ON APPEAL FROM THE ADMINISTRATIVE COURT
THE HON. MR JUSTICE GARNHAM
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE LINDBLOM
SIR STEPHEN RICHARDS
| The Queen on the application of:
1) HK (Iraq)
2) HH (Iran)
3) SK (Afghanistan)
4) FK (Afghanistan)
|- and -
|The Secretary of State for the Home Department
David Chirico (instructed by Duncan Lewis Solicitors) for the Appellants HK and FK
Raza Halim (instructed by Barnes Harrild & Dyer) for the Appellant HH
Julie Anderson and Belinda McRae (instructed by Government Legal Department) for the Respondent
Hearing dates: 7-8 November 2017
Crown Copyright ©
Lord Justice Sales:
"Amnesty International cannot, and does not, field witnesses to provide evidence in litigation of this kind. Our reports represent the considered opinion of a variety of specialist researchers from across our organisation and therefore it would not be appropriate for an individual to attend the proceedings to provide evidence orally."
"In providing this opinion our organisation has carefully considered the Upper Tribunal Practice Direction in respect of expert evidence, published on 10 February 2010, and the Civil Procedure Rules (CPR) 35 on expert evidence. We confirm that we have understood our duty to the Tribunal set out in the Practice Direction and CPRs referred to, that we have complied and will continue to comply with that duty. We also confirm that insofar as the facts stated in this report are within our own knowledge we have made clear which they are and believe them to be true, and that the opinions expressed represent our true and complete opinion."
i) The judge wrongly gave overriding weight to the absence of a particular stance by UNHCR (i.e. the fact that after its April 2014 report the UNHCR did not repeat its recommendation of an embargo against returns to Bulgaria under the Dublin Regulation) and failed to give proper weight to the UNHCR's reservations about returns to Bulgaria as expressed in that report;
ii) The judge wrongly discounted the evidence given by the appellants regarding their personal histories and experiences in Bulgaria and their vulnerability as people who had experienced torture or very traumatic experiences in their home countries and in relation to whom (in the case of HK and HH) there were medical reports which indicated they suffered from mental illness in the form of depression and post-traumatic stress disorder ("PTSD");
iii) The judge wrongly relied on parts of the NGO reports which related the formal, theoretical position regarding support for asylum-seekers in Bulgaria (what the appellants characterised as "evidence of aspiration"), rather than placing weight on other evidence that such support was not in fact provided on the ground, and placed excessive reliance on a presumption that Bulgaria would act in compliance with its obligations under the ECHR; and
iv) The judge wrongly took account only of those aspects of the Amnesty International report which supported the Secretary of State's case.
"Haval Khaled ('HK')
25. HK is a national of Iraq. He alleges that he was an Iraqi national of Kurdish ethnicity and that he fears persecution at the hands of ISIS, who consider Kurds to be infidels. His case is as follows: He said his brother was murdered by members of ISIS, and he himself was witness to that murder. He said he travelled overland, through Turkey, before setting out for the UK. En-route, however, he was stopped in Bulgaria. He was assaulted and treated violently and threateningly by Bulgarian officials on the road, and feared for his safety. He was then forcibly fingerprinted and detained for 20 days, first in a police cell, then in a larger prison or detention centre.
26. During that period of detention, he was kept in degrading conditions, notwithstanding his own vulnerability. He was provided with negligible medical treatment (and that on only one occasion) and he was provided with no interpreter save at the time of his release. HK says he has flashbacks and nightmares as a result of having witnessed the murder of his brother and having been ill-treated himself in Bulgaria.
27. On 20 January 2015, HK was apprehended by the police in Barking and admitted entering the UK illegally after having paid £4,000 to come to the UK. Either that day, or the following, he claimed asylum. He was interviewed, fingerprinted and was served with illegal entry papers. The fingerprints were matched with fingerprints taken on 16 December 2014 in Bulgaria.
Hadi Hemmati ('HH')
28. HH is a national of Iran. He claims to have been born on 15 February 1977. His case is as follows: He claims asylum, which he said was based on his apostasy approximately seven years ago, triggered by witnessing a woman being stoned to death in Iran because of alleged adultery. Following an intervention by an Imam, he was referred to the judiciary's officials in Iran; he was consequently arrested on 30 April 2011 and initially detained for three days by police and interrogated. During the interrogation HH confessed to his apostasy and was tortured and beaten. He was then transferred to a prison where he remained for a month before being taken to court. He was told he would be sentenced to death before being returned to prison.
