Asylum and extradition: what happens when the two procedures point in different directions?

The Council of Europe has recently returned to a question that extradition practitioners encounter with uncomfortable regularity: what happens (or, rather, should happen) when the person whose surrender is sought has also asked for, or already obtained, international protection?

At its meeting of 22-24 September 2026, the restricted group of the Committee of Experts on the Operation of European Conventions on Co-operation in Criminal Matters (PC-OC Mod) examined replies from 25 delegations to a questionnaire on asylum and extradition. It is the first time that the issue has been discussed since almost a decade ago.

Its preliminary assessment identified a need for greater clarity. It proposed that the plenary commission prepare a summary for examination in early 2027, with practical guidance and a possible working group to follow.

The initiative is absolutely timely. The difficult relationship between asylum and extradition concerns the distribution of responsibility between authorities that may examine overlapping risks at different moments, on different evidence and under different procedural rules. A person can be the subject of a favourable extradition judgment while the asylum authorities are still investigating the danger of return to the very State requesting surrender.

Merely describing the two proceedings as independent leaves the decisive question unanswered: who must resolve that risk before the person is handed over?

The main approaches in the State replies

The replies to the PC-OC Mod questionnaire are worth reading alongside the recent case law, because they disclose different approaches to pending claims. For instance, Austria reports no automatic suspension, leaving the extradition court to assess bars to extradition independently. Germany similarly emphasizes separate procedures, although domestic asylum findings carry substantial evidential weight.⁠ Other States more clearly postpone surrender until the asylum procedure has ended. This is the general approach described by Switzerland and the United Kingdom, subject in the latter to limited exceptions under Part 1 of the Extradition Act. Czechia distinguishes the judicial examination of extradition, which may proceed, from the Minister’s decision, which must await the final outcome of the first asylum procedure, including judicial review.⁠

Switzerland’s reply also stands out for its attention to the exchange of evidence, as the authorities are required to consult the other procedure’s file. It provides a practical and pragmatic example of how separate proceedings can be coordinated.⁠

These differences help explain why the question is often framed too broadly. Continuing to examine an extradition request while an asylum claim is pending does not necessarily mean that the person can be handed over before that claim is resolved. But, equally, requiring the authorities to wait before surrender does not necessarily prevent them from dealing with the other conditions for extradition in the meantime. Much depends on the stage at which the protection question must be answered and on which authority is expected to answer it.

There appears, therefore, to be no one-size-fits-all answer to how asylum and extradition proceedings should interact.

We will now examine these three scenarios in more detail – where an asylum claim is pending, has been refused or has been granted – with a particular focus on Italy. As we will see, the answers are often quite different from what one might expect.

The Italian approach to parallel asylum and extradition proceedings

Italian case law generally treats asylum and extradition as independent proceedings.

The Court of Cassation has consistently held that extradition proceedings need not await the outcome of proceedings for international protection. An application for protection does not justify suspending the extradition proceedings or refusing surrender while the application is pending (Court of Cassation, VI Criminal Division, judgments no. 33858/2025, Cotos; no. 29910/2019, Touji; and 19392/2020, Hoxhaj). The same applies where a judicial appeal has been lodged against a refusal of protection (Court of Cassation, Sixth Criminal Division, judgment no. 21908/2026, decided on 5 March 2026; see also Vacation Division, judgment no. 29786/2026 of 4 August 2026).

In the Court’s reasoning, the independent scrutiny of fundamental rights entrusted to the Court of Appeal and, on appeal, to the Court of Cassation – which exceptionally also reviews the merits under Article 706 of the Code of Criminal Procedure – allows extradition proceedings to continue independently of any parallel protection proceedings.

The same approach has been applied in the context of the European arrest warrant (EAW) (Vacation Division, judgment no. 29786/2026, cited).

Under Italian law, ordinary extradition proceedings nevertheless comprise a judicial phase followed by an administrative phase. During the former, the courts examine the legal conditions for extradition, including compliance with Articles 698 and 705 of the Code of Criminal Procedure. During the latter, the Minister of Justice considers whether to exercise the discretionary power to refuse extradition on grounds relating to the State’s essential interests under Article 697. In Cotos, the Cassation expressly identified this subsequent stage as the point at which a later recognition of international protection may be considered by the Minister, in the exercise of the powers conferred by Article 708.

