Extradition and the EU Settlement Scheme
The EU Settlement Scheme (EUSS) and extradition are distinct legal processes, but they frequently intersect when EEA citizens living in the UK are facing criminal charges abroad. The crossover between extradition and the EUSS is important to consider for individuals who have applied or are in the process of applying under the Scheme while challenging an extradition request simultaneously. Our article examines what happens when these two jurisdictions overlap in practice after Brexit.
What is the EU Settlement Scheme?
The UK left the European Union (EU) on 31 January 2020. This process was called Brexit. As a result of Brexit, and the Withdrawal Agreement that followed, laws were introduced to protect the rights of EEA citizens living in the UK. An EEA (European Economic Area) citizen is a national of any of the 27 European Union (EU) member states, plus Iceland, Liechtenstein, and Norway.
The EU Settlement Scheme (EUSS) was the scheme set up by the government after Brexit to secure the immigration status of EEA citizens in the UK.
People from EEA countries and their family members can apply to the EUSS.
Appendix EU to the Immigration Rules sets out the basis on which an EEA citizen and their family members, and the family members of a qualifying British citizen, will, if they apply under it, be granted indefinite leave to enter or remain or limited leave to enter or remain.
Suitability requirements of the EU Settlement Scheme
Under the EUSS, applicants need to demonstrate that they meet the suitability requirements which look at the applicants’ criminal history. Applicants are required to disclose their criminal records, and failure to do so may trigger a refusal on grounds of deception. All applications are subject to checks against the Police National Computer (PNC) for applicants over the age of 10, the Warning Index (WI) and overseas criminal records check.
The Home Office’s ‘suitability’ guidance states the following in respect of applications under Appendix EU:
‘Applicants (aged 18 or over) are required to provide information about previous criminal convictions in the UK and overseas and are only required to declare past criminal convictions that appear in their criminal record in accordance with the law of the State of conviction at the time of the application.
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Applicants (aged 18 or over) are also required, as in other immigration applications, to declare whether they have any been involved in any terrorist related activities, war crimes, crimes against humanity or genocide.’
Failure to declare such offences is likely to lead to refusal under EU16 of Appendix EU on grounds of suitability.
The ‘suitability’ guidance goes on to state:
‘Where an applicant has declared previous overseas criminality, or a check of the PNC or Border Crossing indicates that an applicant has an overseas conviction, you may wish to make an overseas criminal record check.
Any request for an overseas criminal record check must first be approved by a senior caseworker. Whether an overseas criminal record check is required will depend on the facts of the case.
It may be necessary for that purpose to contact the applicant to obtain further information about their overseas conviction. An applicant may be contacted by telephone or in writing or invited to an interview to provide additional information in person.
Once all the relevant information regarding the overseas criminality has been established, the EU Settlement Scheme (EUSS) application must be progressed and referred to FNO RC (if suitability thresholds have been met).
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Where an applicant has an outstanding arrest warrant from an EU member state or an Interpol alert, you must update the National Crime Agency (NCA) with the details of the applicant as provided on the application (address and contact details) and progress the case for consideration as to whether the applicant satisfies the eligibility criteria. If the person satisfies the validity, eligibility and suitability criteria leave must be granted accordingly. The NCA can independently progress the extradition or arrest warrant as per their own operational processes.’
Extradition from the UK
Extradition is the formal process where one country asks another to return a person in order to stand trial or to serve a sentence. Under multilateral conventions and bilateral extradition treaties, the UK has extradition relations with over 100 territories around the world.
Even if the UK has no extradition arrangement or treaty with a particular territory, it may still be possible or for that territory to make an extradition request to the UK.
The overlap between extradition from the UK and the EU Settlement Scheme
The jurisdictions of extradition and the EUSS could overlap in various instances; we will examine the following two scenarios in our article:
- when an applicant whose extradition from the UK is sought by another state received a grant of leave under the EUSS
- when an applicant whose extradition from the UK is sought by another state has a pending application under the EUSS.
When an applicant received a grant of leave under the EUSS, extradition from the UK does not automatically revoke that leave. However, the Home Office’s ‘suitability’ guidance states:
‘A grant of EUSS leave does not prejudice extradition proceedings.’