29. One month later HH says he was taken to court again, whereupon, on 1 July 2011, the judge declared that he was not of sound mind and sentenced him to seven years imprisonment. He was tortured on many occasions while in prison. A year and three months into his custodial term he attempted to commit suicide; he cut blood vessels leaving scars on his body. He was imprisoned with political prisoners for the first year of his sentence and kept in solitary confinement for six months. He was then detained with those who had drug addictions. Throughout that period HH was tortured and beaten; he was kept outside in cold weather and beaten with sticks, cables or batons and given electric shocks.
30. HH said that during the latter period of his imprisonment he was permitted to leave the prison for three days, during which time he visited his brother and decided not to return to prison. HH left Iran and went to Turkey where he stayed for 22 days before moving to Bulgaria where he stayed for three weeks in a camp in poor conditions. HH then found an agent who helped him to leave Bulgaria.
31. HH admits that he entered the UK illegally, circumventing immigration controls. HH attended Lewisham police station on 11 February 2015 and was arrested as an illegal entrant. He was interviewed, fingerprinted, served with illegal entry papers and detained. Eurodac evidence revealed that HH had been fingerprinted in Bulgaria on 12 November 2014. On 14 February 2015, HH was released. On 18 February 2015, a formal request was made to Bulgaria to take responsibility for HH's claim. On 17 April 2015, Bulgaria formally accepted responsibility for HH's asylum claim. On 27 April 2015, HH's claim was refused on safe third country grounds.
32. SK is a national of Afghanistan. He says his date of birth is 4 May 1992; the Defendant says his claimed date of birth is 23 April 1994 (nothing turns on the precise date).
33. He claims to have entered the UK illegally on 18 November 2014, circumventing UK immigration controls; there is no official record of date of entry. He made an in-country application for asylum in Croydon on 19 December 2014. He reported to Colindale Police Station on 2 January 2015. On 6 January 2015, SK was interviewed, fingerprinted, served with illegal entry papers and detained. A search of the Eurodac database of 6 January 2015 revealed that he had been fingerprinted in Bulgaria on 10 July 2014.
34. At his screening interview, he did not reveal his time in Bulgaria until confronted with the Eurodac record, at which point he explained that he had spent some two months in the country. He said that his asylum claim was based on his family having fallen foul of a military commander following the death of a person who had bought medicine at their pharmacy. His brother had been taken from that shop and killed. He was also kidnapped and tortured for ransom as his family was rich. He said that he had come to the UK because his sister was here and she was the only person who could understand his pain and problems.
35. On 8 January 2015, a formal request was made for Bulgaria to take responsibility for considering SK's asylum claim. On the same day, ECHR representations were made alleging there would be a breach of Article 3 if he was returned to Bulgaria. On 9 January 2015, a decision was made to release SK in the light of his allegations of torture.
36. In the absence of a response from the Bulgarian authorities, the request was resent on 29 January 2015. The Bulgarian authorities accepted responsibility for SK's claim on 12 February 2015. On 5 March 2015, SK's ECHR claim was refused with an out of country appeal pursuant to certification. On 13 March 2015, removal directions were set. At the same time a notice that his asylum claim was refused was served on him. That took effect on 23 March 2015.
37. On 17 March 2015 SK's advisers sent representations on his behalf setting out his objections to return to Bulgaria. They cited country evidence, by way of reports from Amnesty International, the Sofia Globe, ECRE, Border Monitoring EU and Pro Asyl, which suggested that asylum seekers who returned to Bulgaria faced overcrowding, inadequate nutrition, and violence and racism from the police. They summarised SK's own experiences there: he was detained for some 50 days in overcrowded conditions, before being relocated to a refugee camp where he experienced poor and overcrowded conditions. He witnessed other asylum seekers being mistreated and learned from his fellow residents that asylum claims would take years to process before inevitably being refused. He said he had anxiety attacks throughout his time in Bulgaria for which he received no medical attention.
41. FK is a national of Afghanistan. He says he was born on 23 April 1994. He claims to have a well-founded fear of persecution if returned to Afghanistan.
42. His case is as follows: He says he left Afghanistan in 2014 and arrived in Bulgaria in June or July 2014. He was arrested in a small town in Bulgaria and taken to a police station where he was pushed and shouted at. He had no access to an interpreter. He was kept in the police station for three nights, and then taken to court, where a Farsi interpreter was provided who explained that he was an illegal immigrant. He says he was taken to prison, where he was detained in very poor conditions for 50 days. He was then relocated to a refugee camp far from the town centre, where he remained, again in overcrowded conditions. He says he was aware that one of his fellow asylum-seekers was inhumanely punished while he was in the refugee camp. Whilst in Bulgaria, he was informed that his asylum claim would not be processed for 3-4 years.
