UK - Khaled v Secretary of State for the Home Department no 1, 18 April 2016

Country of Decision:
Country of Applicant:
Date of Decision:
18-04-2016
Citation:
Khaled v SSHD no 1 [2016] EWHC 857 (Admin)
Court Name:
High Court of Justice Queen’s Bench Division (Administrative Court) (Mr Justice Garnham)
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Headnote: 

The judgment examined whether returns of asylum seekers to Bulgaria would be contrary to their Article 3 rights. The court held that the Bulgarian system has significantly improved since the UNHCR report in 2014 which prohibited returns of asylum seekers. As a result the returns would not be in breach of Article 3. 

Facts: 

HK is a national of Iraq of Kurdish ethnicity fearing persecution under ISIS. His brother was murdered at the hands of ISIS and he was a witness to that murder. He travelled to the UK through Turkey and was stopped in Bulgaria en-route. Whilst in Bulgaria he was assaulted by the officials and forcibly detained for 20 days. At this time, he was kept in degrading conditions, provided with negligible medical treatment and was not given an interpreter.  He claimed asylum in the UK on the 20th January 2015.

HH is a national of Iran. He claims asylum on the basis of his apostasy from Islam. He was arrested on the 30th April 2011 and detained for 3 days during which he was tortured and beaten. He was told that he would be sentenced to death before being returned to prison. At a subsequent court hearing he was sentenced to seven years imprisonment where he was tortured on many occasions and attempted to commit suicide. During the later period of his imprisonment he was permitted to leave for three days and left Iran for Turkey before moving to Bulgaria. He stayed in Bulgaria for three weeks before entering the UK illegally. He was arrested on the 11th February.

SK is a national of Afghanistan. He claims to have entered the UK illegally on 18th November 2014 circumventing immigration controls. He was also fingerprinted in Bulgaria on 10 July 2014. Whilst in Afghanistan he said that his family had fallen foul of a military commander, his brother was killed and he was tortured and held for ransom as his family was rich. He had come to the UK as his sister is in the country.

HD is a national of Iraq and arrived in the UK on 23rd October 2014. He sought asylum in Sweden in 2008 and was fingerprinted in Bulgaria on 14th September 2014. Sweden refused to take responsibility for the asylum claim as HD absconded Sweden in 2009.

FK is a national of Afghanistan. He left Afghanistan in 2014 and arrived in Bulgaria in June or July 2014. He was arrested and pushed and shouted at in the police station. He had no access to an interpreter and was kept in a police station for three nights. He says he was taken to prison where he was detained for over 50 days. He was also informed that his asylum claim would not be processed for 3-4 years. He states that he entered the UK illegally on 18 November 2014 and made a claim for asylum. 

Decision & Reasoning: 

The five Claimants have applied for judicial review of the Secretary of State’s certificate to return them to Bulgaria.

Following established domestic and EU law a presumption that an EU member state would comply with its obligations was both principled and pragmatic. Such a presumption can be displaced by evidence which did not have to prove a systemic deficiency in the reception and procedural conditions provided by the receiving state.

Under the Asylum and Immigration (Treatment of Claimants etc.) Act 2004 (the 2004 Act) Bulgaria is listed as a safe country and so return to the country would not be treated as in breach of the Refugee Convention.

The court applied the test: could a tribunal properly directing itself conclude that there were substantial grounds for believing that there was a real risk of the person facing treatment contrary to Article 3 ECHR?

The court considered evidence provided by the UNHCR on returns to Bulgaria. In January 2014 the UNHCR recommended the suspension of all returns to Bulgaria. This recommendation was however withdrawn in April 2014, save in respect of vulnerable groups. English Law requires individual consideration by the returning State of the particular vulnerabilities of individual asylum seekers. Since the 2014 recommendation Bulgaria has made significant improvements to the reception and processing of asylum seekers. As the Claimants are not likely to be held long-term in detention but reception facilities the Claimants have not met the test for quashing of the certification.

The court then considered the individual circumstances that may put any of the five claimants at risk. The court held that none of the Claimants was close to establishing that a return to Bulgaria would risk exposing them to a breach of Article 3.

Furthermore, the court found that there was no significant risk of refoulement from Bulgaria. 

Outcome: 

Application refused.

