Babar Ahmad, one of five terror suspects facing imminent extradition, is seeking a high court injunction to prevent his removal to the United States.
His claim will be heard at the Royal Courts of Justice on Tuesday alongside similar applications from two of the other men, Khaled al-Fawwaz and Kamel Mustafa – who is better known as the Islamist cleric Abu Hamza.
Lawyers for the remaining two, Syed Talha Ahsan and Adel Abdul Bary, are understood to be trying to lodge claims opposing their extradition.
Last week the European court of human rights in Strasbourg rejected further appeals to its upper chamber, agreeing with an earlier ruling that the men’s human rights would not be violated by the prospect of life sentences and solitary confinement in an American “supermax” prison.
The decision cleared the way for their deportation following an eight-year battle through the British and European courts. The Home Office believes the decision should have exhausted legal avenues and is preparing to send them to the US.
Confirmation of Ahmad’s application came from a spokeswoman for the Judicial Office. The grounds of his application are that the director of public prosecutions, Keir Starmer QC, must be given more time to consider whether or not a private prosecution against him and Ahsan can go ahead in the UK.
Tuesday’s hearing will be before Sir John Thomas, president of the Queen’s Bench Division, and Mr Justice Ouseley.
Ahmad, 38, has been held in detention without trial since 2004. His family said: “We are simply asking for the court to put a hold on Babar’s extradition so that the DPP has the necessary time and space to make a decision on the material provided to him in April 2012 which was kept hidden from him by the police for eight years.
“The DPP has confirmed that he is considering this material in addition to the request by Mr Karl Watkin for permission to privately prosecute Babar in the UK. We trust that the court will find that this is a reasonable request which is both in the public interest and the interests of justice.”
A spokesperson for the Crown Prosecution Service said: “A request for consent to a private prosecution of Babar Ahmad and Talha Ahsan for offences under the Terrorism Act was received by the Crown Prosecution Service on 7 September. The request and the relevant material are being carefully considered.”
Legal sources suggested the home secretary, Theresa May, has discretion over whether or not to suspend an extradition order even if a private prosecution has begun.
Labour’s justice spokesman, Sadiq Khan, has supported calls for Ahmad to be prosecuted in the UK for his alleged involvement in an extremist website.