England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT

		Royal Courts of Justice Strand London WC2A 2LL
		15th June 2010

1. MR JUSTICE CRANSTON:

Introduction

Mr Dos Santos is an Angolan who has lived in the United Kingdom with his wife and children. In 1995 he claimed asylum here from Angola. The application is still outstanding. Subsequently he was arrested in 2009 under three European Arrest Warrants issued by the Portuguese judicial authorities. The District Judge discharged one of the warrants but has ordered his extradition under the second and third warrants. The issue which arises is whether Mr Dos Santos' extradition ought to continue while his asylum claim has not been determined. He raises this issue by means of an appeal from the decision of the District Judge and by a late application yesterday for judicial review of the District Judge's refusal to postpone the decision on extradition until the asylum claim is determined.

Background

2. Mr Dos Santos was born in 1960 and is, as I have said, an Angolan. In 1995 he applied for asylum and that claim was refused in May of 2000. There is apparently a reference in the correspondence to an amnesty which was available in Angola for UNITA members, UNITA being one of the political parties in Angola. That 2000 decision was subsequently withdrawn by the Secretary of State, who substituted a fresh decision in October 2003. That again refused Mr Dos Santos' claim for asylum.
3. In March 2010, the UK Border Agency wrote to the District Judge explaining that the decision of 2003 had been withdrawn and that the Agency was:

"... in a position to confirm that Mr Santos has an outstanding asylum application dated 22.12.1995.

His asylum claim will now be reconsidered and should this fall to be refused would attract a right of appeal."

4. Meanwhile, the European Arrest Warrants were issued and certified in April 2009. Mr Dos Santos' surrender was sought by the Sintra Court and by the Cascais Court, the second criminal chamber. The first warrant, which is an accusation warrant, was issued on 2nd April 2009 and seeks his extradition for trial for six offences arising from three armed robberies which took place in March, June and September of 2000. It was certified by the Serious Organised Crime Agency ("SOCA") on 22nd April 2009. The offences in the warrant are three offences of robbery and three of possession and use of a prohibited weapon. The second warrant is again an accusation warrant issued on 9th April 2009 and certified the same day. It relates to one offence of robbery alleged to have taken place on 25th October 2000.
5. In mid May of 2009, Mr Dos Santos was arrested pursuant to the first warrant and appeared before the Magistrates' Court at the City of Westminster. He was further arrested pursuant to the second warrant later that month. The matter was adjourned on various occasions but ultimately, on 9th March 2010, his extradition was ordered by District Judge Evans. In the course of his judgment, the District Judge noted that Mr Dos Santos claimed that he had appeared before the Portuguese court and had pleaded guilty to the Cascais offences. District Judge Evans said that there was no reason to doubt the correctness of the warrants. He then went on to outline the submissions which focused on the ongoing asylum claim in relation to Angola and to the submissions which Ms Powell made on his behalf that the court should either adjourn the proceedings pending resolution of the asylum claim or, if it did not, was precluded from ordering extradition to Portugal.
6. The District Judge noted that the submissions were based on the premise that the defendant had a ongoing outstanding asylum claim against Angola. The District Judge said that he was satisfied that Mr Dos Santos did have an outstanding ongoing asylum claim but that there was no requirement that the court should adjourn the extradition proceedings to await the decision since his extradition was sought by Portugal and not by Angola. The District Judge noted Mr Dos Santos' concern that, if surrendered to Portugal, he would face onward deportation to Angola once he had served his prison sentence there. The District Judge said that, if the United Kingdom granted asylum, that information could be supplied to Portugal, who would be expected to respect it and not to deport him to Angola. On the other hand, if his claim was unsuccessful and asylum was refused, then he might make a claim to Portugal, although it might well be that there would be difficulty in trying to convince it to entertain that claim.
7. Understandably District Judge Evans imagined that Portugal had experience and expertise in dealing with Angolans making asylum claims, given that Angola was formally a Portuguese colony. He referred to the UNHCR handbook and to Council Directive 2005/85/EC, which in his view were not relevant to the decision. In his view, Council of Europe Member States such as Portugal would fully respect Mr Dos Santos' asylum position when it was known at the end of any sentence of imprisonment. There was no basis for concluding that Portugal would not properly honour its obligations pursuant to the Refugee Convention were an asylum claim to be made to them.
8. On 15th March an appeal was filed in this court. Collins J considered interlocutory matters in mid April in relation to the appeal and suggested that it would be sensible for the Secretary of State to certify under section 40 of the Extradition Act 2003. No certificate has been issued by the Secretary of State under that section.

