HK (Iraq) & Ors, R (On the Application Of) v The Secretary of State for the Home Department

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 in that regard “was the fact that [the report] was served late; that the Secretary of State had not had an adequate opportunity to respond to it; that it was the work of more than one individual, although only one was named; that its author had made clear that in no circumstances would he agree to be cross-examined on its contents; and that it was a private report from Amnesty International which had not been subject to public debate and consideration, as is commonly the case with publicly directed reports of NGOs like Amnesty International”: [12].

On this appeal, the appellants accept that the judge was entitled to make this evaluation regarding the weight to be attached to the Amnesty International report.

Permission to appeal to this court was granted by Underhill LJ and McCombe LJ at an oral hearing. They indicated that although the appellants made no complaint about paras. [10]-[18] of the judgment, this court might wish to make observations about the use and form of expert reports in judicial review cases of this kind.

In light of that possibility, Mr Southerden wrote a letter on behalf of Amnesty International dated 17 October 2017 to explain the approach adopted by Amnesty International in compiling private reports of this kind. We are grateful for his explanation and have taken it into account. I make comments in relation to this topic at the end of this judgment.

The appellants now appeal on the four grounds for which they have been granted permission, and as refined in argument before us, as follows:

The judge provides a helpful and succinct summary of the facts in relation to each of the appellants:

“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.

SK

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.

…

FK

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.”

A medical report in relation to HK was before the judge. It diagnosed HK as suffering from depression and PTSD. It indicated that these conditions could get worse if he were returned to Bulgaria, particularly if he did not receive treatment there or if he was socially isolated.

Also before the judge was a medical report in relation to HH. It indicated a likely diagnosis of HH as suffering from depression and PTSD, as part of which he experienced ideas about suicide. The report stated that HH had clear plans for suicide if returned to Bulgaria because of his fear of ill-treatment there and assessed that there would be a high risk that he might attempt this.

There were no medical reports in relation to SK and FK. However in the case of SK there was a rule 35 report by a medic at the detention centre in the UK where he was being held which stated that he claimed to have been kidnapped and beaten regularly over a period in captivity in Afghanistan, that he had reported anxiety attacks and symptoms which might indicate he was suffering from PTSD (though he did not have suicidal thoughts) and that he would benefit from having a mental health assessment. A rule 35 report is a document prepared by the responsible medical practitioner at the detention centre to notify the Secretary of State if there is a detained person “whose health is likely to be injuriously affected by continued detention or any conditions of detention.”

By reason of the issues which he was asked to address and the way in which the appellants’ case was put to him, the judge did not have to make detailed findings on this evidence regarding their mental health.

It is relevant to set out here certain passages from the April 2014 UNHCR report. The introduction to that report referred to the January 2014 UNHCR report and then continued:

“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.”

The judgment below is careful and well-reasoned. The judge set out the legal framework in relation to returning asylum seekers under the Dublin Regulation arrangements at [46]-[68] in terms which no-one sought to criticise. In a thorough discussion of the relevant principles he covered each of EU law, the law under the ECHR and domestic law.

At [69] the judge set out the three categories into which the complaints presented to him fell: (i) the appellants relied on NGO reports in 2014 recommending that returns to Bulgaria be suspended; (ii) they complained about the limited reception capacity in Bulgaria, which they said raised doubts whether asylum claimants would be effectively registered, managed and accommodated on return; and (iii) they complained about conditions in reception camps and in Bulgaria generally, regarding overcrowding in reception centres and lack of food; a climate of endemic racism in officialdom and society; and about a lack of language classes and accessible healthcare.

In an important part of the judgment, at [70]-[75] the judge explained his approach in dealing with the claims made. At [70] he said that he would concentrate on the most powerful features of the appellants’ cases, rather than addressing every one of scores of complaints made, some of which were based on a single sentence of an NGO report. At [71] he said he would apply 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 of the ECHR?” No criticism is made of the approach explained at [70] and it is agreed that [71] encapsulates correctly the test he was required to apply for the purposes of paragraph 5(4) on the question whether the claims were “clearly unfounded”. He applied that test both as at the date of the certification of the appellants’ claims and as at the date of his own decision, as the parties invited him to do.

