Khaled v SSHD No 1

Removal of an asylum seeker to another EU member state will breach Article 3 ECHR or Article 4 of the Charter only where substantial grounds establish a real risk of prohibited treatment. The assessment must address both conditions in the receiving state and the claimant’s personal circumstances, including vulnerability.

A safe-third-country certificate may be challenged by judicial review where a properly directed tribunal could conclude that the claim has a real prospect of success. The presumption that an EU member state will comply with its obligations is significant but may be displaced by cogent evidence. Individual assessment remains necessary, particularly for vulnerable claimants.

Five asylum seekers from Iraq, Iran and Afghanistan challenged decisions certifying their claims and proposed removal to Bulgaria. Four also challenged their detention, but this judgment concerned only the safety of return issue.

The Secretary of State had relied on Bulgaria’s responsibility under Dublin III and had certified the claims under Part 2 of Schedule 3 to the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004. The claimants relied on alleged deficiencies in Bulgarian reception conditions, asylum procedures, treatment of vulnerable persons and the risk of refoulement.

The central questions were whether the certificates were clearly unfounded and whether removal would create a real risk of Article 3 or Article 4 ill-treatment, or of refoulement without proper determination of the asylum claims.

1. Certification. The court applied the test whether a properly directed tribunal could conclude that there were substantial grounds for believing that removal would expose a claimant to a real risk of treatment contrary to Article 3 ECHR. If so, certification as clearly unfounded would be unlawful. The same threshold governed the court’s assessment of the evidence, while the Secretary of State’s decision remained subject to anxious scrutiny.
2. Article 3 and Article 4 assessment. The assessment concerned the foreseeable consequences of removal, viewed in the light of conditions in Bulgaria and each claimant’s personal circumstances. The significant presumption that an EU member state would comply with its Convention obligations was supported by the continuing monitoring and conclusions of the UNHCR. The evidence showed substantial improvements in registration, reception capacity, food, medical care and asylum processing. Generalised criticism of accommodation, healthcare, employment, language support and racism did not establish a real risk of Article 3 treatment.
3. Vulnerability. Individual assessment was required, particularly for persons alleging torture or other serious harm. The evidence did not show that any claimant’s circumstances made return to Bulgaria unsafe. The claimants therefore had no realistic prospect of succeeding before a tribunal.
4. Refoulement. The statutory irrebuttable presumption in Schedule 3 did not apply to claims founded on the Charter. Such a claim could be advanced by judicial review without a declaration of incompatibility under section 4 of the Human Rights Act 1998. Nevertheless, the evidence disclosed no significant risk that Bulgaria would refoule any claimant without properly determining the asylum claim.
5. Disposition. Each challenge to certification failed. Removal would not breach Article 3 ECHR or Article 4 of the Charter, and none of the claimants had established a real risk of refoulement. The court reserved the consequential order for further submissions.