AC-2024-LON-001762 - [2025] EWHC 2293 (Admin)

Fecha: 11-Sep-2025

The Claimant’s argument

90.

Mr Cooper submitted that the SSHD’s apparent practice of not allowing representations to be made in this type of case, and the fact that she did not do so in this particular case, were unlawful and procedurally unfair. Here, he said, the context includes serious consequences for the Claimant in the event of extradition to the USA instead of his home country given his likely psychological deterioration in the event of the former, and his high risk of suicide. The SSHD’s decision also had implications for the support which the Claimant would receive from the State as a person with autism and a victim of modern slavery and, more generally, from family and friends. The SSHD’s decision-making should have been informed by representations and evidence as to these issues.

91.

The Claimant has also adduced expert evidence, in the form of a legal opinion dated 11 June 2025, to show that in Portugal he would be entitled to essential psychological support as a victim of modern slavery, as Portugal is a signatory to the ECAT and there is relevant domestic legislation to give effect to Article 12. He would also likely be remanded on bail. The Claimant also relies on evidence from a US attorney that support of this nature would not be available to him in the US, which is not party to the ECAT, and that he would be remanded in custody in any event with limited access to mental health support. This point and the associated expert evidence could and would have been put before the SSHD by the Claimant had he been given the opportunity to do so.

92.

Mr Cooper submitted that there is nothing in the Extradition Act 2003 which expressly or impliedly excludes this aspect of the duty to act fairly. On the contrary, the statutory scheme permits representations to be made under section 179 which, in any event, is a desirable aspect of the SSHD’s Tameside duty and is conducive to better quality decision making, as the present case illustrates (see, further, Grounds 2-5 below). The lack of any right of appeal from a decision under section 179 also renders the need to be permitted to make representations before the decision all the more important.

93.

As to practicalities, Mr Cooper submitted that:

In the ordinary course the 2003 Act provides, in effect, that where a requested person consents to extradition no order will be made until the SSHD has made the decision under section 179: see section 51(3). The statutory deadlines for an order and removal under sections 46(6) and 47(3) therefore will not be triggered and the SSHD will not be under specific time constraints, albeit the statutory intention is that the process should not be delayed. The position was only different in the present case because of the procedural error in relation to District Judge Snow’s decision of 6 March which has now led to that decision being quashed in the context of Claim 2.

ii)

The Submission is also inaccurate in stating to the Minister that a decision had to be made by the SSHD on 15 March 2024. On 14 March, Portugal had applied for an extension of the 10 day period for removal pursuant to section 47(3) of the 2003 Act. On 15 March that application was granted by District Judge Rai, who had ordered that there be no extradition until proceedings in respect of the Request had been concluded.

iii)

Although section 51 only applies where extradition is consented to, in other cases where extradition is ordered the requested person will only be discharged if they make an application to be discharged on the basis that the relevant statutory deadline has not been complied with: see sections 35(5), 36(8) and 47(4) (Part 1 cases) 99(2), 117(3) and 118(7) (Part 2 cases). It is therefore open to the SSHD to seek an undertaking from the requested person not to apply to be discharged before a specified time as a condition of considering any representations which the person wishes to make in relation to the section 179 decision. At [92] of the Statement of Facts and Grounds it is also pleaded that there is a longstanding practice of the SSHD to afford requested persons an opportunity to provide an undertaking of this sort so as to facilitate the consideration of representations.

94.

Mr Cooper also submitted that the lawful exercise of the SSHD’s discretion is beyond the scope of the appeal to the High Court in relation to the Request, which is concerned only with District Judge Sternberg’s approach to extradition to the USA. There are separate and new human rights considerations to be assessed under section 179, where one request/warrant may be more proportionate than the other, and where extradition to one State risks human rights violations whereas extradition to the other could protect the same rights. The District Judge is required to focus on the merits of extradition pursuant to the particular warrant or request under consideration. Jay J also appeared to take the view, in refusing permission, that arguments based on the availability of extradition to Portugal were not relevant to the appeal in relation to the Request. Even if that is wrong, District Judge Sternberg could not take these arguments into account in the present case as the Warrant had not been issued at the time of his decision. And even if, contrary to the view of Jay J, the arguments may be raised on appeal the Claimant would need to show that the subsequent developments were such that they would have led the District Judge to reach a different conclusion (see section 104(4) of the 2003 Act). This is a high threshold.

95.

Mr Cooper added that a fair process would also allow Portugal (and presumably by extension the USA) to make representations. Such a process would give the two countries with a mutual interest in a successful prosecution an opportunity to discuss and agree between themselves which country should proceed first, thereby removing the need for the SSHD to adjudicate on the issue. In the event that the two requesting States did not agree, the SSHD would be furnished with accurate factual information from both states with which to make a final decision. Discussion between the competing States is also envisaged by the SSHD’s own policy on Competing Requests (see [8] of Annex A which is set out at [64], above).