Pension fraud suspects use ECHR to fight deportation

A divorced couple accused of a £26m South American pension fraud have used the European Convention on Human Rights (ECHR) to avoid being extradited from Britain.

The European couple, who came to Britain 18 years ago, are alleged to have been involved in money laundering and defrauding a state pension fund in Paraguay out of the money.

The couple – who cannot be named for legal reasons – have been on the run since 2012, when an Interpol warrant was issued for their arrest and the Paraguayan government sought to extradite them to stand trial for the alleged fraud.

They have fought their removal from the UK since their arrests in 2015, through a series of court appeals and tribunal hearings, on the basis that the prison conditions in which they would be held in Paraguay would breach their article three rights under the ECHR. Article three protects against inhuman or degrading treatment.

Over the decade, they lost every appeal until finally an upper immigration tribunal accepted that their declining medical conditions and new evidence casting doubt on Paraguay’s assurances over the prison conditions meant their case needed to be re-heard in full.

Shabana Mahmood is seeking to reform article three of the ECHR, which protects against inhuman or degrading treatment – Toby Melville

The case will reinforce calls by opposition parties for the UK to quit the ECHR and for Labour to press ahead with plans to limit the right for migrants to lodge multiple appeals by introducing new evidence at different stages of the legal process.

Shabana Mahmood, the Home Secretary, is seeking to reform article three of the ECHR to prevent migrants using it to claim that poor prison conditions or inadequate medical care in a foreign country gives them the right to avoid deportation and remain in the UK.

In the hearings, Paraguay insisted it would provide the couple with special secure accommodation to ensure they are kept away from the general prison population during their detention pending their trial.

These assurances satisfied the judge at Westminster magistrates’ court, who was told that the husband, known only as MS, would be held in a unit run by a Christian charity away from the main prison population in the notorious and violent Tacumbú jail in Asunción.

His ex-wife, known only as EG, would be held in a “senior citizens pavilion”, a distinct area of the Buen Pastor women’s prison in Paraguay, which has bigger cells and amenities such as a shower, toilet, refrigerator, and air conditioning.

The couple appealed against the magistrate’s decision initially and unsuccessfully to the High Court before lodging an appeal with the lower immigration tribunal, which was also rejected because of Paraguay’s assurances.

In summer 2021, they made a further appeal to the lower immigration tribunal on the basis that there had been significant changes in their claim on three grounds.

They submitted expert evidence that the level of violence in the prisons, including organised crime, had increased dramatically, the level of healthcare available had diminished, and their health had deteriorated.

‘Real risk of violation’

“Against the background of the Covid-19 pandemic, the [couple] submitted that these matters cumulatively amounted to a material change in circumstances and that there was now a real risk of a violation of article three should they be removed to Paraguay,” court documents recorded.

The court was told that Buen Pastor prison had closed, casting doubt on Paraguay’s assurances over the treatment of EG, while MS had suffered a heart attack while undergoing surgery.

Two gangs had also come to ascendancy, both of which could pose a threat, particularly to EG. One had a reputation for kidnapping and holding wealthy individuals to ransom.

The upper tribunal accepted that the lower court had made “errors of law” in failing to assess the new claims and that a careful evaluation of all of the evidence now needed to be carried out.

The case was referred back to a lower tribunal to be reheard.