At [72]-[73] the judge stated that in applying the test he bore in mind two powerful considerations: (i) that the authorities establish that there is a significant evidential presumption that listed states such as Bulgaria will comply with their ECHR obligations in relation to asylum procedures and reception conditions for asylum seekers in their own countries and (ii) the view of the UNHCR was of considerable importance. Again, no criticism is made of the judge about this, and rightly so. Both points are supported by high authority: see, in particular, the judgments of the European Court of Human Rights (“ECtHR”) in MSS v Belgium and Greece (2011) 53 EHRR 2, of the CJEU in NS v Secretary of State for the Home Department [2013] QB 102 and of the Supreme Court in R (EM (Eritrea)) v Secretary of State [2014] UKSC 12; [2014] AC 1321. At [73] the judge pointed out that in MSS the ECtHR treated the UNHCR’s view about conditions for returnees to Greece as “pre-eminent and possibly decisive” and in EM (Eritrea) Lord Kerr of Tonaghmore JSC, for the Court, at [71]-[72] approved a statement by Sir Stephen Sedley in the Court of Appeal that there is a “reason for according the UNHCR a special status in this context”.

At [74]-[75] the judge made clear that he had studied the very full schedules the parties had provided which summarised the mass of documentation from NGOs and others which the judge had had placed before him. The schedules had enabled him to identify the salient points in that documentation. He explained that he preferred the Secretary of State’s analysis of the material and said that the appellants’ approach had been to “cherry pick” the more critical of the extracts without properly considering the context or the material which pointed the other way.

At [76]-[90] the judge reviewed what he considered to be the most salient and relevant evidence in relation to the recommendation of suspension of returns to Bulgaria in the January 2014 UNHCR report and, as he found, an improvement in the position since then. This led him to the conclusion that “there is no basis on which it could properly be concluded that the wholesale suspension of returns was now required”: [90]. In his discussion the judge placed particular weight on the April 2014 UNHCR report which had lifted the recommendation of a suspension of returns to Bulgaria and on the statement in that report that the UNHCR undertook to “continue closely to monitor developments in Bulgaria” (see above). Down to the date of judgment, the UNHCR had not re-issued a recommendation of suspension of returns, and in light of the statement about monitoring by the UNHCR the judge said this was “highly significant”: “Given the expertise of [the UNHCR] and its presence in the country, this is powerful evidence that the Bulgarian asylum system is functioning”: [83]. He also noted at [84]-[89] that there were parts of the reports of other NGOs which supported the general picture that there had been a significant improvement in conditions in Bulgaria since January 2014, including in the Amnesty International report (from which he quoted at [86]).

At [80] the judge referred to what the UNHCR had said in its April 2014 report about asylum-seekers with specific needs or vulnerabilities. At [81]-[82] he said this:

“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.”

Against the background of this general assessment, the judge then reviewed each category of complaint made by the appellants and dismissed each of them by reference to the evidence available about general conditions in Bulgaria: as to reception capacity at [91]-[99]; as to reception conditions at [100]-[106]; and as to conditions outside reception centres at [107]-[118]. In the course of this analysis of the evidence the judge made reference to a wide range of NGO reports as well as the UNHCR position. In doing that he quoted a very short extract from the Amnesty International report which tended to support the overall picture also derived from many other sources that there had been significant improvement in the conditions for asylum seekers in Bulgaria: see [101].

Next, at [119]-[124], the judge examined whether the impressions formed by reference to the general evidence about the conditions in Bulgaria should be treated as modified by reason of the individual position of the appellants (and HD) and their evidence about what had happened to them, as follows:

“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.”

Finally, the judge considered the distinct question of the risk of refoulement by Bulgaria to the appellants’ home countries. There is no appeal against his finding that there was no significant risk in that regard.

