Claudio Lopes v Judicial Court of the District of Lisbon West (Portugal)

1. The appellant, a 33-year-old Portuguese national, appeals from the decision of District Judge Pilling on 28 January 2025 ordering his extradition to Portugal, a part 1 territory, on a conviction warrant issued on 22 April 2024 and certified by the National Crime Agency on 21 May 2024,

2. The appellant was arrested on 23 May 2024 and remanded into custody where he remains.

3. At his extradition hearing, the appellant argued that his extradition would be disproportionate and an interference with his right to private and family life protected under article 8 of the European Convention on Human Rights. The district judge concluded that his extradition would be compatible with article 8 ECHR and ordered his surrender to the respondent judicial authority pursuant to section 21(3) of the Extradition Act 2003 .

4. On 14 April 2025, McGowan J gave leave to appeal on the papers.

5. The extradition offence was a street robbery carried out by the appellant and another on 2 March 2012. Particulars of the offence are given at box E of the extradition warrant. The victim, a young woman, was assaulted on the street and robbed of a gold necklace valued at EUR 500. The victim said that she would call the police, at which point the appellant punched her in the face causing her to fall to the ground. She required hospital treatment.

6. The appellant was convicted and sentenced to three years' imprisonment. His appeal was dismissed. He left Portugal and came to the United Kingdom in late 2012, knowing that he was under investigation and in contravention of the requirement upon him to keep the authorities informed of his whereabouts. The district judge found him to be a fugitive from justice since his arrival in the United Kingdom, a finding which he does not now challenge.

7. Owing to time spent on remand since his arrest on 23 May 2024, the remaining period of custody which the appellant has to serve, if he is returned to Portugal, is currently one year and ten months.

8. His precise immigration status is not in evidence before the court, but it is not suggested he would experience any difficulty in returning to live in the UK having served the remainder of his sentence in Portugal.

9. The appellant was aged 19 when he committed the offence for which his extradition is requested. He is now aged 33 and has not reoffended since 2012. Since he came to live in the United Kingdom, he has developed a well settled private and family life in this country. He is the father of five children, the two eldest with a former partner who live in Manchester; and the three youngest, now aged 11, 9 and 4 years, with whom he lives with his wife at the family home in Corby. The appellant continues to maintain close contact with his two eldest children and visits them regularly. He provides some financial support. He is a committed and much loved husband and father to his wife and three youngest children, with whom he has a close relationship.

10. Both the appellant and his wife gave oral evidence at his extradition hearing before the district judge. The district judge was also assisted by a careful and balanced psychological report, following an assessment made by a consultant psychologist of the appellant's wife and his three young children in August 2024.

11. The issue in this appeal is whether the district judge was wrong to conclude that the appellant's extradition was proportionate to and compatible with his and his family's right protected under article 8 ECHR. In [31] and [32] of her judgment, the district judge directed herself in accordance with the principles established in Norris v United States of America (No 2) [2010] UKSC 9 ; [2010] 2 AC 487 ; H(H) v Italy [2012] UKSC 25 [2013] 1 AC 338 ; and Polish Judicial Authority v Celinski [2015] EWHC 1274 (Admin; [2016] 1 WLR 551 . Those well-known authorities establish that, in a case in which a child's rights and interests are affected, the child's best interests are a primary consideration. Those interests must be weighed carefully in the balance in reaching an overall conclusion whether the extradition of a parent, particularly a primary carer, is compatible with article 8 ECHR. However, there is no test of exceptionality. The court will consider each case on its specific facts. It must evaluate the impact of extradition on article 8 rights against the important public interest in the United Kingdom honouring its international obligations. In both Norris and HH, the Supreme Court stated the strong public interest in those convicted of crimes being required to serve their sentences and that the United Kingdom should not be seen as a safe haven for fugitive offenders. That point was emphasised by the Divisional Court in Celinski.

12. More recently in Andrysiewicz v Circuit Court in Lodz (Poland) [2025] UKSC 23 ; [2025]1 WLR 1733 at [43], the Supreme Court reiterated the position as stated in those earlier cases . "Cases in which a submission founded on article 8 ECHR may defeat the public interest in extradition will be rare. It is most unlikely that extradition will be held to be disproportionate on the ground of interference with private life. Even in cases where interference with family life is relied upon, it will only be in cases of exceptionally severe impact on family life that an article 8 ECHR “defence” will have any prospect of success".