Subsequent Proceedings : 

On 15 June 2016 the High Court gave its second judgment relating to the applicants in “Khaled v SSHD No. 2” [2016] EWHC 1394 (Admin) concerning the claim that all four applicants had been unlawfully detained pending removal. In this judgment the High Court discusses whether provisions of the Dublin Regulation III have direct effect so as to permit individuals to invoke them against the State. Whilst the High Court agreed with the claimants that Dublin III has far more protective provisions for the applicant than in Dublin II (as confirmed in Ghezelbash with regards to Article 27) the Court did not accede to the argument that Article 28 of the Regulation does not affect the lawfulness of detention of a Dublin applicant where the detention is authorised under a free-standing domestic law provision. In other words the Court did not accept that breaches of Article 28 DR III would render their detention unlawful. Subsequently the Court found that Article 28 does not provide an individual with a right to challenge administrative detention by the UK where the applicant has been detained on a domestic legal basis.

Nonetheless, the Court found that for HK and SK the Secretary of State had not followed her own policy on the detention of a person about whom there is independent evidence of torture. Their detention for certain periods of time had, therefore, been unlawful. 

The applicants appealed elements of the High Court's judgment to the Court of Appeal. Amongst other points the applicants advanced that the High Court had given excessive weight to the absence of UNHCR action or publications on Bulgaria and that little weight had been attached to the individual circumstances of the applicants. On 23 November 2017, the Court of Appeal rejected the applicants appeal and held that the assessment of the evidence was a matter for the judge. In particular, the Hight Court was entitled to find that the absence of a specific UNHCR recommendation on preventing returns to Bulgaria had considerable evidential significance. The Court of Appeal also rejected the applicants arguments that a return to Bulgaria could only be carried out if the UK authorities had received individual assurances from the Bulgarian authorities concerning their treatment upon return. According to the Court, such individual assurances as specified by the ECtHR in Tarakhel, are only to be sought if there was a real risk of ill-treatment in violation of Article 3 ECHR in the country.

The Court further held that the applicants had not sufficiently relied on their personal histories and substantiated the argument that accommodating them in the same way as other asylum seekers would result in a violation of their rights under Article 3. Interestingly, the Court of Appeal notes that the test under Article 3 for proper treatment of an asylum seeker in relation to medical needs they may have, including in relation to any mental illness they have, involves a heightened set of obligations on the receiving state. The Court relies on MSS and Tarakhel as well as Article 21 of the recast Reception Conditions Directive to make the point that asylum seekers with mental illnesses have heightened needs and vulnerabilities, which are akin to the needs and vulnerabilities of child asylum seekers. In conclusion, the Court holds: "If it could be shown that there was a significant risk that an asylum seeker with a recognised mental illness would be subjected to such poor living conditions in the state to which he was to be returned that he would suffer a marked deterioration in that illness or that he would receive no treatment in that state to cope with its effects, I consider that it is well arguable that the principles for application of Article 3 laid down in MSS and Tarakhel would be engaged."

Despite the Court of Appeal’s dismissal of the appeal in HK (Iraq) and Ors, all Dublin transfers to Bulgaria are currently suspended until 15 July 2018, stayed behind a case known as JA (Iraq) & Ors v SSHD, to be heard in June 2018. It is understood that the latest case (JA) will consider evidence that was not considered by the Court of Appeal in HK (Iraq) as it restricted itself to hear evidence which was available to the Administrative Court in its hearing of March 2016.

Observations/Comments: 

This case summary was written by Jowita Mieszkowska, BA Jurisprudence, University of Oxford. 

Other sources cited: 

UNCHR recommendation January 2014 and subsequent reports on Bulgaria (April 2014

European Migration Network’s Annual Report on Migration and Asylum Policy in Bulgaria in 2014

EASO’s “Stocktaking Report” on the asylum situation in Bulgaria 2014

AIDA report September 2015

Bordermonitoring.eu Report 2014

ECRI Report of 16 September 2014

Amnesty International Report February 2016

AIDA report of October 2015

Case Law Cited: 

UK - N v Advocate General for Scotland [2014] UKSC 30

UK - R. (on the application of Hamad) v Secretary of State for the Home Department [2015] EWHC 2511 (Admin)

UK - R. (on the application of MS) v Secretary of State for the Home Department [2015] EWHC 1095 (Admin)

UK - Pour (And Others) v Secretary of State for the Home Department [2016] EWHC 401 (Admin)

UK - EM (Eritrea) v Secretary of State for the Home Department [2014] UKSC 12

UK - Tabrizagh v. Secretary of State for the Home Department [2014]

UK - R v Secretary of State for the Home Department ex parte Thangarasa and Yogathas [2002] 3 WLR 1276

UK - R (on the application of Elayathamby) v Secretary of State for the Home Department [2011] EWHC 2182 (Admin)