London: An inadvertent legal confirmation that Vijay Mallya has applied for asylum in Britain came on Friday from none other than his own lawyer appearing for him in a financial claims case.
Mallya has made a claim to be paid his legal fees and other living expenses from the sale of his luxury estate in France last year. That money lies currently in the jurisdiction of the court. Judgment on that is to follow the arguments presented virtually in court but it was the side remark that drew attention.
The virtual confirmation came through Mallya’s barrister Philip Marshall. He spoke in response to a question by deputy judge at the Insolvency and Companies Court Nigel Barnett on where Mallya stands in relation to extradition proceedings.
The court was told that Mallya has lost his extradition case and all possible appeals over it. But Mallya is “still here” because he’s now on “another route”, Marshall said. That, he said, was through “an appeal to the Secretary of State for status.” In other words, an asylum application.
These are not words that could have another meaning. The word “asylum” is only common shorthand for an appeal to the Secretary of State for continued stay.
CNN News18 had reported exclusively last year that Mallya has applied for asylum in the UK. The Guardian newspaper in Britain followed up with a report along similar lines that Mallya had applied for asylum in Britain.
The official British government position, repeated often now, is that Mallya’s extradition has been delayed because of a legal matter has arisen that is described as a secret. The UK government says it is working to resolve this at the earliest, but cannot comment further because the matter is confidential.
The UK authorities are legally right to take that position publicly. Under the British law, an asylum claim must remain confidential. Any disclosure from the government would actually damage the case to bring Mallya back to India, and win him the right to refuse return. Any official breach of confidentiality could turn out to be an argument to get asylum. For UK officials to say nothing is right by British law, but right also for India’s effort to get Mallya back at the earliest.
Playing for Time
The former alleged king of good times is unlikely to succeed eventually in his asylum application. But the processing of his application is clearly winning him time. His current strategy appears to be to gain time if he can’t win a case. He has the option to set up several legal roadblocks to resist return. Past a first assessment by the Home Office, these include an appeal to the Home Office for a review, and then on a Tier 1 judicial appeal, followed by a Tier 2 judicial appeal.
Mallya lost under the extradition law, but the right to seek asylum – through an appeal to the Secretary of State - and for that appeal to be heard, and then judicially reviewed, is a separate law. Mallya leaped from invocation of one law to seek protection, or at least delay, under the other. The Indian case for an early return of Mallya when it thought it had him, collapsed between the two stools. The second may still not be the last.
The last legal card that Mallya could play if he loses out on all appeals over his asylum claim is an appeal to the European Court of Human Rights. That right is still open to Mallya – that court has not been killed off by Brexit. Brexit has ended only the jurisdiction of the European Court of Justice that has jurisdiction over disputes among European Union countries.
That recourse to the European Court of , Human Rights is also almost certain to fail and it ultimately has done nothing to stop Mallya playing for time -- successfully so far. Finally after all the layers of appeal within Britain have been exhausted, and if the European Court of Human Rights also rejects his moves to block extradition – as it is likely to – the ball goes back to Home Secretary Priti Patel.
There on Mallya has still another card left to play – he can seek to block physical extradition on health grounds. His lawyers have been preparing that case all through the extradition proceedings in the Westminster Magistrates Court. They have argued he is in poor health and the proposed detention facilities in India are not good enough to look after him. The Home Secretary would have to take a final call based on the medical reports she is given after all legal appeals are exhausted. Disputing these could itself take time.
In the meantime, Mallya has been seeking, and getting, money through the courts to pay for his lifestyle, and to pay his legal fees while he contests the legal aim. He currently gets an allowance for 22,000 pounds (about Rs 22 lakh) a month from his assets through a court arrangement. That is besides far more that he is claiming and getting for his legal fee.
His Indian creditors lost through a fraud they allege, and are now in effect paying Mallya the fees for him to block every move they make.