43. FK states that he entered the UK illegally, circumventing UK immigration controls, on 18 November 2014. There is no official record of entry. He claimed asylum on 20 November 2014. He made an in-country claim for asylum on 6 January 2015.
44. Enquiries revealed that he had been fingerprinted in Bulgaria on 10 July 2014 where he had claimed asylum. A formal request was made to Bulgaria to take back responsibility for FK's asylum claim on 8 January 2015, which was not rejected within the required period. On 26 January 2015, FK submitted representations seeking temporary admission and challenging the decision to make a request to the Bulgarian authorities. FK's asylum claim was certified on safe third country grounds on 28 January 2015.
45. On 10 February 2015 the Defendant decided to remove FK to Bulgaria; and to set directions for his removal on 23 February 2015. The Dublin claim was formally accepted by Bulgaria on 12 February 2015."
"On 2 January 2014, the Office of the United Nations High Commissioner for Refugees (UNHCR) issued its Observations on the Current Situation of Asylum in Bulgaria, noting systemic deficiencies in the asylum procedure and reception conditions for asylum-seekers in Bulgaria, which had worsened following a large increase in the number of asylum-seekers arriving in the preceding months. UNHCR identified a number of areas where urgent improvements were required, and called for a temporary halt to all transfers of asylum-seekers to Bulgaria under the Dublin Regulation.
UNHCR undertook to reassess the situation as of 1 April 2014. The present paper contains the results of that reassessment and is an update to UNHCR's observations of January 2014. It identifies the numerous improvements that have been made to reception conditions and the asylum procedure in Bulgaria since the beginning of the year, on the basis of which UNHCR now concludes that a general suspension of all Dublin transfers to Bulgaria is no longer justified.
However, despite the progress made by the Bulgarian authorities, serious gaps remain in the national asylum system, a number of which are identified in this update. UNHCR would therefore like to highlight that, while deficiencies are no longer such as to justify a general suspension of Dublin transfers to Bulgaria, there may nevertheless be reasons precluding transfers under Dublin for certain groups or individuals. UNHCR recommends that Dublin participating States conduct an individual assessment as to whether a transfer would be compatible with States' obligations to protect an individual's fundamental rights under European Union (EU) and international law, in particular with regard to asylum seekers who have specific needs or vulnerabilities.
Moreover, given, inter alia, the potentially large number of pending Dublin transfers to Bulgaria, UNHCR is concerned about the medium- to long-term sustainability of the improvements made so far. The Office will therefore continue to closely monitor developments in Bulgaria. In the meantime, this update identifies areas where it is recommended that the Bulgarian authorities take further sustained action to ensure compliance of the national asylum system with EU and international standards. These concern the integrity of the national asylum system as a whole, including, in particular, serious concerns about reported "push-backs" and other measures taken by the Bulgarian authorities as of November 2013 to restrict access to Bulgaria's territory for asylum-seekers arriving from Turkey, whose number has now dramatically decreased."
It went on later to elaborate on the position in relation to asylum-seekers with special needs, as follows:
"ASYLUM-SEEKERS WITH SPECIFIC NEEDS
UNHCR remains concerned about the lack of systematic identification of persons with specific needs, as well as a system to respond to such needs once identified.
SAR [the Bulgaria State Agency for Refugees] introduced a questionnaire for use by their staff for the early identification of asylum-seekers with specific needs, however this questionnaire is not systematically used and only serves to identify victims of trauma. Where specific needs are identified by SAR, their staff does not have the capacity to respond to their needs. Civil society, including the BRC and the Assistance Centre for Torture Survivors (ACET), attempt to bridge the gap, to a certain extent, by identifying people with specific needs, but their efforts bring limited support as they depend on available resources.
Banya has recently been designated as a centre for vulnerable asylum-seekers, particularly women with children, and unaccompanied minors. So far, tailored accommodation units for them have not yet been established, nor are there plans for Banya to receive other groups of persons with specific needs, such as persons with reduced mobility.
As a result of the European Refugee Fund (ERF) funded and UNHCR-led "Response to Vulnerability in Asylum" project in 2013, the Bulgarian authorities are working with UNHCR to implement standard operating procedures (SOPs) for the identification and appropriate response to persons with specific needs."
