Overview
With the United Kingdom's withdrawal from the European Union on 31 January 2020 and the end of the Brexit transition period on 31 December 2020, the extradition regime between Germany and the United Kingdom changed fundamentally. Since 1 January 2021 (provisional application) and 1 May 2021 (final entry into force), the Trade and Cooperation Agreement between the EU and the United Kingdom (TCA) governs extradition relations. The relevant provisions are found in Part 3, Title VII TCA.
The European Arrest Warrant no longer applies in German–British relations. The TCA creates a self-standing surrender regime that is modeled on the EAW procedure but conceptually distinct, with its own grounds for refusal and procedural time limits.
Of particular importance: on the basis of its notification under the TCA, published in the Official Journal of the EU of 6 April 2021 (C 117 I), the Federal Republic of Germany declared that German nationals will not be extradited to the United Kingdom. Article 16(2) of the Basic Law applies.
Legal basis
Extradition to the United Kingdom is governed primarily by the Trade and Cooperation Agreement between the EU and the United Kingdom of 30 December 2020, published in OJ EU L 149 of 30 April 2021. The extradition provisions are found in Part 3 (Law enforcement and judicial cooperation in criminal matters), Title VII (Surrender).
The TCA surrender procedure is structurally based on the EAW but contains key differences: nationality as a ground for refusal (Art. 603 TCA), a proportionality review, an extended review of dual criminality for certain categories of offenses, and specific human-rights clauses. The 1957 European Convention on Extradition no longer applies subsidiarily in German–British relations.
Domestically, the IRG applies, in particular in the version created by the act implementing the TCA procedure. The general provisions of Sections 1 ff. IRG apply on a supplementary basis where the TCA contains no more specific rule.
Country-specific issues in the United Kingdom
British criminal law and criminal procedure differ in key respects from the continental European model of proceedings. Arrest warrants in the United Kingdom are issued by Magistrates’ Courts, District Judges or judges of the Crown Court. Particularly relevant is the “warrant for non-appearance at trial,” which is frequently the basis of British requests.
The German notification under the TCA excludes the extradition of German nationals (Article 16(2) of the Basic Law). For Union citizens who are not German nationals, the ECJ case law on Petruhhin and Pisciotti must be observed: the home state must be informed as a priority and given the opportunity to take over the prosecution.
Cooperation on information sharing has been significantly curtailed since Brexit. The United Kingdom no longer has access to the Schengen Information System II (SIS II), Europol data or ECRIS. British requests therefore rely on Interpol and direct bilateral communication.
Detention conditions and the human-rights review
Detention conditions in the United Kingdom in principle meet European minimum standards. The United Kingdom remains subject to the supervision of the ECtHR; the ECHR is a treaty basis, although its status in domestic law under the Human Rights Act 1998 has for years been the subject of political debate.
Reports by the CPT and the Council of Europe have in recent years documented at times considerable problems in individual British facilities — in particular regarding overcrowding in English and Welsh prisons and lengthy pre-trial detention in certain categories of proceedings. In individual cases the ECtHR has found violations of Article 3 ECHR.
The death penalty has been abolished in the United Kingdom (Protocol No. 13 to the ECHR ratified); Section 8 IRG therefore does not apply.
Lines of defense
The defense against British extradition requests under the TCA focuses on several points:
- Nationality reservation (Art. 603 TCA, Article 16(2) of the Basic Law): for German nationals, the general bar to extradition applies.
- The Petruhhin scenario: for Union citizens of other EU states, the home state must be informed and involved as a priority.
- Dual criminality (Art. 599 TCA, Section 3 IRG): unlike under the EAW, this is reviewed outside the list of offenses — a point of attack in particular for British conspiracy offenses, which frequently have no equivalent in German law.
- Fairness of the proceedings: procedural rights in the English common-law system, in particular regarding judgments in absentia and disclosure problems.
- Rule of specialty (Art. 625 TCA, Section 11 IRG): expressly safeguarded under the TCA regime, but to be monitored in practice.
- Proportionality: unlike the EAW Framework Decision in its original version, the TCA contains an express proportionality clause that can be put to good use, especially in cases of minor offenses.
Legal representation in UK extradition proceedings
An extradition case is a specialized mutual-legal-assistance procedure that goes beyond classic criminal defense. Engaging a defense lawyer specialized in extradition law at an early stage is regularly decisive — not only after the formal extradition arrest warrant has been issued, but already from the moment of an arrest based on an Interpol notice, an SIS alert or a European Arrest Warrant.
As a Certified Specialist in Criminal Law with a focus on extradition law, I advise and represent affected persons nationwide before the competent Higher Regional Courts and in constitutional complaint proceedings before the Federal Constitutional Court.