Chapter 10
Refugee proceedings and extradition

Interrelationship between refugee and extradition decisions and proceedings

10.14International refugee protection and criminal law enforcement are not mutually exclusive.480 The Refugee Convention is not a complete shield against prosecution where refugees or asylum seekers have engaged in criminal conduct,481 yet where the person who is the subject of the extradition request is a refugee or asylum seeker, his or her special protection needs must be taken into consideration.482
10.15The refugee proceedings and the extradition proceedings are separate decisions made on different bases by different decision makers, but they may have some impact on each other, and there is crossover in the factors that may be relevant to each. The grounds for finding that someone is a refugee may be similar to those that can be used to refuse surrender, but they are not conclusive as to one another in their respective procedures. This is because they derive from different statutory authorities and are subject to separate authoritative decision-making procedures.483 When refugee status is granted at the time of or prior to an extradition request, the circumstances are usually such that the person will not be surrendered for extradition, but refusal of an extradition request does not confer refugee status on the person.484
10.16A finding that someone is a refugee would only be conclusive for refusing extradition if there is a statutory provision making it so. The United Kingdom’s Extradition Act 2003 contains a provision that effectively does this. The Secretary of State may refuse to certify an extradition request and send it to the court for consideration if the person who is the subject of the request is a refugee.485 This provision is intended to prevent extradition proceedings that are bound to result in the extradition being barred under the discrimination ground for refusal.486 Although the provision uses the word “may”, case law has demonstrated that the Secretary of State does not have any real discretion. In such a case, the Secretary of State must refuse the request.487

10.17Even if the finding that a person is a refugee is not determinative or binding under a statute for the purpose of refusing an extradition request, it is likely the same factors that lead to the refugee decision will direct the extradition decision maker that the extradition should be refused because of discrimination or prejudice or because the offence in question is a political offence.

10.18In the case of Németh v Canada (Justice),488 the Canadian Supreme Court sets out the relationship between a refugee status decision and an extradition decision. Given that the Canadian and New Zealand legislation in relation to both refugees and extradition in this area is similar, this case illustrates the likely position in New Zealand if the New Zealand courts were given the opportunity to explore the issue further. The Canadian Supreme Court considered that the grounds for refusing extradition under their Extradition Act could be interpreted consistently with the Refugee Convention. However, it found that the Minister of Justice was not bound under the Extradition Act to refuse the surrender of a refugee. The refugee decision was not determinative for the purposes of the extradition decision, but the Court noted that the ground for refusing surrender should be read broadly as protecting a refugee against refoulement where there is risk of prejudice on the listed ground. Additionally, the Minister was obliged to consider the discrimination ground for refusing surrender when the person is a refugee from the requesting state, and refusal on the basis of this ground was held to be mandatory if the conditions that led to the refugee status still exist.489
10.19A further point to note is that the Refugee Convention protects an asylum seeker whose refugee claim has not yet been determined from refoulement. This means that the requested country cannot extradite an asylum seeker to his or her country of origin while the refugee claim is being considered.490 As a consequence, where there is an extradition request in relation to an asylum seeker, the extradition decision should not be made until the refugee decision has been made.
480United Nations High Commissioner for Refugees, above n 466, at [2].
481Convention Relating to the Status of Refugees, above n 464, art 1F provides that the Convention does not apply to any person with respect to whom there are serious reasons for considering that:
(a) he has committed a crime against peace, a war crime, or a crime against humanity, as defined in the international instruments drawn up to make provision in respect of such crimes;
(b) he has committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee;
(c) he has been guilty of acts contrary to the purposes and principles of the United Nations.
482​United Nations High Commissioner for Refugees, above n 466, at [2].
483M Cherif Bassiouni International Extradition: United States Law and Practice (5th ed, Oxford University Press, New York, 2007) at 93.
484At 199.
485Extradition Act 2003 (UK), s 70(2).
486Clive Nicholls and others Nicholls, Montgomery, and Knowles on the Law of Extradition and Mutual Assistance (Oxford University Press, Oxford, 2013) at [4.38].
487District Court in Ostroleka, Second Criminal Division (a Polish Judicial Authority) v Dytlow [2009] EWHC 1009 (Admin) at [13].
488Németh v Canada (Justice) 2010 SCC 56, [2010] 3 SCR 281.
489Németh v Canada (Justice), above n 488, 283–284.
490United Nations High Commissioner for Refugees, above n 466, at [31].