Chapter 11
Extradition and refugee proceedings

The need for separate proceedings

11.33Throughout this Report, we have made it plain that one of our goals in reforming the Extradition Act 1999 is to limit double decision making and avenues for needless delay wherever possible. This raises the issue of whether extradition and refugee proceedings should continue to run in parallel or whether one proceeding should take precedence over the other.

11.34In Canada, the extradition proceeding takes precedence. If an asylum seeker becomes the subject of an extradition order for a non-political crime that is punishable by at least 10 years’ imprisonment, then the person is automatically excluded from protection under the Refugee Convention.365 We do not recommend this option, as we consider that it over-simplifies the relevant considerations.
11.35In the United Kingdom, the refugee proceeding must be determined first. Under the Extradition Act 2003 (UK), the Secretary of State will refuse to certify an extradition request (certification commences an extradition proceeding) if the person sought has already been recognised as a refugee in respect of the requesting country.366 The Act also states that no extradition order may be made for a person whose refugee claim is outstanding.367 The case law indicates that if a refugee claim is made, the extradition proceeding will ordinarily be adjourned pending a decision on the claim and the court will not make an extradition order if the person is given refugee status.368

11.36The benefit of this approach is that the sequence of the proceedings, and the impact of one on the other, is relatively clear. However, halting the extradition proceeding leaves little scope for information gathered through the extradition process to inform the refugee proceeding. As we explain below, we consider this cross-fertilisation is needed.

11.37As a starting point we prefer the model outlined by the United Nations High Commissioner for Refugees (UNHCR) in its 2008 Guidance Note on Extradition and International Refugee Protection.369
11.38The UNHCR recommends that extradition and refugee procedures should be kept separate, but may be run in parallel. We agree with the following reasoning in the Guidance Note:370

Extradition and refugee status determinations are distinct procedures, which have different purposes and are governed by different legal criteria. Decision-makers in either area must have specific sets of knowledge, expertise and skills. Where the determination on whether or not the wanted person has a well found fear of persecution is incorporated into the extradition procedure, this may significantly reduce an asylum-seekers opportunity to have his or her claim examined. It may also entail a limitation of legal remedies available in case of a negative status determination. It is the UNHCR’s position, therefore, that the decision on the asylum claim and on the extradition request, respectively, should be made in separate procedures.

This does not mean that the two processes should be conducted in isolation. As seen throughout this Guidance Note, whether or not the wanted person qualifies for refugee status has important consequences for the scope of the requested State’s obligations under international law with respect to the wanted person, and hence for the decision on the extradition request. At the same time, information related to the extradition request may have an impact on the determination of the asylum claim. In order to reach a proper decision in both the asylum and the extradition procedure, the responsible authorities need to consider all relevant elements.

365Immigration and Refugee Protection Act SC 2001 c 27, s 105(3).
366Extradition Act 2003 (UK), s 70(2). The provision uses the word “may” but case law has demonstrated that the Secretary of State does not have any real discretion. In such a case, the Secretary of State must refuse the request. See District Court in Ostroleka, Second Criminal Division (a Polish Judicial authority) v Dytlow [2009] EWHC 1009 (Admin) at [13].
367Extradition Act 2003 (UK), s 121.
368District Court in Ostroleka, Second Criminal Division (a Polish Judicial authority) v Dytlow, above n 366; and Konuksever v The Government of Turkey [2012] EWHC 2166 (Admin) at [61].
369United Nations High Commissioner for Refugees Guidance Note on Extradition and International Refugee Protection (April 2008).
370At [61] and [62].