The problem, however, is that the administrative case law places considerable emphasis on the examination already conducted by the criminal courts. In Council of State judgment no. 5019/2021, the Ministry argued that the judicial phase already provided the appropriate forum for examining the human-rights concerns underlying the protection application. The Council of State accepted that reasoning and confirmed that extradition could proceed despite a pending asylum claim. TAR Lazio adopted substantially the same approach in judgment no. 2326/2022: the safeguards afforded during the judicial phase allowed extradition to proceed despite unresolved protection proceedings, without requiring the Minister to await their outcome.

Administrative review also generally excludes reopening the criminal courts’ findings on the legal conditions for extradition. As the Council of State reiterated in judgment no. 3095/2024, a challenge to the ministerial decree concerns defects in that decision and does not provide a further opportunity to contest the earlier extradition judgment.

Read together, these positions reveal an apparent contradiction. The Cassation points to the Minister as the authority able to consider a subsequent recognition of protection, while the Ministry, supported by the administrative courts, relies on the criminal courts’ earlier assessment to justify proceeding. The reasoning risks becoming circular, because the judicial phase points forward to a safeguard available at the ministerial stage, while the administrative phase points back to judicial scrutiny already completed.

The two positions can be reconciled only if the same matters were truly examined at the judicial stage and there are no new developments. A later protection decision, or new evidence of risk emerging from the asylum proceedings, may raise questions that the extradition court never had the opportunity to assess. For the reference to the Minister’s powers to offer a meaningful safeguard, those developments must receive effective consideration before surrender. Otherwise, the independence of the proceedings would leave a gap in protection, particularly where the asylum decision arrives only after extradition has been granted at the judicial stage.

The refusal of asylum still calls for an independent assessment

An unsuccessful asylum claim raises a different problem: the temptation to treat the refusal as confirmation that the person can safely be returned.

The Italian court’s position has always been that the independence of the two procedures allows the extradition court to draw on findings made in the asylum proceedings. In particular, a decision refusing international protection may be taken into account when assessing whether the person would face the treatment prohibited by Article 698 of the Code of Criminal Procedure (Court of Cassation, judgment no. 29910/2019, Touji).

However, the Italian courts have also clarified the refusal of international protection does not dispense with the criminal court’s own assessment of the consequences of surrender for the requested person’s fundamental rights, as reaffirmed in Court of Cassation, Sixth Criminal Division, judgment no. 9951/2026, decided on 11 February 2026. 

There are good reasons for maintaining this distinction. Refusal of refugee status does not necessarily resolve every objection to surrender, as also explained by the UNHCR’s guidance. The distinction also follows from the absolute nature of Article 3 ECHR. In Saadi v. Italy, the Grand Chamber rejected the argument that a risk of ill-treatment could be weighed against the individual’s dangerousness. National security concerns neither justified accepting such a risk nor permitted a higher standard of proof to be imposed on the person facing return.

In K.I. v. France, decided on 15 April 2021, the European Court considered the position of a person whose refugee status had been withdrawn following a terrorism conviction. It held that returning him to Russia without a full and current examination of the alleged risk would violate Article 3 in its procedural aspect. The case concerned deportation, but the reasoning is relevant to extradition too: the loss of formal status does not dispense with examining the consequences of return.⁠ 

An asylum refusal can therefore be relevant without being conclusive. A subsequent extradition assessment may involve different evidence, a more specific account of the proposed detention conditions or events occurring after the asylum decision. Relying on the refusal without examining its reasons risks overlooking precisely those differences and turning the extradition proceedings into a photocopy of the asylum procedure.

Protection already granted and its effect on extradition

The position is different again where protection has already been granted. One might expect recognition to settle the matter, but even here the answer is far from straightforward.

The traditional Italian approach has emphasized the extradition court’s independent assessment even where protection has been recognized. The criminal courts may base a refusal of extradition on a decision granting subsidiary protection because of a risk of inhuman or degrading treatment, provided they consider its findings “complete, certain and reliable” (Court of Cassation, judgment no. 19392/2020, cited). Recognition is thus treated as an important element in the assessment, while the extradition court retains responsibility for reaching its own conclusion.

That approach continues to appear in recent decisions. In judgment no. 22874/2026, decided on 14 May 2026, the Cassation upheld a favourable extradition judgment concerning an Afghan national who had obtained subsidiary protection in Italy. Extradition to Bosnia and Herzegovina was conditional on guarantees against his subsequent removal to Afghanistan and on his not being detained in Republika Srpska. The Cassation upheld extradition, noting, among other things, that the defence had itself requested the non-return condition as an alternative to refusal and had not explained how the decision recognizing subsidiary protection was relevant in the context of extradition.

