Mishcon Academy: Digital Sessions podcast - Extradition/Asylum

Posted on 06 November 2020

The Mishcon Academy Digital Sessions.  Conversations on the legal topics affecting businesses and individuals today.   

Lucy Humphreys, Associate

In this episode, what are the key differences between extradition proceedings and the asylum procedure?  How does the issue of political persecution play out in both settings?  And how can clients benefit from a joint offering between extradition and immigration practitioners? 

Hello and welcome to the Mishcon Academy Digital Sessions podcast.  I am Lucy Humphreys, an Associate in the Immigration Team.  I am joined by my colleagues Maria Patsalos, a Partner in the Immigration Team and Ben Brandon, an extradition specialist and Partner in our White Collar Crime and Investigation Team.  Today, I will be asking both Partners to explain the work that we do together and the crossover between these two areas of law.

So, Maria, in so far as you are able to generalise, how would you characterise the typical Mishcon client who is seeking asylum or refugee status where they are perhaps also facing an extradition request?

Maria Patsalos, Partner

Thank you, Lucy, firstly for hosting this podcast.  Yeah, I mean, you can’t generalise all Mishcon clients but overall, these kind of clients are generally businessmen, entrepreneurs, they are typically successful enough so that they have become of interest to the State or the Government in question and usually, the Government starts to attack them by way of trumped up charges, corporate raiding and political persecution of some kind.  The typical nationalities are generally Russian, Middle Eastern but also other nationalities where leaders are showing more authoritarian style leaderships which can still take place under the guise of democracy, of course.  For example, Ben and I are dealing, at the moment, with a South American case so, you can see the range of nationalities that are involved. 

Lucy Humphreys, Associate

So, how would you each explain what the basic difference is in how you are involved in these applications where there is both an asylum and an extradition element?

Maria Patsalos, Partner

Yeah, good question.  So, it’s important to remember that whilst both elements impact each other and a joined up strategy is obviously really important, they are two separate types of proceedings so, as an immigration lawyer I deal with the asylum and immigration side and we make an application to the Home Office.  We are focussed on the Refugee Convention as well as other human rights legislation and sometimes we advise in relation to other immigration options as well but I’ll hand over to Ben in relation to the extradition side. 

Ben Brandon, Partner

So, extradition proceedings are a type of criminal proceedings, indeed the proceedings take place in a criminal Court, certainly at first instance, and are governed by the Criminal Procedure Rules.  In those proceedings which are adversarial, so you are against the requesting state, the requesting state is represented by the Crown Prosecution Service and my role in those proceedings is to represent the person whose extradition is requested and I will consider, for example, what bars might apply to their extradition and what other ways we might seek to challenge the request.  The asylum process does come in to play in extradition proceedings in all sorts of different circumstances but as a starter, it’s important to appreciate of course that if asylum is granted by the Secretary of State, then that is an absolute bar to a person’s extradition. 

Lucy Humphreys, Associate

Okay Ben, so Maria mentioned some of the jurisdictions that her clients are from.  What jurisdiction are you typically defending extradition requests from?

Ben Brandon, Partner

I have defended in cases from what I call Part 1 territories, which is member states of the European Union, but I have also defended in a number of Part 2 cases and I would say the majority of those have come from the Russian Federation but increasingly we are seeing a number of requests being made by India and also by South American and Latin American States so, there’s a sort of balance really from all over the world. 

Lucy Humphreys, Associate

Thank you, Ben.  Maria, you mentioned about the political persecution element of your cases and I just wondered what that means for the purposes of an asylum application and in an extradition context?  Are these arguments limited to individuals who are members of Government or are they traditional political figures?

Ben Brandon, Partner

Why don’t I just deal first with the extradition side of things because in certain respects, it’s a little more straight forward.  There is a potential challenge to extradition under the Extradition Act 2003, if the extradition is politically motivated and how that is expressed is that the request will fail if it is motivated or if it is for the purpose of prosecuting or punishing that person on account of their political opinions.  Now, in extradition proceedings, that term, political opinions, has been interpreted very narrowly and the important point to recognise is it’s what is in the mind of the requesting state at the time that the request is made and then this second issue, is whether that person’s trial should they be returned, pursuant to the extradition request, also be prejudiced by reason of their political opinions and in all of those instances, the burden is on the person whose extradition is sought to demonstrate that there is a serious possibility that that outcome might arise.  Now, political opinions in an extradition context, as I say, has been interpreted narrowly and in short, how the Courts have approached that question is to examine whether the person whose extradition is sought, has demonstrated, publicly, or expressed an allegiance to a particular political party or philosophy or ideology and it’s quite tricky in the absence of evidence of that, to fall within the political opinions bar.  Having said that, it’s a dynamic process and the Courts are constantly revisiting this issue and it may very well be in cases in the future that they adopt an approach which is more familiar to asylum practitioners as to the meaning of political opinion. 