This appeal is advanced on narrow grounds. It is not said that the judge gave inadequate reasons, nor that his judgment contains a misdirection to himself, nor that he reached a conclusion which was not properly open to him on the evidence. Instead, the four grounds of appeal are relied upon as showing that in various ways the judge has not applied the law correctly in light of the evidence. In my judgment, however, no such inference can be drawn. The judge has directed himself properly on the law, has applied it properly to the facts and has reached lawful and rational conclusions regarding the risk which the appellants would face upon return to Bulgaria. I address each ground of appeal in turn.

The assessment of the evidence was a matter for the judge. He was plainly entitled to attach the weight he did to the omission of the UNHCR to reimpose the recommendation of a general embargo on returns to Bulgaria under the Dublin Regulation arrangements which it had originally imposed in January 2014, but which it had withdrawn in its April 2014 report. In particular, the judge was entitled to assess that this omission had considerable evidential significance as regards the acceptability of conditions for asylum seekers returned to Bulgaria in view of the statement in the April 2014 report that the UNHCR would “continue to closely monitor developments in Bulgaria” (set out above), which the judge correctly emphasised at [83]. The judge was entitled to place particular weight on the position of the UNHCR, as he did, in view of its special role in this field and in light of relevant authority (in particular, the guidance given by the Supreme Court in EM (Eritrea)).

At [81]-[82], in particular when those paragraphs are read along with [119]-[124], the judge made a rational and lawful assessment of the significance of the caveat in the April 2014 UNHCR report regarding the risk in relation to return of asylum seekers with specific needs and vulnerabilities. The April 2014 UNHCR report did not say that appropriate care and medical facilities would not be available in Bulgaria for persons who claimed to be vulnerable as victims of torture or trauma, as three of the appellants did, and there were positive indications that care would be provided where it was needed. The problem of identification of asylum seekers with special needs among those who came over the Bulgarian border in large numbers in 2013, so putting the Bulgarian system for reception of refugees under considerable strain (see [77]), was unlikely to be so acute in relation to specific individuals returned to Bulgaria in 2016 under the Dublin Regulation arrangements (and I would add that if it were thought desirable or necessary it would be open to the UK to inform the Bulgarian authorities if any individual gave rise to a concern as to their vulnerability). The Secretary of State, in certifying the appellants’ claims, and the judge in deciding on the position as at the date of his judgment have both conducted an individual assessment in relation to each appellant, taking account of their individual circumstances in light of the evidence about the position in Bulgaria, as was recommended by the UNHCR.

Counsel for the appellants submitted that the UK government could only send the appellants back to Bulgaria if it first obtained specific assurances from the Bulgarian government as to the treatment they would receive there, as had been found to be necessary by the ECtHR in relation to returns of asylum seeker children to Italy in Tarakhel v Switzerland, Grand Chamber judgment of 4 November 2014, at paras. [116]-[122].

I do not accept this submission. Assurances regarding the treatment of the individual children in Tarakhel were found to be required precisely because there was a real risk of mistreatment of the children, in violation of Article 3, if they were simply sent back to Italy without the benefit of such assurances. But in the present case, the judge has made a proper and lawful assessment that the appellants will not face a real risk of mistreatment in violation of Article 3 if they are returned to Bulgaria in the absence of any individual assurances being given. In making that assessment, the judge was entitled to give particular weight, as he did, to the position of the UNHCR and to the significant evidential presumption that Bulgaria would seek to meet its obligations under the ECHR and in EU law.

This ground of appeal was clarified and simplified at the hearing. The individual circumstances of the appellants which are relied upon are their having been tortured or suffered trauma, in the cases of HK, HH and SK, and the evidence about depression and PTSD in their cases. It is said they may not receive appropriate treatment in relation to their mental health if returned to Bulgaria. They also say that the judge did not take account of their own previous experiences of ill-treatment in Bulgaria, which post-dated the April 2014 UNHCR report, when making his assessment of the risk they would face on return to Bulgaria.

