Dos Santos, R (on the application of) v Judge Margarida Isabel Pereira De Almeida of the Cascais Court 2nd Criminal Chamber, Portugal

Section 39 of the Extradition Act 2003 prevents extradition only where the asylum claim was made during the statutory relevant period. That period begins when the certificate relating to the European Arrest Warrant is issued and ends on extradition. An asylum claim made before that period does not itself prevent extradition.

Where the claim concerns the requested person’s country of nationality, but extradition is sought by another Convention state, the unresolved claim does not ordinarily require an adjournment or prevent extradition. The court should respect the requesting state’s Convention obligations unless a specific legal bar or public law error is established.

The claimant, an Angolan resident in the United Kingdom, had an asylum claim dating from 1995 which remained outstanding after earlier refusals were withdrawn. Portugal sought his extradition under European Arrest Warrants concerning alleged robberies.

District Judge Evans ordered extradition and refused to adjourn pending determination of the asylum claim. The claimant appealed and also sought permission for judicial review of the refusal to adjourn. The central issue was whether the unresolved asylum claim engaged section 39 of the Extradition Act 2003, or otherwise required extradition proceedings to be postponed.

1. The appeal was dismissed and permission to apply for judicial review was refused. The judicial review claim was also out of time, having been issued more than three months after the District Judge’s decision, and was unarguable.
2. Section 39 of the Extradition Act 2003 gives a specific protection where an asylum claim is made during the relevant period. Under section 39(2), that period starts when the section 2 certificate is issued and ends when extradition occurs. The word “made” identifies the time when the claim is lodged; it has no wider transactional meaning.
3. The claimant’s asylum application was made in 1995, before the European Arrest Warrants were certified in 2009. It therefore was not made during the relevant period, and section 39 did not bar extradition. No section 40 certificate was required before the extradition decision could be made.
4. District Court of Ostroleka v Dytlow [2009] EWHC 1009 (Admin) was not directly applicable. That case concerned persons who had already been granted refugee status, and asylum protection relating to the requesting state. The claimant had not been granted refugee status, and his claim concerned Angola rather than Portugal.
5. The approaches in Hilali v Secretary of State for the Home Department [2008] EWHC 905 (Admin) and Ignaoua v Italy [2008] EWHC 2619 (Admin) supported the conclusion that an undetermined asylum claim concerning a non-requesting state was no bar to extradition. The court also found no public law error in refusing an adjournment, applying the approach to judicial review of such decisions discussed in Olah v Czech Republic [2008] EWHC 2701 (Admin).
6. Portugal had ratified the Refugee Convention and the European Convention on Human Rights. Mutual trust between Convention and European Union Member States supported the conclusion that extradition to Portugal would not unlawfully expose the claimant to onward removal to Angola.

• High Court (Administrative Court): District Judge Evans ordered extradition on 9 March 2010. The High Court dismissed the appeal and refused permission for judicial review.