Maria Patsalos, Partner

Thank you, Ben.  I think you’ve alluded to what I’m going to say next which is that the term politically persecuted in asylum applications is not as narrowly defined as it is in extradition proceedings.  It’s dealt with in a far more nuanced way in asylum applications and, for example, a businessman without political connections may still be politically valuable because of his position, his or her position, and this can mean a State can persecute them on the basis of political reasons even though they do not have a direct connection to politics.  So, for example, an individual can have various assets that could be of interest to the Government such as a media source, they could be wanting to be seen to challenge corruption and so therefore they’re scapegoating an individual who the public may mistakenly connect to the elite and there are many other examples of this.  It’s also worth adding that in asylum applications there are five convention reasons for a client to explain why they are being persecuted and political reasons is just one of them.  This can also be joined with one of the other reasons such as race, religion, nationality or a member of a particular social group.  The last one is actually quite wide and we can look at all the reasons why an individual is being targeted during an asylum application which is very useful.  Often clients run both sets of proceedings together and we have to work closely together, both Ben and I, to ensure that the arguments are consistent.  This is partly because even where politics is running both sets of proceedings, the same evidence isn’t always available.

Lucy Humphreys, Associate

So, on the point are there key differences between the asylum and extradition proceedings, can you give me an example on confidentiality of how they are both treated differently?

Ben Brandon, Partner

Thanks Lucy, if I could just deal with the extradition side of things, of course.  As I think I have already touched upon in an answer to a previous question, extradition proceedings are public by and large, witnesses give evidence in public although I have been involved in cases where witnesses have given evidence anonymously but it’s not usual and because those proceedings are public and because the requesting state is represented as a party in those proceedings, then any evidence which you rely on in support of your challenges to extradition, gets sent back to the requesting state and of course they can then see who wrote it, what the content of that evidence is and that may have repercussions and Maria is going to deal with what those repercussions might be and how the asylum process responds to that.  And of course because those proceedings are in public, the press can attend and what we see happen quite often actually is that where a case has a high profile in the country from which the extradition requests emanates, even if it’s of no interest whatsoever to the UK media, you will get the public gallery full of journalists from the requesting State following every move and reporting every word that is said in those proceedings. 

Maria Patsalos, Partner

Okay, and conversely in asylum it’s quite different.  An initial application is made just to the Home Office without the persecuting State being a party to the application at all and there are strict confidentiality rules that apply.  If and when, because it’s usually the case the application is refused, at an appeal hearing, generally these are public in the interest of justice and like Ben intimated just now, that they are open to everyone including journalists, however, it is possible to apply to the Court for these appeal hearings to be held in private, in camera, as it’s called and almost every application that we’ve made in relation to asylum hearings have been made in private and the benefit of that, as Ben alluded to, is that witnesses are able to feel free to give their evidence without feeling that the persecuting State may then turn on them.  The other important point is that where in extraditions proceedings, witnesses are giving evidence, of course that’s done in public and therefore they will be waiving their right to confidentiality in relation to the asylum proceedings so it’s important that both asylum and the extradition strategy is aligned so that this does not happen and does not adversely affect the asylum proceedings. 

In relation to the nature of the proceedings, for asylum it’s fairly complicated.  The application is initially made to the Home Office and as I mentioned, usually for complex asylum applications, they are refused in the first instance, it’s quite a high percentage actually.  The Home Office will then be represented at the appeal hearing by lawyers in Court.  The Court process is completely separate from the extradition Courts and it takes place in the immigration tribunal system. 

Lucy Humphreys, Associate

And timing-wise for both of the applications, how do they differ?  Do you have kind of example timelines you can give an indication of?