13. In [33] and [34] of her judgment, the district judge considered the balancing factors weighing in favour of and against the extradition of the appellant to Portugal to serve his remaining sentence. "Factors in favour of extradition.

33. In favour of extradition, I find that there are the following factors: (1) the constant and weighty public interest in extradition, including the very high public interest in ensuring that the UK honours its treaty obligations to other countries and that the decision of the JA to make an extradition request should be accorded a proper degree of mutual confidence and respect; (2) the RP is a fugitive. It is important that the UK is not seen as a safe haven for those seeking to avoid being prosecuted or serving their lawfully imposed punishment; (3) he has been convicted of a serious involving violence to the victim and has a significant sentence of imprisonment to serve. Factors against extradition:

34. Against extradition, I find the following factors: (1) the RP has a well settled private and family life in the UK; (2) the offence is old, committed when the RP was 19 years old and he has not committed any offences since; (3) there would be interference with the protected rights of the RP’s wife, ex-partner and each of his five children".

14. The district judge's evaluation of these various factors were set out at [35] to [42] of her judgment: "35. As the RP is a fugitive, the life he has built in the UK has been built in the knowledge he was evading the proceedings in Portugal. The family life he has established involves five young children, four of whom were born in the UK, but all who have only known life in this country. They all attend school or nursery and there are no additional needs identified for any, save for the youngest being monitored for ASD. There is no evidence that the mothers have not been able to manage in the absence of the RP since his remand in custody in May 2024.

36. I accept the evidence of Dr Shallow in respect of her diagnosis of the RP's' wife, based on her assessments from August 2024. Ms Santos however was unaware that she had been diagnosed with major depression and has not needed to receive any treatment such as therapy or medication. In assessing her evidence to me, I have concluded that despite the diagnosis and prognosis of Dr Shallow, she has been able to manage in her daily life. While it would be preferable for her to have the support and assistance of the RP, there is no evidence that she is struggling, financially or otherwise, in his absence.

37. The RP is deeply involved in the lives of all his children, whether he lives with them or not. He has been making significant effort to see his children with Ms Veiga, travelling to Manchester regularly to spend time with them. He contributes financially when he is able.

38. Dr Shallow set out the detail in her report of the involvement of the RP in the daily lives of [his three youngest children], the impact upon each of them since his remand in custody and the likely impact if he were to be extradited. It is clear that they have strong family bonds and that the children will suffer greatly if the father were to be away from them for longer than he has been already,

39. This, sadly, is the reality for most children who experience the separation of parent who is remanded in custody for committing a criminal offence. In this case, the offence was committed before any of the children was born and the RP has been living a hardworking and law abiding life in the UK. However, I cannot ignore the fact that the RP is a fugitive and was aware that he was at risk of being prosecuted in his absence after he left Portugal without providing any way for the authorities to contact or locate him. If he was not a fugitive, the weight given to the impact on the children would be much greater.

40. Having conducted the balancing exercise, these factors against extradition carry less weight and do not, in my assessment, outweigh the public interest factors identified in favour of extradition, most significantly the RP's deliberate decision to leave Portugal shortly after the facial recognition procedure in 2012.

41. I have concluded that, sadly, there is nothing out of the ordinary or particularly grave or serious that would result from the extradition of the RP. There is no restriction on the children being taken to visit the RP, there is extended family in Portugal and no evidence that he would not be able to return to the UK in due course.

42. In all the circumstances, the extradition of the RP will not disproportionately interfere with any person's right to respect for family life and is compatible with the Convention rights".

15. In this case, the appellant was represented by Ms Louisa Collins and the respondent by Mr Thomas Williams. I am grateful to them both for their helpful written and oral submissions.

