Political Asylum vs. Extradition – What is the Difference?

Extradition is the transfer of a person wanted by an arrest warrant to the prosecuting country.

Accordingly, extradition can affect anyone suspected of a criminal offence in a country other than the current country of residence. The state where the alleged offence was committed usually makes an extradition request to the state where the suspect is staying. An international search via Interpol can also be made if the suspect’s whereabouts are unknown.

The asylum procedure is about an application the person concerned submits to a state.

The first step is to check whether the applicant is entitled to asylum. The Federal Office for Migration and Refugees (BAMF) defines those persons as eligible for asylum who would be exposed to a severe violation of human rights if they returned to their country of origin.

In particular, the motivation behind such persecution is considered political if the person concerned is persecuted because of their political views, religious affiliation or sexuality.

While the application is being decided, the person concerned receives a residence permit.

The Universal Declaration of Human Rights is not binding under international law. The rights it contains are, therefore, not enforceable. However, some states have transposed the right to asylum into national law. In Germany, the right to asylum is enshrined in the Basic Law, Art. 16a GG.

Extradition proceedings involve a request by a state to another state or an international request through Interpol.

It is examined whether the criminal charges against the person concerned are conclusive and whether extradition would be compatible with human rights, especially concerning the detention conditions in the requesting state. In doing so, particular attention must be paid to whether:

• The person concerned would face the death penalty in the event of extradition (Section 8 IRG),
• whether torture or other degrading treatment is to be expected (Art. 3 ECHR) and,
• whether the person concerned is to be extradited to a third country and whether it is to be expected that they will be able to leave the country again after serving the sentence (Section 11 IRG).

If there is sufficient suspicion of a violation of the provisions mentioned above or other relevant provisions, extradition is inadmissible and must therefore be refused by the requested state.

While the proceedings are ongoing, the person concerned may be taken into extradition custody to prevent them from fleeing, Section 16 IRG.

Many states, including Germany, have stipulated in their laws that their nationals may not be extradited as a matter of principle.

The granting of asylum does not per se exclude the possibility of extradition.

First, from a practical point of view, it should be noted that when a wanted person is apprehended, even in the context of an extradition request or international arrest warrant, only their identity has to be checked. Whether the person has applied for asylum or whether such an application has even already been granted can only be seen by the authorities at a later stage.

From a legal point of view, reference should be made to Section 6 of the German Asylum Act. Although this provides for the binding nature of the decision on the asylum application, it expressly excludes extradition proceedings from this.

The courts that have to decide on the admissibility of an extradition request are not bound by the decision of the immigration office according to Section 6 AsylG or do not have to wait for such a decision.

The competent court in the extradition case should independently examine whether the danger of political persecution of the person concerned in the requesting state cannot be ruled out so that it would have to declare the extradition inadmissible according to Section 6 IRG. This also means that an incontestable rejection of the asylum application does not permit the court to assess the danger of political persecution independently.

Even without binding effect, a positive decision by the BAMF is still a strong indication of political persecution in the country of origin, so the court deciding the extradition proceedings would have to present strong arguments to declare extradition admissible contrary to the granting of asylum.

In particular, extraditions are carried out despite asylum if the state of origin gives a legally binding assurance that the person concerned will not be politically persecuted.

Even if the person concerned is not a political refugee, they can be granted subsidiary protection under Section 4 of the German Asylum Act.

The person concerned must show that they are threatened with severe harm in their country of origin. Such harm may be the imposition or execution of the death penalty, torture and the like, or another severe individual threat to their life or physical integrity.

Subsidiary protection seekers are explicitly not bound to protection from political persecution according to Section 1 (1) No.2 AsylG.

Accordingly, non-political criminal prosecution can lead to asylum being granted. This is possible after a thoroughly examination of the individual case, at least if the person concerned has been sentenced to death in the country of origin. But even if such a sentence is imminent, subsidiary protection can be granted under Section 4 AsylG.

An assurance by the prosecuting state not to impose the death penalty can only preclude the granting of subsidiary protection if the declaration is binding under international law vis-à-vis the federal government and precedents prove its credibility or diplomatic control options are granted. The assurance is also insufficient if years of inhuman imprisonment are expected instead of the death penalty.

Concerning the threat of torture and other inhuman, degrading treatment, it is not decisive whether torture methods are generally used in a state. Section 4 AsylG does not generally grant subsidiary protection to certain nationals. It always depends on the individual threat to the person concerned.

Those granted subsidiary protection under Section 4 AsylG initially receive a one-year residence permit, which can also be extended after a strict examination.