The Queen (on the application of Antonio Arranz Troitino) v National Crime Agency (1) Secretary of State for the Home Department (1st Interested Party) (2) Spanish Judicial Authority (2nd Interested Party)
| Jurisdiction | England & Wales |
| Judge | Mr Justice Ouseley |
| Judgment Date | 28 April 2017 |
| Neutral Citation | [2017] EWHC 931 (Admin) |
| Docket Number | Case No: CO/874/2017 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 28 April 2017 |
and
[2017] EWHC 931 (Admin)
Lord Justice Burnett
Mr Justice Ouseley
Case No: CO/874/2017
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Ms Laura Dubinsky and Ms Jelia Sane (instructed by Birnberg Peirce & Partners) for the Claimant
Mr Malcolm Birdling (instructed by the National Crime Agency) for the Defendant
Ms Julie Anderson and Mr Myles Grandison (instructed by the Government Legal Department) for the 1 st Interested Party
Mr Ben Lloyd (instructed by the Crown Prosecution Service) for the 2 nd Interested Party
Hearing date: 24 March 2017
Approved Judgment
This is the judgment of the Court prepared by Ouseley J.
The Claimant seeks permission to apply for judicial review of the action of the Defendant National Crime Agency, NCA, in seeking to extradite him to Spain. On 25 November 2016, the Divisional Court dismissed his appeal from the order for his extradition by Senior District Judge Riddle at Westminster Magistrates' Court, and on 9 February 2017, it refused to certify a point of law for the Supreme Court. The NCA was required by s36 of the Extradition Act 2003 to remove him to Spain within 10 days after 9 February. The Claimant says that he has an outstanding appeal against the refusal of an asylum claim, and that his removal is barred the while by s39 of the 2003 Act. The Secretary of State for the Home Department said that no such asylum claim had been made, and so the NCA intended to proceed with removal on 16 February. The Claimant applied for injunctive relief on 15 February to prevent his removal; the application came before Ouseley J on 16 February, on informal notice to the NCA and SSHD, who were not present. Ouseley J ordered that the Claimant be not removed until 24 February 2017, when Supperstone J continued the injunction pending a full hearing of the application for relief and permission. That came before this Court on 24 March 2017.
Two broad issues arise: did the Claimant make an asylum claim on 27 November 2013, the date of the document which he relies on for that purpose? In view of the dependence of any asylum claim upon human rights issues which he did or could have raised in his extradition appeals, did s39 of the 2003 Act apply to prevent his removal?
The background
In 1989, the Claimant, a member of the Basque separatist group, ETA, was convicted in Spain of 91 offences including murder, attempted murder and terrorism. He had detonated an explosive device in central Madrid, as a convoy of the Civil Guard approached. He was sentenced to 2232 years in prison. In 2000, the Audiencia Nacional, the highest trial court in Spain, capped the combined time to be served at 30 years without remission. This would have led to release in January 2017, but he was also entitled to remission for good conduct against that 30-year sentence or sentences, which would lead to release in 2011. In 2006, the Spanish Supreme Court amended the calculation for the remission of multiple capped sentences, with the effect that release in 2011 was postponed to 2017; the so-called "Parot doctrine". In fact, he was released on 13 April 2011, even though the Audiencia Nacional had ruled in February 2011 that he was not to be released until 2017. On 19 April 2011, the release order was revoked. But he had fled Spain, initially for France, and then, at a date unknown, he came to the UK.
He had arrived by 29 June 2012 because on that day he was arrested here pursuant to a European Arrest Warrant, EAW1, issued by a Spanish judicial authority, seeking his extradition to serve the 6 years or so balance of the sentence. In June 2013, the Divisional Court dismissed his appeal against the order for his extradition on that warrant, on the basis of the Spanish judicial authority's undertaking to abide by the forthcoming decision of the ECtHR Grand Chamber. On 21 October 2013, the ECtHR Grand Chamber upheld its earlier section decision, that the retrospective application of the "Parot doctrine" breached Articles 5 and 7 ECHR; Del Rio Prado v Spain (2014) 58 EHRR 37. Next day, he applied to re-open the appeal, and was granted bail by the Lord Chief Justice.