Furthermore, the Home Office’s guidance, titled Deportation on conducive grounds Immigration Act 1971 and UK Borders Act 2007 confirms:
‘Government policy is to pursue deportation on grounds of criminality where the person:
- has received an immediate custodial sentence or a suspended sentence of 12 months or more for a single conviction in the UK or overseas
- has received consecutive sentences totalling 12 months or more in the UK or overseas
- has been convicted in the UK or overseas of an offence which has caused serious harm
- is a persistent offender
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… a referral must be made to FNO RC for deportation consideration where a person is already in the UK or is applying to come to the UK and:
- the person has, at any time, received a custodial sentence of 12 months or more for a single conviction for a single offence in the UK or overseas
- the person has been convicted in the UK or overseas of an offence which has caused serious harm
- the person is a persistent offender
- the person is the subject of an existing deportation order, exclusion direction or exclusion order made on criminality grounds
- the person has entered the UK in breach of a deportation or exclusion order and has lodged further representations
- a court has recommended deportation
- the person has been extradited from the UK or is the subject of an extradition request
- the person has been convicted of a criminal offence and received a sentence overseas
- there is compelling circumstantial evidence that the person’s conduct or presence in the UK has caused or is likely to cause serious or high harm
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Foreign National Offender Returns Command (FNO RC) is responsible for considering whether to deport a foreign national offender on grounds of criminality. Where deportation is not possible because for example the relevant deportation threshold is not met, consideration may be given to whether to administratively remove the person under section 10 of the Immigration and Asylum Act 1999.’
These provisions reveal that an EEA national with a history of overseas offending who has been granted status under the EUSS and is also the subject of an extradition request could be considered for deportation.
The above-mentioned guidance goes on to state:
‘It is government policy that surrender of a wanted person through extradition will normally take priority over the removal of that person pursuant to a deportation order’.
Conduct (including any criminal convictions relating to it) before 31 December 2020 is to be assessed according to the EU public policy/public security/public health test, as set out in the EEA Regulations 2016.
Where conduct has occurred both before and after 31 December 2020, the Home Office may either:
- consider the totality of their conduct under the EEA public policy, public security or public health test
- consider only the conduct that occurred after 31 December 2020 on the ground that it is conducive to the public good, and does not rely on the conduct that occurred prior to that date.
In relation to offences from 1 January 2021, Appendix EU applies a lower ‘conducive to the public good’ test to offences that occur after that date:
- There is a presumption of automatic deportation for any offence resulting in a prison sentence of 12 months or more, subject to human rights considerations
- For prison sentences of less than 12 months and other convictions, there is no automatic deportation, but the applicant will be deported if it is deemed “conducive to the public good”.
When the Home Office orders the deportation of an EEA national who has been previously granted status under the EUSS, the deportation order has three effects:
- It requires the person to leave the UK and enables the enforced physical removal of that person
- It prevents the person from returning lawfully to the UK while the order remains in force, and
- It invalidates any leave the person had.
In addition, certain family members of the person facing deportation may also be deported, subject to safeguards.
A deportation order does not expire by itself after a certain time; it remains in place until it is revoked or quashed by a court or tribunal. Most people will need to apply to have their deportation order revoked. If a deportation order is revoked, this does not have the effect of restoring previous leave, even if the person has remained in the UK during the period of the deportation order.
However, an EEA national who has been previously granted status under the EUSS will be permitted to return to the UK after serving their sentence abroad, provided extradition will not result in the person’s absence from the UK for more than 5 years and no deportation order was issued.
In relation to an applicant whose extradition from the UK is sought by another state has a pending application under the EUSS, the Home Office’s guidance, titled EU Settlement Scheme: EU, other EEA and Swiss citizens and their family members Version 31.0 states:
‘If the person is the subject of a pending prosecution which may result in deportation
action being taken if the person is convicted, but at the point of consideration the person does not fall to be refused on suitability grounds, the EUSS application must be progressed and, if all validity, eligibility and suitability criteria are met, the relevant leave must be granted. If that person is subsequently convicted, deportation action may then be considered and, where a deportation order is made, this will invalidate the leave under section 5(1) of the Immigration Act 1971.’
Furthermore, the Home Office’s guidance, titled EU Settlement Scheme: suitability
Requirements Version 13.0 confirms:
‘Where an applicant has an outstanding arrest warrant from an EU member state or an Interpol alert, you must update the National Crime Agency (NCA) with the details of the applicant as provided on the application (address and contact details) and progress the case for consideration as to whether the applicant satisfies the eligibility criteria. If the person satisfies the validity, eligibility and suitability criteria leave must be granted accordingly. The NCA can independently progress the extradition or arrest warrant as per their own operational processes.’
An EEA national’s pending application under the EUSS will not be automatically refused because their extradition from the UK is sought by another state. As explained above, the Home Office guidance confirms that conduct is assessed in accordance with the suitability requirements of Appendix EU to the Immigration Rules:
‘The assessment of suitability must be conducted on a case by case basis and be based on the applicant’s personal conduct or circumstances in the UK and overseas, including whether they have any relevant prior criminal convictions, and whether they have been open and honest in their application.’
It is important to note that having an EUSS application pending or granted does not act as an automatic barrier to extradition. However, EEA extraditees with status or pending applications under the EUSS can demonstrate stronger ties to the UK, making it harder to justify their extradition. Therefore, the EUSS and the Immigration Rules are clearly relevant to the Article 8 balancing exercise in extradition in the post-Brexit landscape, but there is still much legal ground to cover where the two jurisdictions overlap and how they play out in practice after Brexit.
