Chapter 10
Refugee proceedings and extradition

Possible reforms to the Extradition Act

A bar on determining extradition proceedings before refugee proceedings are determined

10.20Consideration should be given to introducing a requirement in statute that, where there are concurrent refugee and extradition proceedings in respect of the same person and relating to the country from which the person has left, the decision on extradition should not be able to be made until the refugee status has been finally determined, including any appeals. This is because it is not possible to know what New Zealand’s obligations in respect of the person are until their refugee status is known. The findings on refugee status will inevitably impact upon the extradition decision.491 However, the introduction of this type of bar would have the disadvantage of delaying the resolution of extradition proceedings.
10.21In Attorney-General v X, the Supreme Court held that it was correct for the Refugee Status Appeals Authority to attempt to resolve the application for refugee status prior to the resolution of any question of extradition.492 In the interests of clarity, it may be helpful for this direction about the sequencing of the decisions to be spelt out in legislation.
10.22The United Kingdom’s Extradition Act includes provisions stating that a person cannot be extradited until his or her claim for asylum has been determined.493 However, these provisions apply only in cases where the asylum claim was made after the extradition request was received. This limitation has been the subject of criticism and calls for change. The 2011 Baker Report found it surprising that the Act did not cover cases where asylum is claimed before the extradition proceedings, especially in light of clear case law that an asylum seeker should not be returned to his or her state of origin without appropriate inquiry into the alleged persecution.494 It recommended that the protection in the Act be extended to apply to asylum claims made by a person before the extradition proceedings have commenced.495
10.23The United Nations Office of the High Commissioner for Refugees (UNHCR) has provided guidance to parties to the Refugee Convention about the sequencing of decisions on extradition and refugee status. It recommends that a person’s refugee status needs to be resolved before the extradition decision can be made, advising that a country is obligated to do this on the basis of international refugee and human rights law.496 The UNHCR considers, however, that it is prudent for countries to conduct extradition and refugee proceedings concurrently because of increased efficiency and because the extradition process may result in the availability of information that has a bearing on the person’s eligibility for refugee status.497

Prohibition on extradition of refugees to country of originTop

10.24Consideration should also be given to including an explicit statutory prohibition on the extradition of refugees to their country of origin or to a country that would return them to their country of origin. This would directly reflect New Zealand’s international obligations in relation to refugees.

10.25Such a provision could be similar to section 70(2) of the United Kingdom’s Extradition Act. However, unlike the United Kingdom provision where the Secretary of State “may” refuse to proceed with the extradition request, it may be better to use mandatory wording to better reflect the international obligation of non-refoulement of a refugee.

10.26The UNHCR Guidelines suggest that explicit provisions should be enacted in national legislation to obligate authorities to refuse the extradition of a refugee or asylum seeker where it would be inconsistent with a country’s non-refoulement obligations under international refugee and human rights law. The UNHCR considers that this would constitute an important safeguard, even though the principle is binding under international law regardless of whether there is a legislative provision.498

10.27There may be some concerns about linking the two processes, however. A prohibition on extraditing refugees would limit the ambit of the decision maker’s role in extradition proceedings and make it subject to a separate statutory decision-making process. Explicit mention of refugee status in extradition legislation could encourage persons subject to an extradition request to apply for refugee status as a way of delaying resolution of the extradition proceedings.

10.28It should be noted that the international law obligation not to extradite a refugee does not apply where the requesting country is not the country from which the person has sought refuge. The United Kingdom courts have found that the statutory restrictions on determining an extradition claim while an asylum claim is in process do not prevent extradition to a third country. It is up to the court to consider whether a real risk exists that the requesting country might send the person back to the country from which he or she is seeking refuge. Where there is such a risk, the best option is likely to be to allow the asylum claim to be determined before the extradition proceedings.499


Q41 How should the relationship between extradition proceedings and refugee proceedings be clarified?

491United Nations High Commissioner for Refugees, above n 466, at [64].
492Attorney-General v X, above n 478, at [17].
493Extradition Act 2003 (UK), s 39 (applying to category 1 countries) and s 121 (applying to category 2 countries).
494Scott Baker, David Perry and Anand Doobay A Review of the United Kingdom's Extradition Arrangements (Home Office, 30 September 2011) at [9.52]; and R (European Roma Rights Centre) v Immigration Officer at Prague Airport [2004] UKHL 55, [2005] 2 AC 1.
495Baker, Perry and Doobay, above n 494, at [9.53].
496United Nations High Commissioner for Refugees, above n 466, at [64]−[65].
497United Nations High Commissioner for Refugees, above n 466, at [66].
498United Nations High Commissioner for Refugees, above n 466, at [39].
499Dos Santos v Cascais Court Second Criminal Chamber, Portugal [2010] EWHC 1815 (Admin), [2010] All ER (D) 123 (Jun).