international family matters and the Administrative Court in extradition proceedings. He has particular expertise in cases involving cross-border issues and parallel proceedings across multiple jurisdictions. He is recognised within the Legal 500 for his work in international crime & extradition
