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

In a Dublin return case, a human-rights claim is “clearly unfounded” only where no properly directed tribunal could find substantial grounds for a real risk of Article 3 treatment. The judge may assume that claimant evidence capable of acceptance is true, while weighing country evidence, individual vulnerabilities, the presumption that a listed receiving state will comply with its obligations, and the UNHCR’s assessment. Article 3 may impose heightened obligations towards vulnerable asylum-seekers, including those with mental illness, beyond the ordinary medical-return threshold. Where the evidence shows no real risk, individual assurances are unnecessary. A private NGO report tendered as expert evidence must comply with applicable procedural standards, subject to case-management dispensation where fairness permits.

Four asylum-seekers challenged certificates issued by the Secretary of State under paragraph 5(4) of Part 2 of Schedule 3 to the Asylum and Immigration (Treatment of Claimants etc) Act 2004. The certificates treated their Article 3 claims against removal to Bulgaria under the Dublin arrangements as clearly unfounded and prevented in-country appeals to the First-tier Tribunal.

Garnham J considered later evidence about Bulgaria and upheld the certificates, finding that the claims were clearly unfounded as at 18 April 2016: [2016] EWHC 857 (Admin). The appellants challenged the weight given to UNHCR evidence, their personal histories and vulnerabilities, formal Bulgarian arrangements, the presumption of compliance, and a private Amnesty International report. The central issue was whether the judge had applied the law correctly in concluding that no real Article 3 risk was shown.

The appeal was dismissed. Sales LJ gave the judgment, with Lindblom LJ and Sir Stephen Richards agreeing.

1. Under paragraph 5(4) of Part 2 of Schedule 3 to the Asylum and Immigration (Treatment of Claimants etc) Act 2004, a claim is clearly unfounded only if it lacks a good arguable case capable of being upheld by the First-tier Tribunal. The question is whether a properly directed tribunal could find substantial grounds for believing that removal would expose the claimant to a real risk of treatment contrary to Article 3. Evidence capable of acceptance, including claimant accounts and relevant medical reports, is considered on the assumption that it is true.
2. The appeal was governed by CPR Part 52.11 because it was commenced before October 2016. The Court of Appeal could intervene only if the judge’s assessment was wrong. Weighing conflicting evidence remained primarily a matter for the judge, subject to legality and rationality.
3. The judge was entitled to attach substantial weight to the evidential presumption that Bulgaria would comply with its ECHR and EU obligations and to UNHCR’s specialised assessment. That did not remove the need for an individual assessment, particularly where specific vulnerabilities were alleged.
4. The Reception Directive, and the Strasbourg reasoning in MSS v Belgium and Greece (2011) 53 EHRR 2 and Tarakhel v Switzerland, were capable of informing a heightened Article 3 standard for vulnerable asylum-seekers. A significant risk that poor conditions would cause marked deterioration in recognised mental illness, or that no treatment would be available, could make an Article 3 claim well arguable beyond the ordinary approach in N v United Kingdom (2008) 47 EHRR 885. This guidance was expressed conditionally and did not affect the result.
5. The appellants’ evidence did not show circumstances sufficiently unusual or special to take them outside the general position in Bulgaria. Their experiences on initial entry did not establish the likely conditions on Dublin return. Since no real risk of Article 3 mistreatment was established, individual assurances were unnecessary. The judge was also entitled to weigh formal Bulgarian arrangements against adverse NGO evidence and was not required to address every adverse point separately where his reasons were adequate.
6. The private Amnesty International report did not comply fully with CPR Part 35 and the Tribunal Practice Direction. Courts and tribunals may dispense with procedural requirements where justified by case management and fairness, but there is no routine organisational exemption. The report’s reduced weight was lawfully assessed.

• Court of Appeal (Civil Division): dismissed the appeals and upheld the certification decisions, applying the review approach under CPR Part 52.11: [2017] EWCA Civ 1871.
• Administrative Court: Garnham J considered the certification decisions and further evidence, found the Article 3 claims clearly unfounded, and refused to quash the certificates: [2016] EWHC 857 (Admin).