Leila Simaei & Anor, R (on the application of) v Secretary of State for the Home Department

A proposed Dublin transfer to Hungary will not breach article 3 merely because reception or detention conditions are imperfect. The applicant must show substantial grounds for believing that the individual faces a real risk of inhuman or degrading treatment.

Current and reliable country material must be assessed as a whole. It must establish either a sufficient individual risk or, in EU-law terms, a relevant systemic shortcoming or substantial operational problem. Generalised, vague and unparticularised allegations of violence or poor conditions will not displace the strong presumption that Hungary will comply with its international obligations.

The applicants challenged decisions to remove them to Hungary under the Dublin Regulation for determination of their asylum claims. The first applicant, an Iranian national with PTSD and depression, alleged that return would expose her to unsafe reception conditions and inadequate support for vulnerability. The second applicant, a Turkish Kurd who had previously absconded from Hungary, contended that he would probably be detained in conditions contrary to article 3.

The first applicant's claim had been certified under paragraph 5(4) of Part 2 of Schedule 3 to the Asylum and Immigration (Treatment of Claimants) Act 2004. The Tribunal considered extensive recent country material, including reports concerning detention, reception arrangements and treatment of vulnerable asylum seekers. The central issue was whether the material arguably established an article 3 risk, a systemic deficiency, or substantial operational problems in Hungary.

1. The applications for permission to apply for judicial review were dismissed. Neither applicant had an arguable case that removal to Hungary would expose them to a real risk of treatment contrary to article 3 of the European Convention on Human Rights.

2. The relevant inquiry was whether there were substantial grounds for believing that the particular applicant would face a real risk of inhuman or degrading treatment. The evidence had to be considered in the round and at its reasonable zenith. It nevertheless failed to displace the strong Dublin-regime presumption that Hungary would comply with its international obligations.

3. For the first applicant, the Tribunal accepted that she was vulnerable and considered the risk of inadequate reception support. The evidence did not establish that she was likely to be detained. The available reception, health and psychological services, together with the information to be provided to the Hungarian authorities and her demonstrated ability to seek assistance, meant that the article 3 threshold was not arguably met.

4. For the second applicant, previous absconding made detention on return likely. Detention alone did not engage article 3. The recent evidence alleging violence by detention officers was diffuse, vague and substantially unparticularised. It did not meet the required threshold. The limited use of leashes and handcuffs also did not attain the minimum severity required by article 3.

5. The Tribunal was not bound by HK (Sudan) v SSHD, [2014] EWCA Civ 1481, because it was an ex tempore decision of a single Court of Appeal judge on a judicial-review permission appeal. It nevertheless agreed with that decision's assessment of the evidence. In strict EU-law terms, the material established neither a relevant systemic shortcoming nor substantial operational problems in Hungary.

• Upper Tribunal (Immigration and Asylum Chamber): The first applicant renewed an application after an initial refusal of permission on 25 April 2014. The second applicant's oral permission hearing was joined with it. The Tribunal dismissed both applications on their merits and, when judgment was issued in draft, refused permission to appeal to the Court of Appeal.