Ben Brandon, Partner

It really depends on so many different factors but just to try and give you a flavour of the different considerations that might apply, there is a lot of pressure on European restaurant cases, that’s request for extradition that emanate from the EU, 27 EU member states, to process those requests very quickly and by and large they get through the Courts relatively speedily, not anywhere near as quickly as our European neighbours but they take us, I would say, on average between let’s say six and nine months to deal with, sometimes longer depending on the complexity of the case.  In Part 2 cases, so requests that emanate from jurisdictions like Russia or India or Argentina or Canada, States like that.  If there are complex questions of law and fact involved and in particular, if the request comes from a State which does not have a longstanding relationship with the UK, then those requests can take years to go through the Courts and, for example, recently I have been dealing with a request from a South American State, it’s the first request of its kind made under, be it a nineteenth century treaty believe it or not, but that has taken nearly four years from the arrest on the extradition request in 2017 to the final determination of the appeal and the decision of the Secretary of State.  So, it can take anywhere between a few months to several years. 

Maria Patsalos, Partner

Well, I think probably the same goes for asylum, sadly.  It really does depend and it varies hugely depending on when the client first realises they are at risk but in particular with complex cases, we see the Home Office taking way longer than the stated six month processing period so, it can be anything from a few months to years, just as with extradition. 

Ben Brandon, Partner

There’s another thing I ought to add, of course, which is one of the big differences between the asylum case, although not in every case, but extradition Court considers at the first hearing whether the person whose extradition is sought, ought to be detained in custody and that usually means in HMP Wandsworth, for the duration of those proceedings and that decision is made in almost all cases on the basis of whether that person represents a flight risk so, that factor also has an impact on the time that the proceedings take because of course if somebody is in custody then there is a lot of pressure on the Court to expedite the hearing.

Lucy Humphreys, Associate

Okay and in terms of the cases that you see, are there particular trends for certain countries that either of you are interested in exploring?

Ben Brandon, Partner

Well, we’ve spoken a little bit about cases that extradition requests that have come from the Russian Federation and there’s been a number of very high profile requests for extradition that have come from the Russian Federation in recent years, perhaps the most familiar name to those listening to this podcast will be Boris Berezovsky whose extradition was sought by the Russian Federation about six or seven years ago now.  The extradition requests from the Russian Federation have got bogged down in slightly muddy ground – if I’m not mixing my metaphors – in recent months because the Russian Federation has been unable to satisfy the English Court that there is a sufficiently robust monitoring mechanism for what goes on in their places of detention.  There is a lot of evidence that being incarcerated either pre-trial or post-trial in the Russian prison estate, is a pretty unpleasant experience, frankly and the Court before it can extradite to a place where the conditions of a detention potentially fall well short of international standards, must be satisfied that there are a means to investigate, to monitor, to observe compliance with those standards and in Russian cases, it has been found that not only is ill-treatment and torture widespread within the Russian prison system but there is simply no mechanism whatsoever provided by the State or for that matter anybody else, to actually monitor what’s going on and try and improve matters and investigate where there have been breaches and so on and so forth.  So at the moment, no, or it doesn’t look like, there is going to be any extraditions for Russia for a while. 

As far as other States are concerned, as I said we are starting to see more and more from India, it’s become more confident, it’s had a number of successes in recent years, the most obvious example again might be known to our listeners, is the case of Mallya who ran the Formula One racing team, Force India, and as I say, South America, although we’ve had extradition treaties with South America for a very long time indeed, we are now starting to see more and more requests come from places like Peru, Ecuador, Brazil, Argentina and so on.  We are also, in fact, seeing requests from the Caribbean which is something that we haven’t seen for many, many years.  So, I would say that’s probably the, broadly, the trends that we are seeing emerging. 

Maria Patsalos, Partner

Well, from the immigration side, we also have country guidance published by the Home Office in relation to various countries.  However, these are only for certain countries and often they are out of date, they are just a starting point in any event and most clients actually have quite exceptional circumstances which apply to them which are not covered in these country guidance reports.  There are also countries which are designated safe countries by the Home Office and claims from EU countries are exceptionally difficult but there is always a unique circumstance which needs to be considered and it’s not impossible. 

Lucy Humphreys, Associate

Thank you.  And so, in terms of both sets of proceedings, what’s the difference in the protection that’s afforded to an individual?  So, Ben, in an extradition case, if you successfully defeat extradition, what does that mean for a client?