On 22 October 2013, however, the Claimant was taken into immigration detention because of a decision by the SSHD to deport him to Spain on the grounds that his presence in the UK constituted a sufficiently serious threat to its interests. The SSHD's letter required the Claimant, pursuant to a "One Stop Notice" under s120 of the Nationality, Immigration and Asylum Act 2002, the NIAA 2002, to state, on the Notice of Appeal form, any grounds he had for not being removed from the UK.
His Grounds of Appeal to the First-tier Tribunal, FtT, denied that he was a threat, and included the ground that his removal would breach the Refugee Convention; the form of persecution he feared was unlawful detention contrary to Article 5 ECHR and the application of retrospective penalties under Article This treatment was said to be sufficiently severe to constitute persecution. It would also be a "flagrant breach" of those Articles of the ECHR. This is not said by the Claimant to be the making of an asylum claim for the purposes of s39 of the 2003 Act.
On 13 November, the SSHD wrote that she had decided to withdraw her letter of 22 October 2013, and invited the Claimant to make the representations he should have already been given the opportunity to make. The letter invited the Claimant to withdraw his appeal. The accompanying letter invited the Claimant to give any reasons, why he should not be deported, to the Home Office at its Croydon address. It contained a "One Stop Warning", saying that "you must now make a formal statement about any reasons why you think you should be allowed to stay in this country. This includes why you wish to stay here, and any grounds why you should not be removed or required to leave… You do not have to repeat any reasons you have already given us."
At a hearing on 27 November 2013, the Claimant was discharged from EAW1, because the Spanish judicial authority was not abiding by its undertaking. There were therefore then no extradition proceedings in progress in the UK, although EAW1 was not withdrawn, and the Spanish authorities clearly intended to pursue it in other countries, or to return him to prison should the Claimant return to Spain. Also on 27 November 2013, however, the Claimant's solicitors wrote to the Treasury Solicitor's Department in response to that letter of 13 November. This is the letter relied on as making an asylum claim to the SSHD for the purposes of s39 of the 2003 Act. It described itself as providing a "brief outline" and an "interim response" because there had not been time and funding to take full instructions, and because counsel for the SSHD at a hearing that morning had made it clear that the SSHD had already reached a settled view that the Claimant was to be deported. The letter "took this opportunity to sketch out the response that my client will make in his appeal to the Tribunal." The letter repeated what had been set out in the earlier letter on the Refugee Convention and ECHR points. The Claimant was released from immigration detention two days later. Later, the SSHD said that the decision to deport had been withdrawn on 29 November in the light of further extradition proceedings.
The Treasury Solicitor replied to that letter on 11 December 2013 saying: "My client notes that your client purports to make a claim for protection under the Refugee Convention, although your letter does not contain any detailed representations. I am instructed that if your client wishes to make an application for asylum he should attend at the Asylum Screening Unit in Croydon to make his submission in person. I would be grateful if you could advise your client accordingly."
The Claimant did not seek to attend to make his submission in person, nor did he send to the SSHD any more elaborate claim. Nor did he take issue with the content of the letter.
The Spanish judicial authority issued a second EAW in January 2014, from which the Claimant was discharged by Westminster Magistrates' Court in October 2014. That led to the issue of a third EAW, EAW3, in November 2014, an accusation warrant alleging membership of a terrorist organisation and forgery of official documents. It was upheld by Westminster Magistrates' Court, but from which the Claimant was discharged by the Divisional Court on 31 July 2015, [2015] EWHC 2305 (Admin), Lord Thomas LCJ and Cranston J. This judgment is important for the issues which it covered and for the basis of the discharge. The Claimant was discharged only under s12A of the Extradition Act 2003, because of the inadequate consideration given to the use of Mutual Legal Assistance in the particular circumstances of that case. The appeal had raised issues of what was called "judicial engineering", and Articles 5 and 6 ECHR, which were rejected by the Divisional Court.
"Judicial engineering" alleged that the Spanish judicial authorities were doing all they could to give effect to the "Parot doctrine" in response to popular and political concerns about the release of ETA terrorists. This allegation appears to have been a mixture of an allegation of abuse of power, and of the real risk of flagrant breaches of Articles 5, 6 and 7 ECHR. This was carefully considered but the decision of the Senior District Judge was held not be wrong. EAW1 was only withdrawn in the course of that appeal. Breaches of Articles 5 and 6, relating to what were said to be procedural...
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