Reported Case

This case concern Appellants from Afghanistan (SK and FK), Iraq (HK) and Iran (HH) who came to the UK via Bulgaria. They each applied for Judicial Review against the Secretary of State’s decision to remove them to Bulgaria, where it is intended they make their applications for asylum under the Dublin III Regulation arrangements, on the grounds that they risk ill-treatment upon removal to Bulgaria which would be in breach of Article 3 of the European Convention of Human Rights.

Article 3 states that:

"No one shall be subjected to torture or to inhuman or degrading treatment or punishment."

The Appellants were granted permission to judicial review the Secretary of State’s decision refusing and certifying their asylum claims on third country grounds and the decision to remove them to Bulgaria. The substantive judicial review hearing listed in March 2016 before Garnham J. Garnham J handed down his judgment in April 2016 where he held that removing the Appellants to Bulgaria would not breach their Article 3 ECHR rights.

The Appellants applied for permission to appeal to the Court of Appeal and permission was granted on 17th November 2016. The matter was then heard by the Court of Appeal on 7th and 8th November 2017.

The appeal was set to assess whether Garnham J was correct in his judgment that the Secretary of State’s decision to remove the Claimants to Bulgaria would not be in breach of Article 3 ECHR.

The Appellants based their appeal on four grounds against the judgment of Garnham J. These include:

1. Giving weight to the fact that the UNHCR did not repeat their embargo against returns to Bulgaria under the Dublin Regulation following their April 2014 report;
2. Not considering the claimants’ personal histories/ experiences in Bulgaria or their position as vulnerable individuals affected by torture as completely as should have been;
3. Relying too heavily on points made in reports which supported the presumption that Bulgaria’s asylum system treated refugees well; and
4. Using points made in the Amnesty International Report which supported the respondent’s case.

On review of the judgment, the Court of Appeal found that Garnham J had been right to find the evidence used to support the claim for judicial review “clearly unfounded” because the Appellants had taken points from various reports supplied in evidence out of context, which skewed their meaning. The Court also supported Garnham J’s review that by failing to reissue an embargo against returns to Bulgaria the UNHCR was implying that Bulgaria’s asylum system was functioning. The Court also approved of Garnham J’s acceptance of Bulgaria’s definition of vulnerable people, since it included protecting asylum seekers who have been victims of torture. For this reason, the Court found no reason to accept their appeal.

The Court of Appeal was limited to reviewing the judgement of Garnham J and as such the evidence considered was limited to March 2016; it was common grounds between the parties that the judge was required to consider the decision under challenge as well as evidence as at the date of his judgment to determine whether “clearly unfounded” test was satisfied in respect of the Appellants’ Article 3 claims. Despite being unsuccessful at appeal, as the Court of Appeal was limited in their review of evidence to March 2016, there is now scope for distinguishing other cases, as it can be assumed that further evidence provided at a later date could result in a different outcome. The judgment also provides for the provision of Article 3 in such cases, meaning vulnerable individual’s cases will be considered separately on the basis of their own case.

Appellants HK, SK, FK instructed Duncan Lewis Public Law Director, Bahar Ata, in this case. Bahar has a niche practice in immigration and human rights judicial review claimant matters and challenging removals to third countries under Dublin Regulations. She is the lead lawyer in representing lead Claimants in challenging removals to Hungary and Bulgaria under Dublin III Regulations.

 

Find full details of this case on Bailii’s website here.