Extradition Despite Asylum or Refugee Status?

By Dr Julius Hagen, Attorney at Law (Germany)

Protection granted abroad, arrest in Germany

A typical cross-border case begins like this: a person has been recognised as a refugee in France or Italy, is later arrested in Germany, and their country of origin requests extradition. The immediate questions are what effect the foreign protection decision has in the German proceedings and whether the General Public Prosecutor's Office and the Higher Regional Court have received the full reasons and documents underlying that protection. In this situation, the German authority responsible for extradition must also initiate, as soon as possible, an exchange of information with the authority of the Member State that granted refugee status.

Different forms of protection do not have the same legal effect. The analysis must distinguish constitutional asylum in Germany, refugee status, subsidiary protection, a pending asylum claim and protection granted by another state. It must also address the destination state, the criminal allegation and the specific risk of political persecution, inhuman treatment or onward transfer.

Unless continuing refugee status granted by another EU Member State already bars extradition to the country of origin, extradition for an ordinary criminal offence may remain possible despite protection status if the destination does not pose a relevant risk. If the request comes from the persecuting state or there is a risk of onward transfer, Article 16a of the German Basic Law, section 6(2) IRG, Article 3 ECHR, Article 33 of the Refugee Convention and section 73 IRG may prevent surrender. The answer must be based on the request and the actual circumstances of the individual case.

The German court must assess persecution independently

Under section 6 sentence 2 AsylG, an asylum decision is not binding in extradition proceedings. That does not make the asylum decision or the asylum file irrelevant. Their findings, evidence and reasoning may provide important material for the extradition assessment. The Higher Regional Court cannot simply leave the question of political persecution to the asylum authorities.

The Federal Constitutional Court requires the extradition court, where there are relevant indications, to investigate the risk of political persecution itself and comprehensively (BVerfGE 63, 215; Federal Constitutional Court, order of 9 March 2016 - 2 BvR 348/16). Information from the Federal Government may assist the court's assessment, but it does not replace it.

The Higher Regional Court responsible for the extradition proceedings examines under sections 12 et seq. IRG and sections 29 et seq. IRG whether surrender is legally permissible. Where there are concrete indications of political persecution, it must pursue the investigations available to it. A pending asylum application does not generally require the court to wait for a decision by the Federal Office for Migration and Refugees or the administrative courts. The asylum and extradition proceedings may therefore continue at the same time.

Political persecution may be concealed by an ordinary criminal allegation

Section 6(2) IRG is not limited to openly political offences. A request may also be impermissible where the requesting state presents an ordinary criminal case but the real purpose is to persecute the person because of political opinion, nationality, religion, race or membership of a particular social group. Section 6(1) IRG raises the separate question whether the request concerns a political offence or an offence connected with one.

The political setting alone is not enough. The review should address the timing of the proceedings, the person's political activity, the selection of the accused, comparable cases, the reasoning of the warrant, the independence of the courts and the treatment that may concretely follow surrender. Allegations involving terrorism, state security or corruption also require the individual criminal core of the request to be separated from any political purpose.

Non-refoulement and Article 3 ECHR apply without recognised refugee status

Extradition may be impermissible irrespective of asylum status where there is a real risk of torture or inhuman or degrading treatment in the destination state. This follows in particular from Article 3 ECHR and is reflected in German law by section 73 IRG. The relevant risk may arise from prison conditions, ill-treatment in police custody, a defective trial involving a specific human-rights danger or onward transfer to a state where such treatment is likely.

An unsuccessful asylum claim or exclusion from refugee protection does not dispose of this question. The findings from the asylum proceedings must be placed in context, and the authorities responsible for extradition must assess the risks relevant to surrender in the individual case. Conversely, recognised protection status does not remove the need to identify the state and allegation covered by the extradition request.

Asylum, extradition, removal and INTERPOL measures may proceed in parallel

A pending asylum case or a residence position connected with the asylum procedure does not automatically prevent extradition. Section 60(4) of the German Residence Act addresses removal only. Where a formal extradition request, or an arrest request announcing one, exists, removal to that state generally requires the consent of the authority responsible for authorising extradition until the extradition decision has been made. This preserves the priority of the extradition process over removal; it does not decide the permissibility of extradition and does not create a general right to remain in Germany.

An INTERPOL or SIS measure may trigger an arrest or further review, but it is not the German decision on extradition. Requests for access, correction or deletion before INTERPOL and the defence in German extradition proceedings pursue different aims. They should be coordinated so that the political or human-rights connection is not lost between separate procedures.

Documents needed for the review

The initial review will usually require the asylum decision and its reasons, any court decisions and the available material from the asylum file. It should be read together with the extradition request, the foreign or German warrant, the decision on extradition detention, correspondence from the General Public Prosecutor's Office and any authorisation decision.

The facts supporting protection status or showing the risk in the destination state are particularly important: political activity, previous persecution, messages, witness evidence, medical records, detention reports, country material and indications of possible onward transfer. For an INTERPOL or SIS alert, preserve any available notices, contact with the authorities and the time when the person became aware of the measure. Missing documents do not prevent an initial intervention, but they determine what must be requested from the authorities without delay.

We coordinate extradition, asylum and INTERPOL proceedings

We first establish which request is pending, which authority and Higher Regional Court are responsible and whether arrest or surrender is imminent. We then compare the extradition material with the asylum decision, the reasons for protection and the available information about the destination state. The review distinguishes political persecution, human-rights risks, onward transfer and other obstacles under the IRG.

Depending on the procedural stage, we prepare objections in the extradition proceedings, seek the necessary judicial review and maintain communication with the General Public Prosecutor's Office or the competent Higher Regional Court. If parallel asylum proceedings or action concerning INTERPOL data is involved, we coordinate the respective work with the relevant lawyers. Where additional expertise abroad is required, we identify and coordinate suitable local counsel.