It was reported in the media on Monday that the Home Secretary has directed that an Albanian national should be extradited to Italy under a European Arrest Warrant despite having lodged an asylum claim in the UK prior to his removal.
Ordinarily an individual cannot be extradited until the final determination of any asylum claim. This is guaranteed under the Extradition Act 2003 by section 39 in European Arrest Warrant cases and section 121 in all other cases. The protection is an essential bar for those who are being targeted with abusive criminal proceedings and for those at risk of persecution on return.
This is the first time that the Home Secretary has used her powers under section 40 of the Extradition Act to issue a certificate removing the usual bar to extradition under section 39.
Section 40 empowers the Home Secretary to issue a certificate in two circumstances. Firstly, where the individual is not a national of the requesting state and it has accepted that it is the responsible state to consider the individual’s asylum claim – for example where the claim is to be transferred under the EU Dublin Regulations. Secondly, and as apparently occurred in this case, where the individual is not a national of the requesting state and in the opinion of the Home Secretary, the person’s life and liberty would 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 requesting state would not send the person to another country otherwise than in accordance with the Refugee Convention.
The individual in question was facing extradition for offences including participating in an organised crime group and trafficking Albanian women into the EU. He was charged with murder in 2014 after he was involved in a fight in a Milan car park with Selim Lika, a fellow Albanian, who later died of multiple stab wounds. The pair are alleged to have argued over the profits of trafficking Albanian women. Having lost his extradition case at both first instance and on appeal an asylum claim was lodged earlier this year. The Home Secretary subsequently issued a certificate under section 40 thereby opening the door to his removal to Italy.
It is important to note that there is no comparable section under Part 2 of the Act and so this power only applies in European Arrest Warrant cases. Furthermore, a certificate can only be issued in cases where the individual is being sought for extradition by a country other than that of his or her nationality. That being said it is certainly a clear indicator of the hard line approach being taken by the Home Office.
Gherson has unparalleled experience in handling complex cases with a crossover between asylum and extradition law and should you wish to discuss this issue further please contact a member of our complex team.
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