Whistleblowing is again front and centre in the news after the High Court of England and Wales decided on 20 May 2024 to give Julian Assange permission to appeal against his extradition to the United States. Extradition is the legal term given to the transfer of a person from one country to another to serve an existing criminal sentence or undergo trial. Mr Assange’s extradition is sought so he can stand trial on 17 espionage charges and one charge of computer misuse, all of which relate to his website’s publication of classified US documents almost 15 years ago. If proven, those charges carry a maximum sentence of 175 years in prison.
Mr Assange previously appealed against his extradition on the ground that he was at risk of suicide — a claim that was refused by the High Court in 2021 and UK Supreme Court in 2022.
The basis for the High Court’s fresh grant of permission, which is limited to an argument that Mr Assange would be discriminated against on the basis of his nationality, followed the US government’s failure to provide satisfactory assurances about whether he would have access to the First Amendment to the US Constitution as an Australian national.
For Mr Assange, this appeal may be his final chance to oppose his removal to the USA. That is not only because of his previous extradition appeal but also because he is not a national of the USA, which would be the starting point of an asylum claim.
The purpose of this article is not to speculate on Mr Assange’s prospects of succeeding before the High Court. Instead, as expert asylum lawyers, we intend to set out why an asylum claim is often a beneficial second line of defence for any whistle-blowers who do fear political persecution in their own country.
The difference between asylum and extradition
An asylum claim is a claim that a person cannot lawfully be removed from the UK because they have a well-founded fear of persecution for a reason protected by the Refugee Convention (for example race, religion, or political opinion).
In ‘political’ extradition cases, where the person subject to an extradition request believes they are facing made up or unfounded criminal charges due to their political opinions or their actions as a whistle-blower, then the overlap with asylum is obvious. But what are the differences?
Procedural and evidential advantages of an asylum claim
The first thing to note is that a successful asylum claim acts as a ‘bar’ to extradition — meaning a recognised refugee cannot lawfully be extradited to their country of origin even if the extradition court has decided it would be safe for them to return.
Although merely making an asylum claim will not protect an applicant in perpetuity, it will prevent anybody from extraditing them for as long as the claim is ‘outstanding’ before the Home Office or the Immigration Tribunal, regardless of whether they made the claim before or after the warrant was issued.[1]
Asylum and extradition defences are often run in parallel though in some cases, provided they lodged their asylum claim before the extradition court has begun substantively considering the case, there is a fair chance the judge will agree to ‘adjourn’ the extradition until the asylum process is concluded.[2]
Asylum and extradition teams can work in a coordinated and strategic manner to provide two different forums in which to fight removal.
This is particularly beneficial because, in whistle-blowing cases or indeed any high-profile political cases, it is often very hard to find witnesses who are willing to speak out publicly against the regime, for fear that they will themselves face punishment or reprisals for doing so. That makes extradition a tricky forum, because its hearings are conducted in open court and the ‘requesting state’ (which is usually also the alleged persecutor) is one of the parties to proceedings.
By contrast, in asylum, the only other party is the UK Home Secretary. Throughout the duration of a claim, he is prohibited from disclosing its existence or any of its details to the requesting state.[3] If the Home Secretary refuses the claim and it is necessary to go through an appeal, it is possible to apply to the Tribunal for anonymity orders (meaning no identifying details may be published) and even private hearings,[4] where the door to the courtroom is locked and nobody but the parties and witnesses are allowed inside.
As a result, the applicant, potential witnesses, and even experts are often more willing to give sensitive evidence about the existence of political corruption and a risk of persecution in the country of origin.
If it is not possible to adjourn the extradition behind the asylum claim, and the claimant instead faces a situation where their asylum claim remains ongoing after their extradition has been ordered, all is not lost: although the Home Secretary and Immigration Tribunal are likely to give weight to the conclusions of another court, it is possible to argue that the situation is significantly different because so much of the evidence of political persecution could not be deployed in a public hearing.
Potentially advantageous legal tests
Besides the procedural and evidential benefits of claiming asylum that are set out above, there are also some differences in the respective tests, which may make asylum more beneficial.
Firstly, the statutory bars to extradition generally focus on the state’s motivation at the time they issued the extradition request. By contrast, an asylum claimant can also rely on any activities conducted since they left their own country, and on changes in the country conditions in that period[5] — including evidence that the situation has become more oppressive for whistle-blowers and other political activists.
A further possible difference between the two forums is the test that individuals facing political persecution must meet to satisfy the relevant court or tribunal that the prosecution against them is itself a form of persecution.
In extradition, a requesting state (with some exceptions) may be asked to prove they have a ‘prima facie’ case against the individual.[6] In asylum, the Home Secretary may exclude a claimant from refugee protection if there are ‘serious reasons for considering’ they have committed a ‘serious non-political crime’,[7] usually requiring “clear and credible” or “strong” evidence that it is more likely than not the claimant is guilty.[8]
In the asylum proceedings it may be necessary to run a ‘mini trial’ of the facts to convince the decision-maker they cannot be satisfied the prosecution is well-founded. Here too asylum has some potential benefits. First, the UNHCR and the courts have expressly stated that Article 1F must be applied restrictively and cautiously, due to the protective nature of the Refugee Convention.[9] Second, asylum judges, who are experts in the European Convention of Human Rights, are well-placed to assess whether any future trial would be compliant with Article 6 (the right to a fair trial).
Lastly, although the domestic case-law on the status of whistle-blowers in asylum claims is underdeveloped, other common law jurisdictions have indicated that politically motivated whistle-blowers may attract the protection of the Convention, depending on the facts. The broader UK case law on political persecution can also be helpful. It is well-established that what constitutes a ‘political opinion’ must be construed broadly; it is not confined to party politics and may be engaged by any opinion on a matter involving the machinery of the state or government.[10] In addition, the political opinion a person is persecuted for does not necessarily need to be held by them in reality; it is sufficient for the persecutor to attribute it to them.[11]
Conclusion
The purpose of this article is not to argue that an asylum claim will always be the best option. Rather that on many occasions it will be an extremely useful second line of defence. This is particularly the case given the procedural, evidential, and legal nuances of the asylum process. That is perhaps truest in highly sensitive political cases, including whistleblowing, where the added confidentiality frequently makes it easier to deploy the full evidential case that is required to prove an allegation of high-level government corruption.
[1] Sections 39 and 121 Extradition Act 2003.
[2] Chichvarkin & Ors, R (on the application of) v Secretary of State for the Home Department [2011] EWCA Civ 91
[3] VT (Article 22 Procedures Directive – confidentiality) Sri Lanka [2017] UKUT 368 (IAC).
[4] Rules 13 and 27 of the First-tier Tribunal (Immigration and Asylum Chamber) Rules 2014.
[5] This is called a sur place claim, and is confirmed as valid by Paragraph 339P of the Immigration Rules.
[6] Section 84 of the Extradition Act 2003.
[7] Article 1F(b) of the Refugee Convention.
[8] See further Al-Sirri [2013] 1 AC 745.
[9] See the UNHCR Handbook, UNHCR Guidelines on International Protection: Application of the Exclusion Clauses: Article 1F (4 September 2003), and in R (on the application of JS (Sri Lanka)) v Secretary of State for the Home Department [2010] UKSC 15.
[10] Gomez v SSHD [2000] INLR 549 and Storozhenko v SSHD [2001] EWCA Civ 895.
[11] Danian v Secretary of State for the Home Department [1999] INLR 533.
For further information, please contact Matt Ingham, Partner or Sheroy Zaq , in the Citizen and Immigration department or, alternatively, telephone on 020 7465 4300.