Legal principles

9. Section 39 of the Extradition Act 2003 ("the 2003 Act") applies if a person in respect of whom a Part 1 warrant is issued makes an asylum claim at any time in the relevant period. Subsection (2) of that section defines the relevant period as the period starting when a certificate is issued under section 2 of the Act in respect of the warrant and ending when the person is extradited in pursuance of the warrant. Section 39(3) reads that:

"The person must not be extradited in pursuance of the warrant before the asylum claim is finally determined..."

Section 39 goes on to provide that, if the Secretary of State allows the asylum claim, the claim is finally determined when he makes his decision on the claim. If she rejects the asylum claim, the claim is finally determined when appeal rights are exhausted.

10. The prohibition on extradition of persons under section 39(3) does not apply pursuant to the safe third country provisions of section 40 - if the Secretary of State certifies that the conditions in subsections (2) or (3) of that section are satisfied. The conditions in subsection (2) are that the category 1 territory to which the person's extradition has been ordered has accepted that it is the responsible state in relation to the person's asylum claim and in the opinion of the Secretary of State the person is not a national or citizen of that territory. The conditions in subsection (3) are that in the opinion of the Secretary of State a person is not a national or citizen of a category 1 territory to which his extradition has been ordered; the person's life and liberty will not be threatened in that territory by reason of his race, religion, nationality, political opinion or membership of a particular social group; and the government of the territory will not refoul the person to another country otherwise than in accordance with the Refugee Convention.
11. In District Court of Ostroleka v Dytlow [2009] EWHC 1009 (Admin), the Divisional Court held that a person who enjoys refugee status in the United Kingdom could not be extradited to his country of nationality as long as he remained a refugee. In that case, the District Judge had discharged two Polish nationals of Roma ethnicity who had claimed asylum in the United Kingdom on the basis that they were mistreated in Poland by reason of their being Roma. The United Kingdom had granted them refugee status and indefinite leave to remain. Some time after they had arrived in this country, the Polish judicial authorities had issued European Arrest Warrants in relation to certain robberies which they were said to have committed. The District Judge came to the decision that they ought to be discharged on the basis of Article 8 of the European Convention on Human Rights.
12. On appeal by the judicial authority it was contended before the Divisional Court that they should not be extradited because of their refugee status. Keene LJ, who gave the first judgment of the court, held that, since under section 39 of the Act a person could not be extradited to the territory of which he was a citizen while his asylum claim was pending, it was clearly implicit that if the asylum claim was eventually granted he could not be extradited (paragraph 11). At paragraph 26 Keene LJ said that in such cases where there were grounds for regarding someone's refugee status as being questionable the appropriate course may be to adjourn the extradition hearing so that the Secretary of State could make a final decision in relation to that status (paragraph 26). His Lordship went on to hold that there was a implied power to refuse extradition in the event of an abuse of process and that to order the extradition of a person who enjoyed the status of a refugee in the United Kingdom to his own country would constitute an abuse of status (paragraphs 30-31).
13. Prior to that decision a differently constituted Divisional Court, in Hilali v Secretary of State for the Home Department [2008] EWHC 905 (Admin), considered an application for judicial review of extradition to Spain by a claimant who came from Morocco. He had made an asylum claim in late 2003 and a second asylum application in July 2006. The basis of the judicial review was the failure of the Secretary of State to determine his asylum claim of 2003, which was on the basis that he had a well-founded fear of return to Morocco. In addition the judicial review challenged the Secretary of State's certification in relation to the 2006 asylum claim, that he had a well-founded fear of persecution in Spain or that Spain would refoul him to Morocco.