16. Ms Collins submitted that the district judge's assessment revealed three errors. Firstly, it was submitted that in [41] of her judgment, the district judge had applied the wrong test. I do not accept that there is any force in this submission. In [41] the district judge was simply explaining that, in her judgment, the impact of his removal to Portugal to serve his remaining sentence was not disproportionate in its effects on the appellant, his wife and his children. She had in mind Lady Hale's guidance in H(H); and the recent reiteration by the Supreme Court in Andrysiewicz that only in cases of exceptional severity is the public interest in extradition of the requested person likely to be overridden. She was contrasting what she saw as the essentially, ordinary circumstances and impact of extradition in the present case with the kind of circumstances which, on the guidance given by the Supreme Court, would be likely to justify the discharge of a requested person on article 8 grounds in the extradition context.

17. The third error, on Ms Colins' submission, was that at [39] of her judgment, the district judge failed to give sufficient weight to the impact of separation. She was wrong simply to align the appellant's absence for the duration of his remaining sentence with that of a prisoner in the United Kingdom. It was submitted that, in the case of the appellant, his absence in Portugal would mean, in practice and in reality, that neither his wife nor his children would see him for the entire duration of his remaining sentence and until he returned to the United Kingdom, having served that sentence. That was the position because his wife and children lacked the financial resources to enable them to travel to Portugal to visit him whilst in prison in that country, over the remaining period of his sentence.

18. Again, I do not consider that there is any force in that complaint. It seems to me that in [39] the district judge had well in mind that the appellant would be absent in Portugal; and that might make it more difficult for his family to visit him as compared to the position of a person reporting in the United Kingdom. I see no reason to conclude that she lost sight of that consideration in writing that paragraph as she did. True it is that in [41], she said there was no restriction on the children being taken to visit the appellant in Portugal, but that does not detract from the explanation which I have just given. She was making a different point that, were it possible in practice for members of his family now resident in the United Kingdom, including his children, to travel to Portugal to visit him, there would be no restriction on them doing so. For those reasons, I reject the third of Ms Collins' submissions.

19. The second ground, however, has greater force. Ms Collins says that the district judge failed to give proper weight to the findings of the psychological report. It is clear, and I accept, the district judge saw no reason to find fault with that report or to diminish the weight to be given to its findings. It is also true, as I have indicated, that the interests of the appellant's children are a primary consideration to be given appropriate weight in considering the balance of factors arising under article 8 ECHR. Ms Collins referred me to certain passages in the psychologist's report. As I have said, that report was completed following interviews with the appellant's wife and the two eldest of his three children with whom he lives in Corby, in August 2024. That was some three months after he had become absent from the family home, having been remanded in custody in late May 2024. I should read those particular pages from the opinion of the psychologist on which Ms Collins placed particular reliance. "Question (c): the likely effect on the child of any change in the child's circumstances. A significant change in the children's circumstances, such as their father’s extradition, would likely have profound and potentially long-lasting effects on them. The absence of their father has already caused noticeable distress, particularly for [his son], who has become more withdrawn and less communicative. [His daughter], though outwardly more composed, has expressed deep sadness and concern about the impact on her family. The youngest child's increased anxiety about separation indicates that any further disruption could exacerbate his emotional and behavioural challenges, particularly in light of his potential autism diagnosis. If their father were to be extradited, the child would likely experience increased emotional instability, anxiety and possibly even depression. The disruption of their routine, the loss of their father's daily support, and the increased burden on their mother would likely to lead to further emotional and psychological difficulties. This could manifest in worsening academic performance, increased behavioural issues and long-term emotion scars. Question (d): any harm which the children have suffered or are at risk of suffering. The children have already begun to suffer harm as a result of their father's absence. [His son's] withdrawal and anxiety are early indicators of emotional harm, while [his daughter's] sadness and concern reflect the psychological strain she is under. The youngest child's increased fear of separation and emotional distress are particularly concerning, given his age and developmental stage. The risk of further harm is significant if the children are forced to continue without their father’s presence. The emotional and psychological strain on the children could deepen, leading to more severe mental health issues, The family's overall stability is at risk, which could further exacerbate the challenges the children face, particularly in their educational and social development. Additionally, the increased stress on their mother, who would be solely responsible for their care, could further diminish the emotional support available to the children, compounding their difficulties. In conclusion, the children's physical, emotional and educational needs are deeply connected to their father's presence and the stability he provides. Any change in their circumstances, particularly his potential extradition, is likely to have severe and lasting negative effects on their wellbeing. The harm they have already suffered due to his absence is significant, and the risk of further harm is substantial. Question (e): the emotional impact on the wife. Claudio's partner faces considerable emotional strain due to the current situation. Her mental health has been deeply affected by Claudio's absence, as reflected in the clinical indications of major depression. She is experiencing heightened levels of distress, anxiety and sadness, which are compounded by the burden of managing the household and caring for the children on her own. Her role has shifted significantly, from a shared partnership in parenting and household responses to a situation where she bears the full weight of these responsibilities. The prospect of Claudio's extradition would exacerbate her emotional distress. She would face increased financial and logistical challenges, as she has already had to rely on benefits due to her inability to work while managing the children's needs alone. The additional emotional toll of Claudio's potential permanent departure to Portugal could lead to a sense of overwhelming loss and frustration, potentially leading to further deterioration in her mental health. The absence of her partner could also intensify feelings of isolation and helplessness, affecting her ability to cope effectively with daily challenges".