In relation to the first part of this ground, counsel for the appellants accept that their circumstances do not meet the usual stringent test laid down in N v United Kingdom (2008) 47 EHRR 885, GC, and discussed by this court in GS (India) v Secretary of State for the Home Department [2015] EWCA Civ 40; [2015] 1 WLR 3312 in relation to return to a country which will not meet their medical needs with treatment to the same standard as is available in the UK. However, they contend that asylum seekers are in an especially vulnerable category of person and that the case-law shows that a higher standard of appropriate medical or other care may be required under Article 3 in the state to which they are returned than under the usual N v United Kingdom approach.

In that regard they pointed to Article 13(2) of Council Directive 2003/9/EC of 27 January 2003 laying down minimum standards for the reception of asylum seekers (“the Reception Directive”). I note that there is a recast version of this Directive, 2013/33/EU, promulgated in 2013 – see NA (Sudan) v Secretary of State for the Home Department [2016] EWCA Civ 1060, [40]. We were not taken to this but I do not understand that there is any material difference between them in this respect. Article 13(2) of the Reception Directive provides:

“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.”

This suggests that a Member State has a heightened set of obligations in relation to treatment of asylum seekers which is capable of informing the standard of care required for the purposes of Article 3 of the ECHR if an asylum seeker is returned there. However, counsel also explained that it is no part of the appellants’ case that the standard of treatment laid down in Article 13(2) is simply to be regarded as establishing the relevant test for violation of Article 3 of the ECHR.

In my view, there is force in the appellants’ contention 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, beyond those laid down in N v United Kingdom.

In the MSS judgment at paras. [250]-[254] the ECtHR referred to the obligations on Member States under the Reception Directive and to an international consensus on the need for special protection of asylum seekers as a particularly underprivileged and vulnerable population group ([251]). Its focus in that case was on whether a situation of extreme material poverty could raise an issue under Article 3 ([252]) in relation to an asylum-seeker who was left to live on the streets for months, “unable to cater for his most basic needs: food, hygiene and a place to live” ([254]). But I do not think that the reasoning in the case in relation to Article 3 is necessarily restricted to these matters.

Although counsel for the appellants did not refer to it, it is noteworthy that Chapter IV of the Reception Directive sets out “Provisions for Persons with Special Needs”, and Article 17(1) in that chapter states this general principle:

“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)]”.

The corresponding Article 21 in the recast Directive expands this list to include “victims of human trafficking, persons with serious illnesses, persons with mental disorders …”: the provision is set out in NA (Sudan) at [44]. In my view, these provisions are capable of informing the application of Article 3 of the ECHR in terms of helping to identify the categories of asylum-seekers who may be regarded as having special vulnerabilities which potentially heighten the standards of treatment to be expected in respect of them in the state to which they are returned.

In the Tarakhel judgment at paras. [94] and [118] the ECtHR re-affirmed previous case-law to the effect that the assessment of the minimum level of severity at which Article 3 is engaged is relative, and “depends on all the circumstances of the case, such as the duration of the treatment and its physical or mental effects and, in some instances, the sex, age and state of health of the victim.” At para. [118] the Court reiterated the need referred to in MSS at para. [251] for special protection of asylum-seekers as a particularly under-privileged and vulnerable group, and at para. [119] stated,

“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.”

Counsel for the appellants submitted that this reasoning also extends to cover asylum seekers who suffer from a mental illness who, like children, may also have heightened needs and increased vulnerability. In my view, even though we were not shown a judgment which has gone this far, there is force in this submission as well. 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.

Laws LJ at paras. [54]-[63] in his judgment in GS (India) highlighted the different approach to Article 3 standards in relation to asylum-seekers pursuant to the MSS and Tarakhel judgments, as contrasted with the usual position under N v United Kingdom. Underhill and Sullivan LJJ agreed with this part of his judgment: see [105] and [116], respectively. That the discussion took place in the context of a comparison of N v United Kingdom, a case concerning standards of health-care which would be encountered in the state to which the individual was returned, and the MSS and Tarakhel judgments suggests that the members of the court contemplated that poor standards of health-care which would be received by an asylum seeker in the state of return could in principle, in an appropriate case, give rise to an issue under Article 3 on application of the heightened standard of care for asylum-seekers referred to in those judgments.

