BH (Eritrea) v Secretary of State for the Home Department

An appeal from the Upper Tribunal is confined to a question of law and is not a rehearing of the evidence. A challenge to the tribunal’s factual assessment as perverse faces a high threshold. A specialist tribunal’s considered evaluation should not be second-guessed unless a serious legal error is shown. A failure to mention every submission or item of evidence expressly does not establish inadequate reasoning where the decision, read as a whole, shows that the material issues were understood and addressed. These principles apply to assessments of Article 3 and Article 18 risks on removal.

The appellant, who had significant mental-health difficulties and was considered a suicide risk, challenged the Secretary of State’s decisions concerning his removal to Malta under Dublin III arrangements. The Upper Tribunal (Immigration and Asylum Chamber) refused judicial review on 29 April 2015. It upheld the certification of his claim as clearly unfounded and rejected alleged risks under Articles 3, 5 and 18, including risks arising from imprisonment, reception conditions, mental-health treatment and the Maltese asylum process.

The appellant sought permission to appeal and an urgent stay of removal. The central issue was whether the proposed grounds disclosed an arguable error of law rather than disagreement with the Upper Tribunal’s factual evaluation.

Lord Justice Vos refused permission to appeal and dismissed the application for a stay of removal.

1. The basis of an appeal from the Upper Tribunal is a question of law. A challenge alleging that the tribunal’s treatment of the facts was perverse must meet a very high standard. An attempt to rerun the tribunal’s comprehensive assessment of evidence does not, without more, raise an arguable point of law.
2. The Upper Tribunal had considered the Council of Europe’s CPT reports and the other evidence concerning Malta, including the treatment of prisoners with mental-health problems and suicidal ideation. An apparent suggestion that the CPT had made no specific recommendations concerning the Mount Carmel ward did not demonstrate that the tribunal had failed to evaluate the evidence appropriately. The Upper Tribunal had broadly accepted Professor Katona’s evidence, and any difficulty in communicating with Maltese health authorities did not itself establish a breach of Article 3 or Article 18.
3. The possibility that the appellant might not be imprisoned, but might instead live in a reception centre and become destitute, had not been ignored. The Upper Tribunal had considered the evidence concerning migrants in Malta and the possible Article 3 risks. Its failure to reach the appellant’s preferred conclusion was not an error of law.
4. Although the Upper Tribunal did not expressly mention Malta’s low asylum-recognition rate, its decision showed that it was aware of the alleged shortcomings in the Maltese asylum procedures. The reasons were therefore adequate when read as a whole, and no arguable Article 18 error arose.
5. A pending Malta-related case, YH (Libya), did not provide a basis for granting permission. Since the proposed appeal was bound to fail, a stay would merely postpone removal. Permission was refused and the stay application was dismissed.

• Upper Tribunal (Immigration and Asylum Chamber): On 29 April 2015, refused the appellant’s application for judicial review and upheld the Secretary of State’s decisions concerning certification and removal to Malta.
• Court of Appeal (Civil Division): Lord Justice Vos refused permission to appeal and dismissed the application for a stay of removal.