Supreme Court: Legal basis for surrender of people between Ireland and UK post-Brexit referred to CJEU

Supreme Court: Legal basis for surrender of people between Ireland and UK post-Brexit referred to CJEU

Killian Flood BL

The Supreme Court has referred a case to the Court of Justice of the European Union (CJEU) in which the appellants challenged the legal basis for their surrender to the UK on foot of a European arrest warrant.

The appellants had claimed that the EAW system between Ireland and the UK was invalid because Ireland had not exercised an opt-in to the new measures under Protocol 21 of the Treaty on the European Union.

The appellants submitted that the EAW system came within the scope of the so-called Area for Security, Freedom and Justice, in which Ireland had an opt-in for new measures.

Although Ireland had accepted both the Withdrawal Agreement (WA) and the Trade and Cooperation Agreement (TCA) on post-Brexit relations, it was claimed that the lack of a specific opt-in for the EAW procedure meant that Ireland was not bound by terms in the treaties governing surrender to the UK.


The case arose in the context of Brexit. Under Article 62.1(b) of the WA between the UK and the EU, it was agreed that the EAW procedure would continue for the duration of the transition period, up until December 2020. Title VII of Part Three of the TCA set out the surrender arrangements between the parties for the future, which were identical to the previous extradition arrangements provided for in EU law.

Crucially, pursuant to Protocol 21 (annexed to the Treaty on the European Union), Ireland retained an opt-in to the ASFJ. This opt-in provided for the reservation of Irish sovereignty in respect of these matters, including EAWs.

Both of the appellants in the case, Mr Hasnain Saqlain and Mr Salman Shahzad, were the subject of surrender requests by the UK. Mr Shahzad had an order made for his surrender in February 2021 on foot of an EAW from August 2020, while Mr Saqlain had been arrested in February 2021 but had not completed the surrender application on foot of his appeal.

Both men brought proceedings under Article 40.2 of the Constitution, on the basis that they were being unlawfully detained. The core contention was that the EAW system between Ireland and the UK was invalid because Ireland had not chosen to opt-in to any system between the States pursuant to Protocol 21.

It was argued that the EU did not have competence to bind Ireland to surrender provisions contained in Article 62.1(b) or in Title VII of Part Three in the absence of an opt-in.

In the High Court, the trial judge rejected the submissions made by the appellants. He noted that the WA had been adopted by the EU, including Ireland, under Article 50 TEU. It was the appellants’ case that this should have occurred under Article 82, to which Protocol 21 applied.

The court considered European Parliament v. European Council (Case C-130/10) and held that Article 50 TEU had two objectives. The first was to enshrine the sovereign right of a Member State to withdraw from the European Union. The second was to establish a procedure that enabled this withdrawal to take place in an orderly fashion. The court held that Article 50 provided “supranational competence” to the EU to conclude the WA.

The court held that Article 62.1(b) was not a free-standing new initiative under the ASFJ, but rather just continued the existing surrender arrangements which were consistent with the objective under Article 50 of the orderly withdrawal by the UK. The provisions of Article 62.1(b) were incidental and subordinate to Article 50, the court said.

On the issue of the Title VII of Part Three of the TCA, the court said that Mr Saqlain could not raise this point because it should be raised at the full hearing of his surrender application. However, the court went on to say that Title VII of Part Three was binding on Ireland, because the TCA was an association agreement under Article 217 TFEU and had been signed by the European Council under Article 218 TFEU.

The court held that the TCA provided a new legal framework for the relationship between the UK and the EU but did not provide for a new legal relationship where none had previously existed. The new surrender provisions were the same as the old ones, so the addition of the surrender provisions under Title VII were incidental to the overarching purpose of the TCA.

Supreme Court

The Supreme Court granted a leapfrog appeal in the case on the basis that important issues of EU law were raised by the proceedings. Part of the court’s decision related to whether the appellants were entitled to raise the issues at all. The court held that the issues in the case were so important that it was appropriate to allow the appellants to raise them. On the particular facts of the case, there was no abuse of process in allowing the appellants to raise the points, even if they could have done so at earlier stages in the surrender process.

On the substantive issues in the case, the main consideration of the court was whether to make a referral on the issue to the CJEU. The court said “the real question is as to whether that general competence [under Art. 50 TEU and Art.217 TFEU] can extend to binding Ireland to aspects of either a withdrawal agreement or an agreement concluded under Art. 217 where the agreements concerned involve issues arising in the context of the ASFJ in respect of which Ireland has not exercised an opt in.”

The State relied on several authorities which outlined the proper legal basis for international treaties which had a number of objectives or purposes. It was argued that the principle or dominant purposes of the WA and TCA were to provide for orderly withdrawal from the EU and establish a new relationship between the States. As such, the State submitted that Art. 50 TEU and Art. 217 TFEU provided a basis for binding Ireland to the EAW scheme with the UK.

Counsel for the appellants argued that it would be wrong if the EU could bind Ireland into arrangements within the ASFJ as part of a wider-ranging treaty, particularly where the EU could not bind Ireland if the treaty related to other Member States.


The court held that important issues of national and EU law were raised in the case. If Ireland was bound by the WA and TCA, then the arrest warrant system would apply. However, if it did not, then there was no proper legal basis to surrender individuals to the UK on foot of a EAW.

The court noted that, under CILFIT and Lanificio di Gavardo SpA v. Ministry of Health (Case 283/81), it was required to consider whether the issues were acte claire before referring the matter to the CJEU.

The court held that it was not clear that the EU was entitled bind Ireland in treaties with third states covering the ASFJ on the basis of Art. 50 TEU and Art. 217 TFEU. It was arguable that Protocol 21 applied in the case and required an opt-in from Ireland to be effective, the court said.

The court stated that all treaties were subject to ratification by Member States at a national level. In this regard, the court said that “the existence of relevant protocols may well play a part, and sometimes a significant part, in the debate concerning ratification.” Accordingly, the strength of a protocol could be affected if it could be circumvented in broad, comprehensive agreements.

However, the court also stated that there may be circumstances in which it was permissible for the EU to not require a protocol to be followed. Since Ireland had previously subscribed to the EAW system with the UK and the relevant Brexit agreements sought to continue the pre-existing arrangements, it was arguable that these were important distinguishing factors in the present case.


In light of the court’s analysis, it could not be clearly decided that the EU had competence to bind Ireland into arrangements with the ASFJ with a specific opt-in under Protocol 21. Accordingly, the court decided to refer the question to the CJEU.

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