Troitino, R (on the application of) v National Crime Agency & Ors

An asylum claim for section 39 of the Extradition Act 2003 need not comply with prescribed formalities and may be made through a solicitor. It must nevertheless claim asylum, expressly or by necessary implication, and be made to the Secretary of State.

A response to a One Stop Notice which merely states that Refugee Convention arguments will be advanced on appeal is not an asylum claim. Disputes about whether an asylum claim has been made should be resolved promptly, and human rights grounds should ordinarily be raised in the extradition proceedings.

The claimant sought permission for judicial review of the National Crime Agency’s proposed removal to Spain following an extradition order. He relied on a letter sent by his solicitors on 27 November 2013, contending that it constituted an asylum claim which had not been finally determined. If so, section 39 of the Extradition Act 2003 would have prevented extradition pending determination of the claim.

The court considered whether the letter was an asylum claim under section 113(1) of the Nationality, Immigration and Asylum Act 2002, and whether the judicial review claim was brought in time. It also made observations on the interaction between section 39 and asylum claims.

1. Permission to apply for judicial review was refused. The claim was out of time and failed on its merits. The interim injunction was discharged, and the National Crime Agency could apply, if necessary, to set the start of the ten-day extradition period.
2. Section 113(1) of the Nationality, Immigration and Asylum Act 2002 imposes no particular formalities. An asylum claim may be written or oral and may be made through a solicitor. It must, however, be made to the Secretary of State and must at least claim asylum in terms sufficiently clear for the Secretary of State to identify, investigate and determine it.
3. The letter of 27 November 2013 did not claim asylum. It stated that the claimant would argue on appeal that deportation breached the Refugee Convention and was expressly framed as an interim response to a One Stop Notice. It therefore gave notice of proposed appeal grounds, rather than making an asylum claim. It could not later be converted into one.
4. The Secretary of State had clearly rejected the contention that the letter contained an asylum claim in December 2013. The claimant did not challenge that decision promptly. The proceedings were a late collateral challenge and permission was refused as out of time.
5. The interaction between section 39 and a valid asylum claim did not arise for decision. The court observed that any dispute about whether a document constituted an asylum claim should be resolved swiftly where extradition was involved. Human rights bars should ordinarily be raised and resolved in the extradition proceedings.
6. The court expressed strong disagreement with the submission accepted by UTIAC that no flagrancy threshold applied in an EU human rights case. It considered that the threshold derived from ECHR jurisprudence and applied in all contexts.

The judgment records earlier extradition proceedings, including the Divisional Court’s decision of [2016] EWHC 3029 (Admin). The present court treated the claim as a separate judicial review challenge and refused permission.