20. Ms Collins acknowledges that that final reference to the potential for the appellant's permanent departure to Portugal was perhaps overstated, although I think entirely innocently, by the psychologist. Subject to that, Ms Collins submits that the district judge, particularly in [38] of her judgment, did not properly engage with these findings. She submits that the overall balance struck by the district judge was clearly wrong in light of the findings of the psychologist. She summarised the position in her skeleton argument by reference to ten factors, which she said weighed against extradition in the present case. They were as follows: (1) the appellant's well-established family life in the UK; (2) the severe and lasting negative effects on the wellbeing of the three children in the family home; (3) the detrimental impact and interference with the rights of his two children who live in Manchester; (4) the decline in the mental health and wellbeing of his wife; (5) the emotional, financial and practical loss of support provided by the appellant to his wife; (6) the age of the offence, which dates back some 13 years when the appellant was only l9 years old; (7) the absence of any other offending history; (8) the clear positive change in the appellant since the offence, including his close bond with his children and his involved parenting responsibilities; (9) the fact that this appellant has now spent 1 year and 2 months in custody and has, therefore, received a period of punishment in this matter; and (10) he was unlikely to see his children and family for the period of his extradition.

21. There is obvious force in those submissions. The impact of continuing absence will be a serious hardship to the appellant's wife and children. The offending is of some age. He has built an honest and decent life since arriving in the United Kingdom. However, as Mr Williams submitted, the interests of his children and family life are a primary but not the only consideration. There remains a strong public interest in bringing fugitives from justice to account. This was undoubtedly a serious offence and, in my judgment, not much diminished by either the appellant's age at the date of offending or the time that has passed since the offence was committed.

22. In order to intervene under section 26 of the 2003 Act , I must be persuaded that the district judge was wrong in her overall conclusion. She saw the balance as being in favour of extradition. Despite Ms Collins' persuasive submissions, I am unable to conclude that she was wrong. This is not a case, in my judgment, of exceptional severity for the appellant, his wife and children. During his time in prison in Portugal, the appellant’s wife will continue to parent their children. She will receive state support, as she does now; and she has access to the services of the National Health Service for her depression, if she requires it. The same is true of the youngest child should his potential autism develop further. On the basis of the material before the court, the appellant will return to the family home once he has completed his remaining sentence, following his extradition for that purpose to Portugal.

23. In the passages to which I have referred in [35] to [42] of her judgment, the district judge reflected on and took account of each of the ten factors on which Ms Collins relied in her submissions. She clearly gave proper consideration to findings of the psychological report on the impact of the appellant’s continuing absence on his wife and children. I am unable to say that the judge ignored or failed to give appropriate consideration or weight to those factors. The balance to be struck was primarily for her. I am unable to find that she was wrong in her overall conclusion, that extradition of this fugitive offender to serve his substantial remaining prison sentence for a serious offence of street robbery would not be disproportionate in this case.

24. For those reasons, the appeal must be dismissed. __________ Epiq Europe Ltd hereby certify that the above is an accurate and complete record of the proceedings or part thereof. Lower Ground, 46 Chancery Lane, London WC2A 1JE Email: [email protected]