14. The matter came before the Divisional Court as one of great urgency. In the course of his judgment, Moses LJ considered the submissions on behalf of the claimant. They were that before he was extradited to Spain his outstanding claim for asylum should be determined, that he had a right pursuant to the Refugee Convention to have the benefit of that determination and that he was being deprived of that right by virtue of his extradition. It was also submitted on his behalf that, had he made an asylum application during the course of the extradition proceedings, as indeed he had when he made the second claim in July 2006, it would have been determined pursuant to sections 39 and 40 of the Extradition Act. Thus it was said on his behalf he should be no worse off when he made what on its face was likely to be a more genuine claim in 2003, prior to the issue of the European Arrest Warrant. He contended that the reason that there were specific provisions for the determination of an asylum claim during the course of what was described in the legislation as the relevant period was to prevent a claim being made which was designed to inhibit or prevent the pursuit of the extradition. There could be no suggestion of a fraudulent purpose behind the making of his claim prior to the issue of the European Arrest Warrant.
15. Moses LJ rejected these submissions in blunt terms. They were unarguable. The position was that the claimant was not worse off. It was not sought to return him to Morocco, still less to extradite him to that country. The proposal was to extradite him to Spain and he was no worse off than he would have been had he made an application that would be governed by the position under sections 39 and 40 since, had that claim been made earlier, the Secretary of State would have taken the same view about the return to Spain as opposed to return to Morocco. In the course of his judgment, Moses LJ also referred to what he saw as a lack of merits in the claim itself. There was no basis for mistrusting the reason behind the extradition proceedings or for thinking that, once the criminal proceedings were determined, Spain would not comply with its obligations pursuant to the Refugee Convention. There was no ground for saying that either Spain or the United Kingdom would not comply with international obligations.
16. A third authority is Ignaoua v Italy [2008] EWHC 2619 (Admin). That was an attempt to thwart extradition by Tunisians who were being held pending their return to Italy following the issue of European Arrest Warrants. They had been accused of membership of a criminal organisation for terrorist purposes. In the course of their appeals before the Divisional Court, which focused primarily on fresh evidence which had not previously been considered, it was submitted on their behalf that they should not be extradited since, in the case of one, refugee status had been accorded and, in the case of the other, there was an extant asylum claim. In giving judgment, Keene LJ said that this was a makeweight argument and that extradition to Italy could not interfere with any of their rights under the Refugee Convention. There was no risk that they would be refouled by Italy to Tunisia, which was where the risk of persecution was acknowledged to exist.
17. As far as the relevant principles applicable to the asylum aspect of the present claim is concerned, the UNHCR Handbook on Procedures and Criteria for Determining Refugee Status under the Refugee Convention provides in Part 2 that an applicant should be permitted to remain in a country pending a decision on his initial request for asylum unless it is established that the request was clearly abusive. He should also be permitted to remain in the country while an appeal to a higher administrative authority or to the courts is pending. In Ostroleka, Keene LJ at paragraph 21 had held that, although the UNHCR handbook was not itself a source of law, it was to be regarded as good evidence of international practice for the purpose of interpreting the Refugee Convention.
18. Council Directive 2005/85/EC of 1st December 2005, on the minimum standards on procedures in Member States for granting and withdrawing refugee status, refers in recital 13 to the desirability of a procedure in which an application for asylum normally has at least the right to stay pending a decision by the determining authority. That general provision is given effect in rules 328 and 329 of the Immigration Rules which provide that, until an asylum application has been determined by the Secretary of State, no action shall be taken to require the departure of the applicant or his dependents from the United Kingdom. The Procedures Directive contains basic procedural obligations of Member States when assessing asylum applications, including interviews and legal assistance, and in article 27 safe third country provisions. Those aspects of the directive are given effect to in our domestic law: Schedule 3 to the Asylum and Immigration (Treatment of Claimants, etc) Act 2004 and paragraphs 345(1), (2) and (2A) of the Immigration Rules.
19. Finally in terms of the legal principles engaged in this case, reference should be made to the role of judicial review in the context of decisions by district judges considering extradition to refuse to adjourn. In Olah v Czech Republic [2008] EWHC 2701 (Admin) Moses LJ said that in that case it was wrong of the judge to refuse an adjournment. Although, generally speaking, questions of adjournment were peculiarly for the tribunal, and the court would be careful about intervening, in the circumstances of that case the refusal of the District Judge to adjourn would be quashed.