The same point can be made still more strongly with reference to the judgment of Underhill LJ (with which McFarlane and Simon LJJ agreed) in NA (Sudan) v Secretary of State for the Home Department [2016] EWCA Civ 1060. That case concerned the return of asylum seekers to Italy under the Dublin Regulation arrangements. Underhill LJ again referred to the guidance in the MSS and Tarkhel judgments in relation to the treatment of asylum seekers. As he put it at [159] in relation to NA’s case, “The essential issue for the judge was … simply whether there was a serious risk that if she were returned NA would not be accommodated in a SPRAR [a special type of reception centre]: this subsumes the question whether she would receive proper healthcare, and specifically psychiatric care, since it is not argued that even if she were in a SPRAR her needs would not be attended to.” The judge at first instance had found that there was no real risk that NA would not be placed in a SPRAR in Italy and hence no real risk she would suffer ill-treatment in violation of Article 3, and this court upheld that assessment. Nonetheless, in his formulation of the issue I think it is clear that Underhill LJ considered that it was at least arguable that NA would have been able to complain of a violation of Article 3 if the evidence showed that her need for psychiatric care would not be accommodated in Italy.

In the present proceedings at first instance, the case for the appellants in relation to the trauma they had suffered, their healthcare needs and the significance of this for the analysis under Article 3 was put in very general terms. Their main focus was a complaint about the poor quality of the living conditions which they said they would experience in Bulgaria, which they claimed would be much the same as the living conditions for asylum seekers in Greece as addressed in the MSS judgment. That is why the judge did not refer in his judgment to the evidence about mental illness in the cases of HK and HH, since he was not invited to make an assessment of it. There is no criticism of his judgment in this regard on this appeal.

The judge addressed this aspect of the argument in two stages. He first considered the evidence about the general position in relation to asylum seekers returned to Bulgaria, particularly in light of the significant presumption that Bulgaria would seek to comply with its obligations and the position of the UNHCR. Then at [119]-[124], set out above, the judge assessed whether the evidence about the individual position of the appellants and HD affected the picture or indicated that they as individuals would be exposed to a risk of violation of their rights under Article 3, notwithstanding the evidence about the general position. As an approach, this was entirely proper and correct.

In my view, the judge was fully entitled to make the assessment he did at [119]-[124]. The evidential presumption and the position of the UNHCR indicated strongly that there was not a general problem under Article 3 with living conditions for returned asylum seekers of the kind of which the appellants complained. To the limited extent to which the appellants relied on their personal histories as indicating a special vulnerability, they had not put forward any sustained argument why accommodating them in the same way as other asylum seekers would result in a violation of their rights under Article 3, even though that would not be so for others. It might well have been sufficient for the judge simply to indicate that the appellants had not shown there was anything sufficiently unusual or special about their personal circumstances to take them outside his reasoning in relation to the general position in Bulgaria. As it was, the judge went further than this and indicated other points in the evidence before him which supported that conclusion. In my opinion, his reasoning and his conclusion in this section of his judgment cannot be impugned.

This reasoning also covers the second aspect of this ground of appeal, outlined at para. [40] above. The judge clearly took account of the personal experiences of the appellants and HD in Bulgaria when making his assessment about their treatment if returned there. He had referred to their evidence about that in the section of the judgment in which he summarised their cases, set out above. That was one part of the overall evidence regarding the risk upon return. He was entitled to find on the evidence, particularly in light of the presumption of compliance and the position of the UNHCR in relation to returns to Bulgaria pursuant to the Dublin Regulation arrangements, that the appellants’ experiences upon coming into Bulgaria over the border originally were not indicative of their likely treatment if returned under the Dublin Regulation (cf NA (Sudan) at [211]).

In my judgment, there is nothing in this ground of appeal. The judge was plainly entitled to take the presumption of compliance into account: see EM (Eritrea). He was also plainly entitled to take into account the evidence about the way in which Bulgarian law and reception procedures were supposed to work, since this was an indication of how the Bulgarian authorities would seek to treat returned asylum seekers. The judge was well aware of negative points in the range of NGO reports which had been put before him, including the Amnesty International report. He took them into account and was entitled to weigh them against other available evidence, including the important evidence regarding the position of the UNHCR. The weighing of conflicting items of evidence in this way was central to the exercise undertaken by the judge. The appellants accept that it cannot be said that he reached a conclusion which was irrational or could not be supported on the available evidence.