Ben Brandon, Partner

Thanks Lucy.  Broadly speaking, if you succeed in challenging an extradition so that you are discharged from proceedings either at Westminster Magistrates’ Court or subsequently on appeal, then it is unlikely that you will either be on the wrong end of another extradition request from the same State or if you are on the wrong end of an extradition request from the same State, that that second request will succeed but it’s not an absolute bar, this is an important point to have in mind.  I have done cases where, for example, I have managed to successfully challenge an extradition on the basis that the conditions of detention in the requesting State would amount to inhuman and degrading treatment contrary to Article 3 of the European Convention on Human Rights.  Subsequently, the requesting State is able to, for example, provide a very different place in which the person whose extradition is sought, is housed.  So, you might successfully argue that one prison is a nasty and unpleasant place and win the extradition and two years later, the requesting State come back and say, “We’re not going to put them in that prison, we’re going to put them in a different prison and this prison is much better” and in those circumstances, it’s very difficulty actually, to succeed second time round. 

Lucy Humphreys, Associate

And Ben, would that be on the same charge or would that be…?

Ben Brandon, Partner

Absolutely.  Yeah, it’s on the… it can be on precisely the same charge. 

Lucy Humphreys, Associate

Just with a different of…

Ben Brandon, Partner

Just with a different offer.  Or, I mean it can even be done where a requesting State is not sufficiently organised to get its act together to provide adequate assurances to treatment, loses the first extradition, realises it’s made a mistake, gets its act together, puts some proper assurances about treatment together and asks for extradition again second time round.  There’s no absolute bar, now there is another jurisdiction which is the abuse of process jurisdiction which is always in play in extradition and criminal proceedings and if you are able to demonstrate that a second or third or subsequent request is abusive, in other words that it is manipulating in some way the process of the extradition Court, then you might succeed in getting a second or third extradition request knocked down in that way but it is not an absolute bar, and the other very important point to have in mind is that whilst you are safe in the UK, or relatively safe subject to what I’ve just said about the prospect of subsequent extradition requests, of course there’s nothing to prevent the State that has requested your extradition from the UK repeating that request if you travel to another jurisdiction so, if you have successfully defeated a extradition request from Russia and you are in London and you have a sick relative in Spain and you want to go and visit them and you travel to Spain to do that, then if Russia becomes aware of your presence in Spain, there is nothing whatsoever to stop them from making an extradition request on exactly the same charge to Spain and the Spanish Court will not treat the fact that your extradition has been refused by an English Court as a bar to the request from Russia that arrives in Spain.  Of course it may take it into account, particularly if it’s a persuasive decision of a respected Judge and so on and so forth but it’s not a bar. 

Lucy Humphreys, Associate

And Maria, in asylum, how would you say that the position is different and is there still concerns for clients travelling if they have refugee status?

Maria Patsalos, Partner

Yeah, absolutely.  The benefit of obviously having a successful asylum application is that the client will get a right to reside in the UK for five years and if they are eligible after that time, they will be able to apply for indefinite leave to remain, otherwise known as permanent residency in the UK.  Now, if the grant of asylum relates to the same issues in regards to the extradition proceedings, the asylum grant will act as a bar to extradition and therefore it defends the extradition proceedings which is fantastic, however, as Ben just alluded to, if the client then travels outside of the UK and visits a sick relative in Spain, for example, then there is no bar to an extradition request coming in to Spain and therefore even though the client has a successful asylum application in the UK and is a refugee, then they are not necessarily safe if they travel outside of the UK.  The refugee will get a travel document which will allow them to travel which is a blessing in a lot of ways but, as I just mentioned, there are risks involved.  It is possible to request a State to recognise the finding of the UK Home Office and the grant of that asylum, however, in practice it is very difficult to obtain this recognition in advance of travel so, it’s a tricky situation for a refugee. 

Lucy Humphreys, Associate

And Maria, you mentioned that a client who has been successfully granted refugee status would then get permanent residency.  Would you have concerns with someone then applying for British Citizenship?

Maria Patsalos, Partner

Yes, I mean it’s something that most clients would want from the outset but there is an issue because once you obtain British Citizenship, the client would lose refugee status and this would obviously have a knock-on effect in relation to travel and extradition, which we’ve just discussed. 

Ben Brandon, Partner

I mean, I… Maria, just picking on that point.  I was involved in a case several years ago where the person whose extradition was sought had fled the territory of the requesting state on the basis that they were being persecuted and had been subjected to inhuman and degrading treatment in Police custody.  They made a successful application for asylum in the UK.  In other words, their status was granted.  Because they had been here for so long, they then were granted British citizenship and indeed this individual’s wife was also granted British citizenship but then I am afraid to say, the State from which he had fled then came knocking on the door with an extradition request and of course he was not able to rely on the fact of a successful grant of application for asylum to challenge his extradition because he was no longer claiming refuge, he was a British citizen and had the full status of a national of a State so, unfortunately, he had to fight his extradition on other grounds.  As it happened, he was able to rely on what had happened to him twenty years before in order to successfully challenge his extradition but, as I say, he couldn’t rely on his status as a successful claimant for asylum. 

