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The extradition relationship between the UK and India: Changing Dynamics?

Posted by: Gherson Extradition

The UK and India signed an extradition treaty on 22 September 1992, which was ratified on 15 November 1993.

However, significant barriers to extradition have arisen since its inception, meaning that only two individuals wanted in connection with criminal charges in India have been returned to India to date.

What is the current extradition arrangement?

As a category 2 territory for the purposes of the Extradition Act 2003 (“EA 2003”), extradition to India requires the Requesting State to establish both a prima facie case of dual criminality, on the basis of evidence that would be deemed admissible in a English Court, and overcome any bars to extradition.

Chief among these bars to extradition has been the Court’s obligation to ensure that extradition would be compatible with the rights of an individual under the European Convention on Human Rights, codified in English law with the passing of the Human Rights Act 1998 (the “HRA 1998”). In historic cases, overcrowding, access to medical treatment and prison conditions more broadly have been judged to fall foul of Article 3 – ‘Freedom from torture and inhumane or degrading treatment’ – with the Courts refusing to accept assurances from the Government of India, as was the case in Chawla v Government of India.

Notable extradition cases to India

Mallya v Government of India – As the controlling director of Kingfisher Airways, Vijay Mallya is alleged to have sought sizeable loans from Indian banks, including the Industrial Development Bank of India. The Government of India later issued an extradition request for Mallya, contending an allegation that these loans were premised on a conspiracy to commit fraud by way of fraudulent misrepresentation. Notably, the Senior District Judge (“SDJ”) sitting in Westminster Magistrates Court ordered extradition ruling, inter alia, that:

  1. There was a prima facie case against Mr Mallya;
  2. Assurances from the Government of India in relation to Article 3 HRA 1998 were acceptable;
  3. There was no evidence that Mallya would suffer a flagrant denial of justice from the perspective of Article 6; and
  4. That witness statements obtained by the Requesting State were admissible.

The SDJ subsequently sent the case to the Secretary of State for the Home Department, who approved Mallya’s extradition. Appeals to the High Court, the Supreme Court and, most recently, the European Court of Human Rights, proved unsuccessful.

Modi v Government of India – An extradition request was issued for Nirav Modi (“NM”) by the Government of India on 27 July 2018 in connection with two sets of proceedings: one brought by the Indian Central Bureau of Investigation in relation to an allegation of a large-scale fraud upon the Punjab National Bank, the other - pursued by the Indian Enforcement Directorate over the alleged laundering of the proceeds of that fraud. A further request was issued on 11 February 2020 over allegations that NM interfered with the CBI investigation by causing the disappearance of evidence and intimidating witnesses.

The Senior District Judge ordered extradition ruling, inter alia, that:

  1. There was a prima facie case against Mr Modi;
  2. There were no human rights barriers to extradition, specifically in relation to Articles 3 and 6 of the HRA 1998; and
  3. That the challenge that the Requested Person’s mental health is now such that it would be unjust or oppressive to extradite him, failed.

The significance of these rulings is clear to see, including that previous roadblocks to extradition, most significantly Article 3, have been cleared, with the English Courts being satisfied as to the legitimacy of assurances from the Government of India.

It has been widely reported that Mallya has, however, lodged an asylum claim, which has resulted in the extradition request being put on hold for the time being.

This additional protection offered by the UK has attracted the ire of the Home Secretary, Priti Patel, who recently pledged to implement wholesale reform of the entire asylum system in the UK.

What are the expected changes?

- A policy paper published on 4 May 2021 outlining the details of a Memorandum of Understanding between the UK and India suggests that the two countries are working towards a less restrictive extradition arrangement;

- The ‘Migration and Mobility Partnership between India and the United Kingdom’ sets out a framework for an enhanced immigration relationship between the two nations. While the proposals encapsulate a broad range of immigration issues, including the mobility of students, academics and researchers, migration for professional and economic reasons, the fourth headline from the MoU resolves:

…to prevent immigration abuse in both directions and to assure the return to the Participants’ countries of illegal residents who have been properly identified by the procedure set out in this MoU.

- Commenting on the partnership and its implications for extradition in an interview with the Press Trust of India, Home Secretary Priti Patel said:

I am well aware of the whole issue and it is a difficult issue around economic offenders and I have watched with interest even prior to becoming Home Secretary the frustrations that were echoed to me previously by the Indian government… We cannot allow serious criminalities, serious offenders not to be put through the formal processes. We are committed to that…

- Even in its current, nascent form, the partnership is likely to have a noticeable impact on extradition between India and the UK and can be interpreted as part of Patel’s wider drive to reform the UK’s asylum system (an asylum claim is often registered in conjunction with fighting an extradition request). Patel has personally championed closer ties with India and sees streamlining the extradition arrangement as an area where this more harmonious relationship can be pursued.

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The information in this blog is for general information purposes only and does not purport to be comprehensive or to provide legal advice. Whilst every effort is made to ensure the information and law is current as of the date of publication it should be stressed that, due to the passage of time, this does not necessarily reflect the present legal position. Gherson accepts no responsibility for loss which may arise from accessing or reliance on information contained in this blog. For formal advice on the current law please don’t hesitate to contact Gherson. Legal advice is only provided pursuant to a written agreement, identified as such, and signed by the client and by or on behalf of Gherson.

©Gherson 2021

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