Counsel for the appellants complained that the judge was not “even-handed” in his approach to the Amnesty International report, which he had admitted into evidence. Since they accept that the judge was entitled to assess its value as compromised for the reasons he gave at [10]-[18], it cannot be said that the judge was obliged to give it the same weight as the presumption of compliance and the evidence about the position of the UNHCR. Rather, under this ground of appeal the complaint is that the judge failed to be “even-handed” because he picked out parts of the Amnesty International report which supported his conclusion and did not deal with other parts which pointed against it.

I consider that there is nothing in this ground of appeal either. It is not put as a complaint about the reasons given by the judge, as such, but it is said that the limited references he made to the Amnesty International report in the judgment show that he did not in fact have proper regard to the report as a whole, including in particular the negative comments it contained about the position in Bulgaria. In my opinion, however, it is impossible to draw any such inference. It is obvious from the judgment that the judge had read the Amnesty International report and had it in mind. He also had his attention drawn to the relevant parts of it, including those which were critical of the position in Bulgaria, by being presented with a schedule of the relevant references; and he said in terms that he had read that: see [74].

I would add that if there had been a complaint about the adequacy of the reasons given by the judge, which there is not, I would have rejected it. The judge’s reasoning is plainly sufficient to explain his conclusion. It was not incumbent on him to work through every negative point in the Amnesty International report and say why he did not accept it. He had given adequate general reasons why that report was entitled to less weight and why the presumption of compliance and the position of the UNHCR were weighty factors which supported the case for the Secretary of State.

The judge described Amnesty International as a respected NGO (at [12]), which was an important reason why he was prepared to admit its report into evidence. I certainly concur with that description. I also agree with the contention of counsel for the appellants that the content of the Amnesty International report can be said to be significantly better in quality than the so-called expert report about the treatment of asylum seekers in Cyprus about which I made negative comments when sitting at first instance in R (Elayathamby) v Secretary of State for the Home Department [2011] EWHC 2182 (Admin), at [59]. However, it is clear that the Amnesty International report did not comply with the standards for preparation of expert reports which are usually to be expected.

The Amnesty International report was not a general country report published by that organisation in the public domain. It was put forward as a private report compiled for the purposes of the claim brought by HD. There is a significant difference between the two kinds of report. It is to be expected that a published report will have had considerable care and attention devoted to it as the public expression of view of Amnesty International, in relation to which its reputation will be publicly on the line and for which it may have to account and defend itself in its dealings with others. Also, being in the public domain, a published report is available for comment and criticism by others who are in a position to provide relevant information, including governments and NGOs. It becomes part of the general public discourse about conditions in a particular country and can be read and assessed in that context. These points do not apply in relation to a private report of the kind under consideration here.

The private Amnesty International report in our case was put forward as an expert report. In these judicial review proceedings, it is now rightly accepted that CPR Part 35 regulated its admissibility and contents. Insofar as it might be relied upon in proceedings in the FTT – which was a relevant consideration in the context of the challenge to certification of the appellants’ human rights claims – the Practice Direction of the Immigration and Asylum Chambers of the First-tier Tribunal and the Upper Tribunal dated 13 November 2014 (“the Tribunal Practice Direction”) regulated its admissibility and contents. The Tribunal Practice Direction contains provisions which are closely similar to those of CPR Part 35. Both CPR Part 35 and the Tribunal Practice Direction emphasise that an expert report must state the expert’s qualifications; explain the instructions given to him; be even-handed in dealing with all relevant evidence on a topic; express the personal opinion of an identified individual whose expert report it is; and identify where facts are within the expert’s own knowledge and where they derive from another source (in which case the source must be identified): see section 10 of the Tribunal Practice Direction, in particular paras. 10.2 and 10.9 to 10.11, and CPR Part 35.10 and Practice Direction 35.

