Whilst there has been reasonable transparency concerning the impact of the UK’s departure from the EU where resident European nationals are concerned, there was altogether less clarity regarding international cooperation in criminal justice matters.
Extradition falls in the overlap between the two areas; typically concerning European nationals who are habitually resident in the UK but whose return to another jurisdiction is sought. This article attempts to examine how the extradition courts have dealt with the lack of EUSS clarity.
EU Settlement Scheme
The provisions of the EU Settlement Scheme (EUSS) as governed by Appendix EU of the Immigration Rules will be well known to immigration practitioners. Appendix EU was brought into force by the Statement of Changes of 20 July 2018 (ie command paper CM 9675). Initially taking effect from 28 August 2018 on a limited basis, but fully taking effect on the 30 March 2019. Rules EU15, 16 and 17 set out when the basis on which an application under Appendix EU may be refused on suitability grounds.
Guidance as to whether an applicant meets the EUSS suitability requirements was published in April 2021, and must be used when considering whether the suitability requirements in Appendix EU are met. Within the guidance it states that an application may be transferred from UK Visas and Immigration, to Immigration Enforcement (IE) and states (emphasis added):
Referral to Immigration Enforcement
This section tells you when an application under the EU Settlement Scheme is to be referred from UK Visas and Immigration (UKVI) to Immigration Enforcement (IE).
Where the result of the check of the Police National Computer (PNC), Warnings Index (WI) or immigration records indicates that:
- the applicant has, in the last 5 years, received a conviction which resulted in their imprisonment
- the applicant has, at any time, received a conviction which resulted in their imprisonment for 12 months or more as a result of a single offence (it must not be an aggregate sentence or consecutive sentences)…
UKVI must refer the case to IE for a case by case consideration as to whether or not the individual in question ought to be deported or excluded.
Where an applicant has declared previous overseas criminality, or a check of the PNC or WI indicates that an applicant either:
- was previously extradited from the UK
- is subject to an outstanding arrest warrant issued by a member state of the EU or Interpol alert
- has an overseas conviction
You must make further enquiries to establish if there is police interest (where there is an outstanding arrest warrant) or to establish further information about an overseas conviction.
Once the details of an overseas conviction or an outstanding arrest warrant case are known, consideration must be given to whether any previous convictions require referral to IE for deportation consideration.
These provisions reveal that for EU nationals with overseas convictions, applications for settled status come with barriers and uncertainty, even where offending is historic. At present there is no significant case law on the interpretation of the guidance and given the typically slow pace of Home Office decision making it is likely that we will be waiting some time for any such jurisprudence to develop.
EU Settlement Scheme and Extradition
The impact of this uncertainty in the EU Settlement Scheme on individuals’ Article 8 rights, when resisting extradition, was considered for the first time in any substantial way in Antochi v Germany  EWHC 3092 (Admin).
In this case Fordham J accepted that a lack of clarity concerning a Requested Person’s ability to return and re-establish themselves in the UK through the settled status scheme was relevant to the Article 8 assessment of proportionality both in terms of the subjective anxiety it will cause to any family unit and as an objective factor establishing substantial risk that the subject individual may be unable to return to their life here. [Paras 50 – 52]
The reasoning in Antochi was followed by Cranston J in Rybac v District Court of Lublin, Poland  EWHC 712 (Admin). At paragraph 36 he stated:
‘In my view, the District Judge ought to have taken into account the potential difficulties in the appellant returning to the UK as an express factor in the Celinski balancing exercise. His decision was handed down on 21 January 2020, two days before the European Union (Withdrawal Agreement) Act 2020 became law. It was clear that free movement between the UK and the European Union would come to an end at some point.’
The consequence of the above line of authority is that the uncertainty concerning return to the UK for European nationals subject to extradition proceedings is to be considered as a factor which will weigh against their removal.
Therefore, Brexit, whilst making the detection of European criminals in the UK harder through the loss of the Schengen Information System, appears to have also added an extra layer of difficulty in seeking their removal even when apprehended. The uncertain application of the EUSS to European criminals brought before the extradition courts will provide an additional avenue of challenge unless and until there is precedent addressing the application of the suitability requirements to those individuals.
Rebecca Hill is a highly experienced specialist in extradition and international crime who has worked at the forefront of this niche area for more than a decade. She regularly conducts cases of the utmost gravity including those involving allegations of murder, terrorism and multi-national fraud as well as those with the gravest consequences for their subjects. Rebecca is ranked in Chambers and Partners as a band 2 leader in the field of Extradition at the London Bar and is also ranked in the Legal 500. It is a mark of her experience and expertise that she has been consistently recognised since 2009.
Joe O'Leary accepts instructions in extradition matters and has a keen interest in cases involving international jurisdiction and related matters. Joe accepts instructions in relation to Public Inquiries & Inquests and he also accepts instructions in relation to Immigration matters.