However, we want to believe that destination is important here. The request concerned extradition to Bosnia, not return to Afghanistan. The protection decision raised, in particular, the question of onward removal to the country of origin (indirect refoulement). The judgment should, thus, not be read as establishing that Italy could simply disregard the protection granted and extradite the person directly to Afghanistan.

A more stringent rule emerges from the CJEU’s Grand Chamber judgment of 18 June 2024 in Generalstaatsanwaltschaft Hamm, C-352/22. The case concerned a Turkish national whose extradition was sought by Türkiye from Germany and who had obtained refugee status in Italy. Germany could not authorise extradition to his country of origin while the Italian refugee decision remained in force, and was required to consult the Italian authorities. Even withdrawal of that status would not automatically permit extradition: Germany would still have to establish that the person was not, or was no longer, a refugee and that surrender would not expose him to a serious risk prohibited by Article 19(2) of the Charter.

Although Hamm concerned recognition by another Member State, its reasoning also raises questions about the traditional Italian approach to refugee status granted domestically. The concern that extradition might effectively undo recognition while bypassing the procedures for withdrawing it would appear relevant in that setting too. The judgment therefore calls for a closer examination of the limits of the extradition court’s independent assessment.

The position becomes less clear for temporary and subsidiary protection, to which recent Italian judgments have taken different approaches.

In Pauk, judgment no. 26811/2025, decided on 16 July 2025, Ukraine sought the extradition of a Ukrainian national who had obtained temporary protection in Portugal. Drawing on Hamm, the Cassation held that the Italian court could not itself disregard that protection. It required consultation with the Portuguese authorities to establish whether the protection prevented extradition and whether Portugal intended to exclude the person from its benefit. If extradition remained possible following that exchange, an updated assessment of detention conditions in Ukraine would also be necessary.

A narrower approach appears in judgment no. 21653/2026, decided on 8 April 2026. This again concerned extradition to Ukraine, but the person had obtained subsidiary protection in Poland after refugee status had been refused. The Court of Appeal had contacted Poland to seek confirmation that the protection remained in force, but had received no reply. The Cassation nevertheless upheld the favourable extradition judgment. It accepted that the Polish decision reflected an earlier assessment of the conflict and did not address the specific detention arrangements and assurances subsequently supplied by Ukraine. Although the defence invoked both Hamm and Pauk, the Court held that the CJEU’s rule concerned refugee status and did not extend to subsidiary protection.

This latter decision is hardly reconcilable with the earlier judgment.

Temporary and subsidiary protection have different legal bases. Pauk itself acknowledged that temporary protection afforded more limited protection against return. The later judgment’s reliance on the distinction between refugee status and subsidiary protection does not fully explain why the concern about overriding another Member State’s decision should carry less weight in the latter case. The uncertainty probably lies in how far the safeguards recognized in Hamm extend beyond refugee status, and when an extradition court may reassess the risks underlying a protection decision that has not been withdrawn.

The matter, in our view, is far from being finally settled.

The remaining need for coordination

UNHCR has long advocated coordination between separate asylum and extradition procedures. Its 2008 guidance recommends that, where extradition to the country of origin is sought, the asylum procedure should be completed, including the available appeal, before the extradition decision is taken.⁠ The State replies to the PC-OC Mod questionnaire show that this is not a uniform description of European practice.

This is where the Council of Europe’s proposed work could be useful. In practice, a court may know that an asylum claim exists without knowing the evidence supporting it. A ministry may receive the outcome of the claim without the reasons. An authority asked to reconsider surrender may regard the matter as already settled by another body. Giving each authority access to the relevant findings, and identifying who must act on a later development, would address a recurring difficulty that general references to procedural independence leave unresolved.

Naturally, limits would need to exist as to the information that can be exchanged. In particular, coordination within the requested State or with the State that granted protection must preserve the confidentiality of the asylum claim where the requesting State is the alleged source of persecution, a concern also addressed in UNHCR’s guidance.⁠

Coordination remains necessary also after the protection decision and its effects on subsequent extradition procedures.

We will follow the Council of Europe’s work with interest. Clear guidance on who must consider new information, when that assessment must take place and how surrender can be suspended would be a valuable outcome. The effectiveness of protection ultimately depends on those questions being resolved before the person is handed over.