"81. The UNHCR expressed concern about the lack of systematic identification of persons with specific needs and the lack of any system to respond to any such needs once identified. Accordingly the UNHCR recommendation was that States should conduct an individual assessment, "particularly regarding asylum seekers who have specific needs or vulnerabilities". The Cordelia Foundation also drew attention to the lack of a procedure to assess vulnerability.
82. In my judgment, however, individual consideration by the returning State of the particular vulnerabilities of individual asylum seekers is what English domestic law requires in any event. The UNHCR report simply underlines the importance of those steps. I turn to consider the individual circumstances of these Claimants below."
"119. Thus far, I have considered what the evidence says about the position facing returning asylum seekers in general and that is plainly an important part of my task. But I also have to consider whether the individual circumstances of any of these five Claimants threatens to put them significantly more at risk. Perhaps the most important of those individual considerations is the fact that three of them allege that they have been the victims of torture.
120. As the Defendant points out, publicly available materials (including the Bulgarian Strategy Plans) makes it clear that the Bulgarian authorities take the orthodox approach to the type of individuals who may be considered vulnerable. Bulgaria's asylum law provides a definition of vulnerability which extends to: "children; pregnant women; the elderly; single parents, if accompanied by their children; people with disabilities; and those who have suffered severe forms of physical or psychological harm or sexual abuse".
121. The AIDA report states in terms that in practice the status of a vulnerable applicant is not limited to families with small children. The EASO stocktaking report in 2014 notes that: "EASO offered operational support for the referral of UAM and vulnerable persons starting on 5 February 2014. A mapping out of existing referral procedures for UAM, vulnerable persons and persons with special procedural and reception needs took place and a manual for the identification of vulnerable groups, as well as addressing further needs for reception facilities was drafted. The support will be continued in March/April 2014". The identification of vulnerable persons is also the subject of the EASO special support plan.
122. Referring to the Amnesty International report of February 2016 and the AIDA report of September 2015, complaint is made that there is a failure to provide specialised care, treatment and medication for individuals with complex care needs and that there are no dedicated facilities for treating torture victims and mental health problems. Given the complaints from a number of the Claimants to the effect that they had been victims of torture this latter allegation is of some weight. However, I note that the AIDA report of October 2015 states that: "Asylum seekers are entitled to the same health care as nationals and that Bulgarian law requires the asylum reception centres to cover the health insurance of asylum seekers". The European Migration Network's Annual Report on Migration and Asylum Policy in Bulgaria in 2014 states: "Referral to specialists is available for all persons, including vulnerable groups".
123. In my judgment, viewing the matter as of today, none of these Claimants get close to establishing that a return to Bulgaria would risk exposing them to a breach of Article 3. I see no prospect that a tribunal, properly directing itself and considering the evidence made available to me, would decide otherwise.
124. That is the conclusion I reach viewing matters as of today's date. If anything, the position was even stronger when the Secretary of State made her decisions in these cases. Those decisions pre-dated the February 2016 report from Amnesty International which provided a modest degree of support for the Claimants' case."
Ground (1): alleged excessive weight given to the absence of action by the UNHCR
Ground (2): alleged insufficient weight given to the individual circumstances of the appellants
"Member States shall make provisions on material reception conditions to ensure a standard of living adequate for the health of applicants and capable of ensuring their subsistence."
"Member States shall take into account the specific situation of vulnerable persons such as minors, unaccompanied minors, disabled people, elderly people, pregnant women, single parents with minor children and persons who have been subjected to torture, rape or other serious forms of psychological, physical or sexual violence, in the national legislation implementing the provisions of Chapter II relating to material reception conditions and health care [i.e. including Article 13(2)]".
"This requirement of 'special protection' of asylum seekers is particularly important when the persons concerned are children, in view of their specific needs and their extreme vulnerability. This applies even when, as in the present case, the children seeking asylum are accompanied by their parents … Accordingly, the reception conditions for children seeking asylum must be adapted to their age, to ensure that those conditions do not 'create … for them a situation of stress and anxiety, with particularly traumatic consequences' … Otherwise, the conditions in question would attain the threshold of severity required to come within the scope of the prohibition under Article 3 of the Convention."
Ground (3): reliance on "evidence of aspiration" and excessive weight given to the presumption of compliance
Ground (4): alleged one-sided approach to the Amnesty International report
The Amnesty International report as expert evidence
Lord Justice Lindblom:
Sir Stephen Richards: