QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| "KHALED v SSHD No 1" (1) CO/2899/2015 The Queen on the Application of Havel Khaled ("HK")
(2) CO/3267/2015 The Queen on the Application of Hadi Hemmati ("HH")
(3) CO/1367/2015 The Queen on the Application of SK
(4) CO/843/2015 The Queen on the Application of FK
(5) CO/6016/2015 The Queen on the Application of Hidayat Haji Dyar ("HD")
- and -
Secretary of State for the Home Department
Julie Anderson and Belinda McRae (instructed by the Government Legal Department) for the Defendant
Hearing dates: 1st – 2nd March 2016
Crown Copyright ©
Mr Justice Garnham :
The Procedure and the Evidence
Time Estimate and Material before the Court
The Admissibility of Expert Evidence: the Amnesty International Report
"Amnesty International cannot, and does not, field witnesses to provide evidence in the investigation 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."
"no order was obtained from the court for expert evidence to be adduced. Had an application been made for such an order it is very likely it would have been refused. At the very least, if the application was allowed, the defendant would have been on notice that expert evidence was to be received by the court and would have had a fair opportunity to seek to obtain an expert report of her own…."
i) Did the Secretary of State act unlawfully in certifying as clearly unfounded the Claimants' claims that their removal to Bulgaria would be contrary to their rights under the ECHR?
ii) Have the Claimants established that removal to Bulgaria is likely to result in their refoulement to their home countries?
Haval Khaled ("HK")
Hadi Hemmati ("HH")
Hidayat Haji Dyar ("HD")
The Legal Framework
"The aim behind the CEAS was the establishment of a complete body of rules, founded on respect for international law, including the principle of non-refoulement. The examination of an asylum claim is restricted to one member state, and transfer of the asylum seeker to the state responsible for processing the claim, if asylum is sought elsewhere. Dublin II governed the mechanisms and provides the criteria for determining which Member State was responsible. There are common basic standards, and an important aim is to reduce secondary movements caused by disparities in standards."
The Approach of the ECHR
"No one shall be subjected to torture or to inhuman or degrading treatment or punishment."
"103. The applicant had an arguable claim that to return him to Afghanistan would breach his article 2 and 3 rights. The ECtHR then went on to consider whether Belgium "should have rebutted the presumption that the Greek authorities would respect their international obligations in asylum matters" (judgment, paragraph 344). The ECtHR referred to a number of reports which showed that there were practical difficulties in the application of the Dublin system in Greece, deficiencies in the asylum procedure and a practice of direct or indirect refoulement. The ECtHR also attached "critical importance" to a letter sent by the UNHCR to the relevant Belgian minister, asking him to suspend transfers to Greece (judgment, paragraph 349)...
104. The ECtHR held that 'the general situation was known to the Belgium authorities' (judgment, paragraph 352). As for assurances given by Greece to Belgium, the mere existence of domestic laws and international obligations were not of themselves an adequate protection against the risk of ill treatment where 'reliable sources have reported practices resorted to or tolerated by the authorities which are manifestly contrary to the principles of the Convention'. Diplomatic assurances were not enough (judgment, paragraphs 353 and 354). While the normal course of action might be for applicants to be required to issue applications only against Greece, applications lodged there were 'illusory'. The ECtHR concluded, on this limb of the case, that 'the Belgian authorities knew, or ought to have known, that [the applicant] had no guarantee that his asylum application would be seriously examined by the Greek authorities. They also had the means of refusing to transfer him' (judgment, paragraph 358). In that situation, it was for the Belgian authorities not to assume that Greece would comply with its obligations, but 'on the contrary, to verify how the Greek authorities applied their legislation on asylum in practice'. If they had done so, they would have seen that the risks faced by the applicant were 'real and individual enough to fall within the scope of article 3' (judgment, paragraph 359)...
105. The ECtHR then dealt with the article 3 risks arising from conditions of detention and living conditions. The ECtHR dealt shortly with this head of claim. It said that the test was whether 'substantial grounds have been shown for believing that the person concerned faces a real risk of being subjected to torture or inhuman or degrading treatment or punishment in the receiving country'. It referred to the fact that it had already found (when considering one of the applicant's article 3 claims against Greece) that the applicant's detention and living conditions in Greece were 'degrading'. These facts were 'well known… and freely ascertainable from a wide number of sources'. By transferring the applicant to Greece, the Belgian authorities 'knowingly exposed him to conditions of detention and living conditions that amounted to degrading treatment' (judgment, paragraphs 365 and 366). At that stage, there were 1000 reception places for 'tens of thousands' of asylum seekers, as I have already mentioned.
106. It is necessary to consider how the Court approached the article 3 claim against Greece based on living conditions. It said that article 3 cannot be interpreted as obliging the Contracting Parties to provide everyone with a home; nor does it entail a general obligation to give refugees help in order to enable them to maintain a particular standard of living (judgment, paragraph 249). However, 'the obligation to provide accommodation and decent material conditions to impoverished asylum seekers has now entered positive law'. The Greek authorities were bound by their own law which transposes obligations imposed by EU law. The applicant's case was that because of Greece's 'deliberate acts or omissions' he had not in practice enjoyed those rights, nor had he had provided for him his essential needs. The Court attached great importance to the applicant's status as an asylum seeker and 'as such, a member of a particularly underprivileged and vulnerable population group in need of special protection'. It noted the broad consensus at the international level about the need for this (judgment, paragraph 250 and 251).
107. The Court had to consider whether 'a situation of extreme material poverty can raise an issue under article 3'. It said that for a number of months, the applicant's situation had been 'particularly serious'. He 'allegedly spent months living in a state of the most extreme poverty, unable to cater for his most basic needs: food, hygiene, and a place to live. Added to that was the ever-present fear of being attacked and robbed, and the total lack of any likelihood of his situation improving' (judgment, paragraphs 252-254). The Court said that according to the Council for Europe Commissioner for Human Rights, the UNCHR, and reports of NGOs, this situation 'exists on a large scale and is the everyday lot of a large number of asylum seekers with the same profile'. There was therefore no reason to question the truth of his account (judgment, paragraph 255).
108. There were only 1000 places in reception centres for tens of thousands of asylum seekers. During February to March 2010, all Dublin returnees questioned by the UNHCR were homeless. A large number lived in parks and disused buildings (judgment, paragraph 258). The Court also rejected an argument that access to a 'pink card', which in theory enabled the applicant to work made a difference, as the reports revealed that in practice access to the job market was 'riddled with administrative obstacles'. The applicant had other problems: he could not speak Greek, had no support network and the economic climate was unfavourable. His asylum application had still not been considered by the Greek authorities (judgment, paragraphs 261-2).
109. In the light of this, and of the Greek Government's obligations under the Reception Directive, the Court considered that Greece had not had due regard to the applicant's vulnerability as an asylum seeker, and must be held responsible for the fact that he was living in the street for several months, with no resources and no access to sanitary facilities, and with no means of providing for his essential living needs. He had been the victim of 'humiliating treatment showing a lack of respect for his dignity'. That would have aroused in him 'feelings of fear, anguish, or inferiority, capable of inducing desperation'. It held that 'such living conditions, combined with… prolonged uncertainty… and the total lack of any prospects of his situation improving' attained the 'level of severity required to fall within article 3 of the Convention' (judgment, paragraph 263)."
i. Where an immigration decision was made (such as a decision to remove an illegal entrant, as was the case in respect of the present Claimants) there was a right of appeal to the tribunal (Section 82 NIAA 2002).
ii. Such an appeal will be in-country if certain preconditions apply, including if a Human Rights Act claim has been made (see Section 92 NIAA). Otherwise, the appeal has to be brought from abroad.
iii. Where the decision is made in the context of a removal to an EEA member state, the provisions set out in Schedule 3 to the 2004 Act apply.
iv. The protection against removal provided by Section 77 of the 2002 Act is suspended where the Secretary of State certifies that the individual is not a national or citizen of the member state in question (Schedule 3 paragraph 4).
v. Whether the relevant decision maker is the executive, or a court or tribunal, these states are to be treated as ones where a person's life or liberty would not be threatened for a "convention reason", and which would not send a person onwards in breach of either of the Refugee Convention or the ECHR.
vi. Where that certificate proposes removal to one of these states, the asylum seeker may not bring an appeal from within the UK based on an allegation that removal there would contravene the Refugee Convention or the ECHR (Schedule 3 Paragraph 5(3)).
vii. Where the allegation, on the other hand, is based on a ECHR challenge which is not about refoulement (e.g. conditions on reception or in detention in the destination Member State), then an in-country appeal might be brought unless the Secretary of State exercises her discretion to certify as clearly unfounded (Schedule 3 Paragraph 54).
"159. The nature of the Secretary of State's role when issuing a certificate similar to a certificate under paragraph 5(4) of the 2004 Act was considered by the House of Lords in R (Yogathas and Thangarasa) v Secretary of State for the Home Department  UKHL 36;  1 AC 920 These appeals concerned the removal of asylum seekers to Germany under the Dublin Convention. The certificate at issue in that case was a certificate under section 72(2)(a) of the Immigration and Asylum Act 1999 that an applicant's human rights claim was manifestly unfounded. That test of course, and significantly, is very similar to the ECtHR's 'manifestly ill-founded' test.
160. The House of Lords held that the Secretary of State has to give careful consideration to the allegations, the grounds on which they are made, and any material adduced in support of them. The question for the Secretary of State is whether the allegation is so clearly without substance that it must clearly, or is bound to, fail. This is a screening process rather than a full merits review, and its extent depended on the nature and detail of the case presented by the applicant.
161. The court's role on a challenge to such a certificate was also considered. The court should subject the Secretary of State's decision to the most anxious scrutiny. This issue was revisited by the House of Lords in ZT (Kosovo) v Secretary of State for the Home Department. This appeal concerned a certificate under Section 94(2)(a) of the 2002 Act that asylum and human rights claims were 'clearly unfounded'. Again this test is very similar to that applied by the ECtHR.
162. Lord Phillips concluded that 'In this context there was some debate as to the approach that should be adopted by the court when reviewing the Secretary of State's decision. Must the court substitute its own view of whether the claim is clearly unfounded, or has no realistic prospect of success, for that of the Secretary of State or is the approach the now familiar one of judicial review that involves the anxious scrutiny that is required where human rights are in issue. ZT is seeking judicial review and thus I would accept that, as a matter of principle the latter is the correct approach'.
How does a claimant show that there is a real risk of a breach of article 3?
163. An allegation that a claimant will suffer a breach of his article 3 rights if returned to a second state is an allegation which requires him to show that there are substantial grounds for believing that his removal would expose him to a real risk of being subjected to torture or to inhuman or degrading treatment or punishment. The assessment must focus on the foreseeable consequences of removal in the light of the circumstances of the country to which removal will take place, and of the applicant's personal circumstances.
164. There is a difference between an article 3 claim made ex post facto, on the basis of events which have already happened, and an article 3 claim based on future risk. In the former case, the fact of the breach is enough, and whether it is the result of wider problems may not matter at all. In the latter case, it is by definition easier to show a risk the more widespread a problem can be shown to be in the receiving country; compare the approach of the ECtHR in MSS to the article 3 claims against Greece and against Belgium. It can be seen that the presumption of compliance was not considered relevant to the assessment of those claims against Greece, which depended only on an evaluation of what had happened to the applicant in fact."
Threatened Breach of Article 3 ECHR and Article 4 of the Charter
i. They point to NGO reports in 2014 recommending that returns to Bulgaria be suspended.
ii. They make complaint about the limited reception capacity available in Bulgaria. They assert that the increased number of asylum seekers in Bulgaria raises questions as to whether asylum claimants will be effectively registered, managed and accommodated on return.
iii. They complain about conditions in reception camps and in Bulgaria generally; about overcrowding in reception centres and lack of food; about a climate of endemic racism both in officialdom and society; about a lack of language classes and a lack of accessible healthcare.
"It seems to us that there was a reason for according the UNHCR a special status in this context. The finding of facts by a court of law on the scale involved here is necessarily a problematical exercise, prone to influence by accidental factors such as the date of a report, or its sources, or the quality of its authorship, and conducted in a single intensive session. The High Commissioner for Refugees, by contrast, is today the holder of an internationally respected office with an expert staff (numbering 7,190 in 120 different states, according to its website), able to assemble and monitor information from year to year and to apply to it standards of knowledge and judgment which are ordinarily beyond the reach of a court. In doing this, and in reaching his conclusions, he has the authority of the General Assembly of the United Nations, by whom he is appointed and to whom he reports. It is intelligible in this situation that a supranational court should pay special regard both to the facts which the High Commissioner reports and to the value judgments he arrives at within his remit."
Suspension and Evidence of Improvement
i. "Asylum claims are being processed in a timely manner";
ii. "Bulgaria's law providing for mandatory legal aid for asylum-seekers";
iii. "The Bulgarian authorities' work towards the establishment of a new integration programme… [and] the commitment of the Bulgarian authorities to provide access to family reunification";
iv. "The efforts of the Bulgarian authorities to counter xenophobic incidents";
v. "The significant improvements in Bulgaria with regard to registration, the processing of request for international protection and the overall reception conditions for asylum-seekers in the reception centres";
vi. "Conditions observed in the centres have improved significantly in comparison with the situation observed in December 2013".
"there may… be reasons precluding transfers under Dublin for certain groups or individuals" and recommended that States "conduct an individual assessment… in particular with regard to asylum-seekers who have specific needs or vulnerabilities."
"At the end of January 2015 SAR signed a co-operation agreement to the benefit of protection seekers with 12 NGOs. Among those, there were legal aid providers (Centre for Legal Aid Voice in Bulgaria and the re- instated Legal Clinic for Refugees and Migrants), some grassroots organisations of Syrians and Palestinians, as well as newer associations for protection of refugees and other vulnerable groups. SAR committed to facilitate the access of representatives of the organisations to the persons, seeking protection while the NGSs reiterated their commitment to support and protection of foreigners, residing in SAR centres."
"With the support of EASO and other stakeholders involved, the report shows that Bulgaria has taken concrete steps to improve its asylum and reception system for offering protection to those in need."
"Following EASO's extensive training of, and other support to, SAR staff, the registration process has been streamlined and takes place within 48 hours of the arrival of an asylum-seeker at the reception centres of Sofia, Banya and Harmanli and in the Transit Centre Pastrogor. According to SAR, there is no longer a backlog for the registration of applications for international protection for persons accommodated within SAR facilities, nor is there a backlog for those who have opted to live at external addresses. All those who have applied for international protection have been issued registration cards. In cases of individuals requesting asylum at the border, during the 3-5 day waiting period for full registration, the Bulgarian authorities have given assurances that they are protected against refoulement pending complete registration and the issuance of a registration card."
"As a result of the implementation of these plans, the capacity for reception of persons seeking international protection was raised by approximately 6,000 places. All utility services are provided in accordance with international and European standards. Harmanli Reception Centre was upgraded to receive 4000 more people with a full reconstruction of five buildings. The two reception centres in Sofia (Vrazhdebna and Voenna Rampa) were also upgraded to receive an additional 400 and 800 persons respectively. The centre in Banya was upgraded with the construction of ten additional small houses able to host 40 persons."
"Under the Dublin III Regulation framework, if the transfer is not made within 6 months then the individual falls out of the Dublin system despite acceptance of responsibility and is non-returnable (save where there is some legal obstacle to transfer which can 'stop the clock'). Therefore, any past figure of potentially returnable Dublin transfers is not a guide to the current number still within the 6-month window."
"SAR has recruited doctors and nurses for three of its centres (So a, Banya and Pastrogor) while the centres of Harmanli, Voenna Rampa and Vrazdebhna rely on the medical assistance temporarily provided by the Médecins sans Frontières (MSF) team through weekly consultations. MSF is preparing to phase out in Harmanli, Voenna Rampa and Vrazdebhna by the end of May 2014 and is working in cooperation with SAR to designate general practitioners who can cover the medical needs of the residents of these centres. One Arabic-speaking doctor has already been selected and is working alongside MSF in Vrazdebhna during this period of transition. In Kovachevtsi, SAR has arranged a periodic consultation by a doctor from the local hospital pending a longer- term arrangement, and there is also an Arabic-speaking nurse in the facility."
"Regular visits and monitoring carried out in the different centres by UNHCR have indicated that asylum-seekers find the quality and quantity of the food satisfactory. Communal kitchens, where asylum-seekers can prepare their own food, are available in Banya, Pastrogor and Kovachevtsi. UNHCR is planning to start the construction of communal cooking facilities in Harmanli, Vrazdebhna and Voenna Rampa in April 2014."
Conditions Outside Reception Centres
"considers the integration of migrants as a focused, continuous, dynamic and multifaceted process that requires efforts from all stakeholders involved in it: willingness of migrants to adapt to the host society, without having to give up their cultural identity, and readiness of the host community and public institutions to accept refugees as equal. This approach is underlying also the policy field in the light of the latest influx of asylum and humanitarian protection seekers in Bulgaria."
"The integration process of TCNs with humanitarian or refugee status starts with entering into a voluntary Integration Agreement. Through it, individuals are granted access to a wide range of services and financial incentives to support the initial integration period. The services provided are within the competences of the respective institutions, which should take into account the specifics of the target group, additional policies and services are planned."
Individual Consideration and the Date of Consideration
Risk of Refoulment
(i) Each of the challenges to the certification in respect of each Claimant fails;
(ii) The Claimants' return to Bulgaria would not constitute a breach of Article 3 ECHR or Article 4 of the Charter;
(iii) None of the Claimants has shown a real risk that Bulgaria would refoul them to their home countries without properly determining their asylum status.