Lucy Humphreys, Associate

So that’s a pretty clear example of how extradition and immigration proceedings can impact one another.  Historically, extradition proceedings have been linked to kind of the crime team and asylum has been connected to immigration and often you see that there are law firms that just deal with one area or the other.  What do you think the benefits are of kind of a joined up strategy?

Ben Brandon, Partner

This is something that I’ve given quite a lot of thought to over the last year or so and it does seem to me that the more exposure I have to working with the Immigration Asylum Team here, the greater the opportunity for working together and it seems to me that there’s obvious strategic issues that should be dealt with by both an extradition lawyer and an asylum lawyer, for example, when to make a claim for asylum is probably the first and most important issue to decide and I think you are going to get a better quality of decision making if you have input from both sides.  I mean, obviously if you think there’s not going to be an extradition request that’s going to materialise then it might be that you don’t need to have the input of an extradition lawyer but in most of the cases we’ve been talking about, there is an extradition request that’s already in the background or that you know is going to be forthcoming.  The other obvious areas of cooperation are, and again we’ve already touched upon on this in some of the previous answers to questions you’ve asked Lucy is, the sharing of evidence.  Issues which arise in asylum proceedings are often very similar to the issues that arise in extradition proceedings so you might challenge your extradition on the basis that you won’t see the fair trial.  You might want to challenge your extradition on the basis that you are being prosecuted and extradited for your political opinions.  You might want to challenge your extradition on the basis that the conditions of detention that you would face, were you to be returned, would violate your human rights in that they would be inhuman and degrading.  All of those issues can and are raised in asylum proceedings and it seems to us that there’s no reason why you can’t deploy precisely the same evidence across both sets of proceedings, of course subject to the kind of confidentiality issues that we’ve already discussed and perhaps as an obvious benefit to sharing evidence across teams and across proceedings that you’re only paying for it once and the process that every lawyer engages in, which is getting to know the client, getting to know their story, what’s sometimes called ‘Taking instructions from the client, about these kind of issues in order to formulate a proper defence or claim for asylum or basis for contesting an extradition, can all be done at the same time by the same lawyers so it seems to me that those are some of the ways in which it is of benefit to a client and leads to better decision-making if there is a shared and cooperative approach.  What one final obvious point to make as well, is that depending on when the asylum claim is made and whether the Secretary of State is still considering the decision as to whether to grant asylum at the time that the extradition proceedings are ongoing, can have an impact on whether those extradition proceedings are adjourned to permit the asylum application to be determined and that is particularly the case where the person seeking asylum is unable to deploy important evidence in support of their claim and in support of their challenge to extradition in an open and public forum of the kind that we have discussed takes place in the extradition context and can only deploy that evidence in asylum proceedings and in those circumstances, again, important, tactical decisions need to be made about whether to adjourn the extradition proceedings to permit the asylum process to take its course.  All of those kinds of decisions, all, in my view, better made in cooperation and conjunction with the asylum team. 

Maria Patsalos, Partner

I totally agree, Ben. 

Lucy Humphreys, Associate

Okay, I think we’ll wrap up there for today.  Thank you so much to Maria and Ben for joining me for this Mishcon Academy Digital Session.  I am Lucy Humphreys and in the next episode, my colleagues Tom Grogan and Alastair Moore will be discussing Artificial Intelligence and Machine Learning, their possible application and the key things for organisations to consider when seeking to implement them. 

The Digital Sessions are a series of online events, videos and podcasts, all available at mishcon.com and if you have any questions you would like answered or suggestions of what you would like us to cover, do let us know at digitalsessions@mishcon.com.  Until next time, take care.

The Mishcon Academy Digital Sessions.  To access advice for businesses that is regularly updated, please visit mishcon.com.

Mishcon Academy: Digital Sessions are a series of online events, videos and podcasts looking at the biggest issues faced by businesses and individuals today.

In this Mishcon Academy: Digital Session podcast, Associate Lucy Humphreys was joined by Partners Maria Patsalos and Ben Brandon to discuss the key differences between extradition proceedings and the asylum procedure, how the issue of "political persecution" plays out in both settings, and how clients can benefit from a joint offering between extradition and immigration practitioners.

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