These are important provisions, because they emphasise the neutral and even-handed approach which an expert is supposed to follow in assessing evidence in a case and expressing his opinion. They also emphasise the personal responsibility which an expert witness has to ensure that his report complies with this approach. Where necessary in the interests of justice, an expert may be required to attend a hearing to give evidence and be cross-examined on his report.

Also, in the context of these judicial review proceedings, CPR Part 35 set out the procedural rules with which HD and the appellants were required to comply if they wished to adduce the Amnesty International report in evidence. In particular, they required the permission of the court to adduce an expert report: CPR Part 35.4. In considering whether to grant permission, a court will have regard to the overriding objective in CPR Part 1. It will be incumbent on a party applying for permission to adduce an expert report to do so in good time and the court will be concerned to ensure that the opposing party has had a fair opportunity to deal with it.

The Amnesty International report did not comply with the requirements regarding the contents of an expert report as set out in CPR Part 35 (and Practice Direction 35) and the Tribunal Practice Direction. Mr Southerden did not claim to have any expertise himself about Bulgaria. He did not clearly identify the sources of the information set out in the report. The report does not appear to be even-handed in its assessment of all the relevant evidence in relation to Bulgaria. For instance, while reference is made to the April 2014 UNHCR report in general terms its detailed contents are not referred to, in particular the UNHCR’s statement that it was monitoring the position in Bulgaria closely; nor is there any explicit recognition of the importance of a view taken by the UNHCR as the body with special responsibility in this area. The Amnesty International report was stated to be the expert opinion of “our organisation”, so there was no one identified individual who took personal responsibility for its contents. It is also unfortunate that at para. 107 of the report the wrong version of the Tribunal Practice Direction was referred to, but nothing turns on that. In addition, at para. 11 of the report, set out above, it was explained that no-one would come to court to be cross-examined on the report.

In the letter from Amnesty International dated 17 October 2017, it accepts that the outright refusal to provide someone to give oral evidence in relation to its report went too far. However, the letter does not indicate any appreciation of the other problems with an expert report of this kind. On the contrary, in its letter Amnesty International says that production of reports of this kind requires “a resource-intensive process and involve[s] the work of a number of individuals with different skills and experience in different departments of the organisation; often based in different countries.” It thus emphasises that such a report does not set out the considered expert view of a single person, as CPR Part 35 and the Tribunal Practice Direction require. Indeed, it is very unclear from a report of this kind and even in Amnesty International’s letter itself which individual could be identified as the relevant person to attend court, if required, to be cross-examined about its contents.

In its letter, Amnesty International rather gave the impression, perhaps unintentionally, that it would like to be regarded as exempt as an organisation from the requirements of CPR Part 35 and section 10 of the Tribunal Practice Direction. However, I can see no good reason why Amnesty International should be accorded routine exemption from the requirements of those procedural codes governing the admission of expert evidence. The codes are intended to ensure that such evidence is only admitted where it is fair to both sides to do so and that it is in a form which provides the greatest assistance to the court or tribunal. In terms of general approach, CPR Part 35 and section 10 of the Tribunal Practice Direction already provide the relevant guidance.

It is relevant to add that both a court and a tribunal have extensive case-management powers which would enable them to dispense with all or some aspects of the rules under CPR Part 35 and section 10 of the Tribunal Practice Direction. For instance, expert evidence which comprises the views of a number of experts might be admitted in an appropriate case and where there is no unfairness involved: see MN (Somalia) v Secretary of State for the Home Department [2014] UKSC 30; [2014] 1 WLR 2064, [43] per Lord Carnwath JSC (with whom the other Justices agreed). However, if a court or a tribunal is to be asked to do this, it should be appreciated that it will have regard to the overriding objective to deal with cases justly and at proportionate cost. The party applying for dispensation from the usual rules governing admission of expert evidence will need to show good reason why that course should be taken and the court or tribunal will be concerned to ensure that this will involve no unfairness to the opposing party.

For the reasons set out above, I would dismiss this appeal.

I agree.

I also agree.