Mr Dos Santos' submissions

20. In her innovative and cogent submissions, Ms Powell began with section 39 of the Act: if, in the relevant period, an asylum application is made, a person must not be extradited in pursuance of an European Arrest Warrant before it is finally determined, the concept of final determination being defined in section 40. The relevant period begins when a certificate is issued under section 2 of the 2003 Act and continues until the person is extradited. She submitted that, although section 39 only applies on a strict reading to a claim for asylum made after the European Arrest Warrant is issued, the 2003 Act could not, in terms of the background such as the UNHCR Handbook and the provisions of the Procedures Directive, have been intended to mean that a person who applies for asylum after his extradition is requested should benefit from the protection of section 39 to a greater extent than a person whose asylum application was submitted prior to the request for extradition being received by the United Kingdom. It is Ms Powell's contention that section 39 of the Act should be given a purposive interpretation and should be read in the light of the overarching duty to act in accordance with the claimant's rights under the principles of asylum law and until the claim for asylum has been determined.
21. To give the legislation the purposive import for which she contended, Ms Powell submitted that an asylum claim was "made" in the terms of section 39 if it was ongoing at any time after the section 2 certificate was issued. In those circumstances, section 39 was applicable to this extradition hearing. As a general rule, under section 39 a person could not be removed from the United Kingdom until an application for asylum has been determined unless a certificate has been issued under section 40. In her submission, the District Judge ought to have delayed his decision as to extradition until the claim for asylum was fully determined, or until a section 40 certificate was issued. No certificate was issued notwithstanding a considerable delay of matters before the Westminster Magistrates' Court during which the Secretary of State could have acted.
22. Alternatively, in her submission, the District Judge ought to have ordered that the execution of the extradition order should have been postponed until such time as either the asylum claim was fully determined or a section 40 certificate was issued. The District Judge, she contended, had exceeded his powers in the way that he had in effect applied the safe third country criteria under section 40 in his reasoning. Moreover, judicial review was justified because of the breaches of public law principles in the refusal of the District Judge to grant an adjournment. As a general principle, delay in extradition could well be justified by policy reasons in that in the intervening period there could be a change of circumstances in the requesting state or in the requested person's personal circumstances. Giving immediate effect to an extradition order could be contrary to a person's right to seek asylum and deprived him of the procedural rights and guarantees when a section 40 certificate was considered. The delay for which she contended would not sabotage speedy extradition, which she acknowledged as a policy imperative behind the European arrest warrant provisions. It was always possible for the Secretary of State to move quickly in relation to the grant of asylum or the issue of a section 40 certificate.

Conclusion

23. In my view, the District Judge was correct in the approach he adopted. There was no requirement to adjourn either the extradition proceedings and nor was there any public law fault in his approach. In this case, Mr Dos Santos has not been granted refugee status and therefore the decision in Dytlow is not directly applicable. There is no bar under that authority in relation to his extradition. In any event, that was a case where asylum had been granted vis-a-vis the requesting state and not, as in this case, where the asylum claim is vis-a-vis Angola, which is not the requesting state. In Ms Powell's submission the other authorities, Hilali and Ignaoua, were far from determinative. Ms Powell submitted, for example, that Hilali was defective in that the case had come on quickly and had been decided without the benefit of an extensive reference to authority. The passage in Ignaoua is obiter. In my view there is no reason for me to adopt the position that those authorities are plainly wrong. They are quite clear in their approach that in this type of situation an asylum claim which has not been determined should be no bar to extradition.
24. Apart from the authorities, however, it seems to me that the matter is to be determined on the very clear wording of the statutory language. Section 39 provides a particular protection to prevent an individual being extradited to a country if an asylum application is made at any time in the relevant period. That period starts when the certificate is issued and finishes when the extradition occurs. Notwithstanding Ms Powell's submissions about the word "made", it seems to me that in this context it has no transactional quality. It identifies a specific point in time when an asylum claim must be lodged. That is in the period after a certificate has been issued in respect of a warrant. If an asylum claim has been made prior to that point in time, in my view it has not been made within the relevant period. In this case, of course, Mr Dos Santos' outstanding application was made in 1995, well before the time when the certificate was issued. His outstanding claim cannot, on the clear language of section 39, be a bar to his extradition. In my view there is no requirement that these proceedings should be adjourned pending determination of the asylum claim.
25. As a matter of legal policy I cannot see any objection to this result. As the District Judge reasoned the asylum claim is against Angola, Mr Dos Santos' country of nationality, not against Portugal, the requesting state. If extradition takes place he will not be returned to Angola but to a country which has ratified both the Refugee Convention and the European Convention on Human Rights. There is high authority that we must also accord mutual trust and respect to Convention States and also to other Member States of the European Union as they implement the raft of European Union measures on asylum, of which Directive 2005/85/EC is only one.
26. On that basis, I dismiss the appeal and I refuse the application for permission to apply for judicial review as being unarguable. In any event, the judicial review was issued outside the three month period in the rules since the decision was made on 9th March 2010.

Any applications?

MS HOBCRAFT: Yes, my Lord. There is an application for assessment of legal aid costs.

MR JUSTICE CRANSTON: Yes, you can have that. Thank you very much.