Todor Ivanov Atanasov v District Prosecutor's Office, Karlovo, Bulgaria

On an extradition appeal under the Extradition Act 2003, the appellate court must decide whether the district judge’s proportionality decision was wrong. It may stand back and review the overall evaluation, but findings of fact and the district judge’s evaluative judgment ordinarily require respect.

Fresh evidence is admissible only if it was unavailable at the extradition hearing, subject to limited flexibility where necessary to avoid an ECHR breach, and if it would have been decisive. In an Article 8 extradition assessment, the public interest is ordinarily very weighty, although its weight varies with the seriousness of the offending. There is no free-standing exceptionality test, but exceptionally severe family consequences may outweigh that public interest.

The appellant appealed under section 26 of the Extradition Act 2003 against an extradition order made by District Judge Leong at Westminster Magistrates’ Court on 16 November 2021. His extradition to Bulgaria was sought to enforce consecutive custodial sentences totalling two years for public order offending and driving after drug use.

Permission was granted on a single Article 8 ground. The appellant argued that the district judge had misapplied the proportionality test, failed to consider the effect of extradition on his immigration position and family, and placed excessive weight on the public interest in extradition. He also sought to adduce further evidence from his partner. The central issues were whether that evidence should be admitted and whether the district judge’s Article 8 conclusion was wrong.

1. Fresh evidence. The applications to admit the partner’s witness statements and exhibits were refused. The evidence in the first statement could have been given at the extradition hearing. Although a degree of latitude may be appropriate where strict application of section 27 could risk an ECHR breach, the evidence must still be decisive. The evidence added detail about family life, income and the child’s delayed language skills, but did not show an impact beyond the ordinary consequences of extradition or justify a different Article 8 conclusion.
2. Appellate test. Under section 27, the question was whether the district judge ought to have answered the relevant statutory question differently and would then have been required to discharge the appellant. The appellate court could stand back and assess whether the overall evaluation was wrong. It was not entitled to substitute its own view merely because it might have attached different weight to individual factors. Errors or omissions did not necessarily establish that the proportionality decision itself was wrong.
3. Article 8 assessment. The district judge was entitled to find that the delay did not reduce the public interest in extradition, given the finding that the appellant knowingly placed himself beyond the Bulgarian authorities’ reach. The immigration consequences relied upon on appeal had not been raised below and were partly speculative; in any event, the relevant immigration rules contained an Article 8 safeguard.
4. The district judge did not impose an exceptionality test by referring to exceptionally severe consequences. She correctly recognised that extradition commonly causes hardship to families and assessed whether the consequences in this case were sufficiently severe to outweigh the constant and weighty public interest in extradition. She was also entitled to respect the Bulgarian sentences and was not required to substitute a UK view of the appropriate punishment. The appellant’s partner, child, clean UK record and employment had been taken into account.
5. The district judge’s decision was not one that no reasonable judge could have reached, and no factor required substantially different weight. The appeal was dismissed.

• Westminster Magistrates’ Court: District Judge Leong ordered extradition on 16 November 2021.
• High Court (Administrative Court): Permission to appeal was granted on a single Article 8 ground. The appeal and applications to adduce further evidence were dismissed or refused.