1) HK (Iraq) and Others v The Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lord Justice Sales,Lord Justice Lindblom,Sir Stephen Richards |
| Judgment Date | 23 November 2017 |
| Neutral Citation | [2017] EWCA Civ 1871 |
| Docket Number | Case No: C4/2916/2178 & 2179 & 2181 & 2190 |
| Court | Court of Appeal (Civil Division) |
| Date | 23 November 2017 |
[2017] EWCA Civ 1871
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ADMINISTRATIVE COURT
THE HON. MR JUSTICE GARNHAM
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Sales
Lord Justice Lindblom
and
Sir Stephen Richards
Case No: C4/2916/2178 & 2179 & 2181 & 2190
The Queen on the application of:
Mark Symes (instructed by Duncan Lewis Solicitors) for the Appellant SK
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
Judgment Approved
The appellants in this case are asylum seekers who came to the UK via Bulgaria. They are nationals of Afghanistan (SK and FK), Iraq (HK) and Iran (HH). This appeal is concerned with the proposal of the Secretary of State to remove the appellants from the UK to Bulgaria under the Dublin III Regulation arrangements ( Regulation 604/2013), on grounds that they entered into the territory of the European Union in Bulgaria and may be sent back there to make their asylum claims.
The appellants say that they would face a real risk of treatment in Bulgaria in violation of Article 3 of the European Convention on Human Rights ("ECHR") and in violation of the corresponding provision in Article 4 of the EU Charter of Fundamental Rights if returned there. Since the argument before us proceeded in relation to Article 3 of the ECHR, it is not necessary to refer further to the Charter of Fundamental Rights. Article 3 provides that "No one shall be subjected to torture or to inhuman or degrading treatment or punishment."
Pursuant to paragraph 5(4) of Part 2 of Schedule 3 to the Asylum and Immigration (Treatment of Claimants etc) Act 2004 ("paragraph 5(4)") the Secretary of State certified the appellants' human rights claims in each case as "clearly unfounded" at the respective relevant dates in 2015. This has the effect that the appellants are unable to appeal from within the UK to the First-tier Tribunal ("FTT") against the decision to remove them, for the FTT to determine whether their human rights submission that removal to Bulgaria would violate their rights under Article 3 is made out. The Secretary of State also certified the claims on safe third country grounds pursuant to paragraphs 4 and 5 of Part 2 of Schedule 3 to the 2004 Act, but no distinct issues arise in relation to that.
The appellants commenced judicial review claims to challenge the lawfulness of the certificates in their respective cases. The claims were heard together by Garnham J on 1 and 2 March 2016. Further evidence was placed before him about the position in Bulgaria which had not been in existence at the time of the Secretary of State's certification decisions. The judge handed down his judgment on 18 April 2016.
For practical reasons and to avoid the need for fresh certification decisions based on that further evidence and new judicial review claims in relation to renewed certificates, it was common ground before the judge that as well as subjecting the original certification decisions of the Secretary of State to judicial review he should himself consider as at the date of his judgment whether the "clearly unfounded" test in paragraph 5(4) was satisfied in respect of the appellants' Article 3 claims in light of the further evidence adduced before him. The judge duly considered the further evidence and applied paragraph 5(4) for himself in the light of it. He held that as at 18 April 2016 the appellants' Article 3 claims were "clearly unfounded" for the purposes of paragraph 5(4). He therefore refused to quash the certificates which the Secretary of State had issued in respect of them.
This appeal proceeds as a review of the judge's decision: CPR Part 52.11(1). This is the provision which is applicable, because the appeal was commenced before October 2016 (it has now been replaced by CPR Part 52.21, which is in the same terms). This court will only allow the appeal if we are satisfied the judge's assessment in relation to section 94 was wrong: CPR Part 52.11(3)(a).
It is common ground that in applying paragraph 5(4) the judge was required to consider whether on the materials before him the appellants had a case that their rights under Article 3 would be violated by removal to Bulgaria which was capable of being accepted by the FTT if heard by it on an appeal. I will refer to this as the question whether the appellants or any of them had a good arguable case which merited going to the FTT. The judge could only find that the appellants' human rights claims were "clearly unfounded" if they did not have a good arguable case which could properly be upheld by the FTT. It is also common ground that in considering this question the evidence contained in the witness statements of the appellants and the medical reports adduced in relation to HK and HH is capable of being accepted by the FTT at an appeal hearing, so that the judge had to proceed to examine whether the appellants had a good arguable case under Article 3 on the basis of an assumption that their accounts of their treatment and the medical reports in relation to HK and HH were true. The judge did make this assumption in making his evaluation of whether the appellants' Article 3 claims were "clearly unfounded" and in coming to his conclusion that they were.
The judge had before him various published reports of non-governmental organisations ("NGOs") and other official bodies which commented on the position in relation to treatment of asylum seekers in Bulgaria. The Office of the UN High Commissioner for Refugees ("UNHCR") had issued a report dated 2 January 2014 ("the January 2014 UNHCR report") which stated that there should be an embargo on sending asylum seekers to Bulgaria under the Dublin Regulation because there was a real risk they would be ill-treated there, in violation of their rights under Article 3. However, the UNHCR assessed that improvements had been made in Bulgaria's arrangements for receiving asylum seekers after that time, and in April 2014 it issued another report ("the April 2014 UNHCR report") which lifted the general embargo against sending asylum seekers to Bulgaria under the Dublin Regulation (see below). There were also reports before the judge from the Council of Europe (26 March 2015), the Commissioner for Human Rights of the Council of Europe (22 June 2015), the European Council on Refugees and Exiles or "ECRE" (February 2016), the Asylum Information Database or "AIDA" (October 2015), Human Rights Watch (April 2014), Bordermonitoring.eu (2014), the European Asylum Support Office or "EASO" (17 October 2013 and 5 December 2014 and an "EASO Operating Plan to Bulgaria" of 2014) and European Migration Network or "EMN" (2014).
In addition to these published reports, at the hearing before the judge the appellants sought to adduce in evidence a report dated 10 February 2016 by Amnesty International ("the Amnesty International report"). This had been commissioned in relation to one of the claimants before the judge (HD, who is not a party to this appeal) but was relied upon by the appellants as well for the purposes of their Article 3 claims. In the text of the report Amnesty International described it as "an independent expert opinion" offered by Amnesty International as an organisation. It was not a published country report by Amnesty International but a private report prepared for the purposes of this litigation.
The information in the report was said to be sourced from Amnesty International's Bulgaria Team, who was not identified. The report was signed by Tom Southerden on behalf of Amnesty International. On our understanding, Mr Southerden is not himself a member of the Bulgaria Team nor is he an expert about Bulgaria. He was simply the person responsible for pulling the report together from information provided by the Bulgaria Team.
Paragraph 11 of the Amnesty International report stated:
"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."
Paragraph 107 was in these terms:
"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."
Many critical things were said in the published reports (including the April 2014 UNHCR report) and in the Amnesty International report about the Bulgarian asylum system and the treatment of asylum seekers in Bulgaria. In making his assessment for the purposes of paragraph 5(4), the judge had to weigh the statements in all these reports.
The judge admitted the Amnesty International report into evidence with reluctance: see [10]–[18]. In doing so, he gave reasons why the weight to be attached to it would be reduced because of the circumstances in which it came to be adduced. Particularly significant...
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