Syrian asylum-seeker wins appeal for re-hearing of human rights claim against removal to Bulgaria

The Inner House of the Court of Session allowed an appeal by Mohammad Racheed against a Lord Ordinary’s ruling refusing a petition for judicial review against a decision of the Home Secretary to reject his claim under Article 3 of the European Convention on Human Rights (ECHR), which provides that “no one shall by subjected to torture, inhuman or degrading treatment”.

The effect of a successful challenge by judicial review would allow the petitioner to appeal from within the UK to the First-tier Tribunal against the decision to remove him and for the First-tier Tribunal to determine on the evidence whether the petitioner’s claim of a violation of his rights under Article 3 ECHR was made out. 

‘Homeless and destitute’

Lady Paton, Lady Clark of Calton and Lord Malcolm heard that the 23-year-old Syrian national fled his home country in 2014 and claim asylum in Bulgaria, where he claimed he spent months in a camp where conditions were described as “very bad and Article 3 non-compliant”. 

Having been granted refugee status, he was released from the camp but was left homeless, destitute with no assistance and no Bulgarian identity documents. 

Unable to speak Bulgarian, he had no idea how to find support and was at risk from criminal gangs with no way of obtaining protection. 

In consequence, he fled Bulgaria in fear of his life and returned to Syria but fled again and sought asylum in the UK.

In January 2015 a formal request was made by the UK authorities under Article 1(b) of the Dublin III Regulations inviting Bulgaria to accept responsibility, but the Bulgarian authorities rejected responsibility for the petitioner and stated that they had granted the petitioner refugee status and thus the case fell out of the Dublin remit. 

Thereafter further contact was made by the UK authorities and, by letter dated 23 February 2015, the Bulgarian Chief Directorate Border Police confirmed the petitioner’s status and stated they were “ready to take him back”, although the letter contained no information about what would happen to the petitioner and the UK government sought no undertakings about how the petitioner would be treated.

‘Clearly unfounded’

However, the petitioner challenged his removal to Bulgaria on the basis of a breach of Article 3 of the ECHR, only for his claim to be certified as clearly unfounded, which meant he would not be able to appeal until after he had left the UK.

The petitioner sought judicial review and challenged the certification, but the Lord Ordinary refused the petition. 

In the appeal, counsel for the petitioner argued that there was evidence from the petitioner that during his period of months in detention in Bulgaria as an asylum seeker, and thereafter on release when he had refugee status, the conditions were so appalling that his Article 3 rights were contravened.

It was submitted that the evidence produced about the general conditions in Bulgaria for asylum seekers and for refugees, disclosed that the situation faced by refugees in Bulgaria and, in particular, a late returnee such as the petitioner, surpassed the minimum level of severity which would entitle a First-tier Tribunal to legitimately find a breach of Article 3 even in circumstances where there was an evidential presumption that Bulgaria will comply with international obligations. 

Counsel for both parties sought to persuade the appeal court that the judges should consider all the evidence now available and that the decision making should not be limited to a consideration of the decision making of the Lord Ordinary focused on judicial review on Wednesbury grounds of the decision making of the Home Secretary.

Counsel relied heavily on the evidential presumption that Bulgaria will comply with relevant obligations and the absence of any current prohibition of the return of asylum seekers or refugees to Bulgaria by the European Court of Human Rights or by any international organisation such as UNCHR. 

The respondent accepted that it was not for the Lord Ordinary or this court to decide the merits of the case and submitted that the correct test in law was applied by the Lord Ordinary; the test was whether, on any legitimate view of the evidence, the First-tier Tribunal judge could find that substantial grounds existed for believing that there is a real risk that the petitioner would suffer treatment contrary to Article 3 of the ECHR if the respondent removed him to Bulgaria. 

‘Real risk of ill-treatment’

In a written opinion with which both Lady Paton and Lord Malcolm agreed, Lady Clark allowed the petitioner’s appeal.

Lady Clark said: “On the basis of the information before the Lord Ordinary, I consider that there was information sufficient at least to raise a case to be tried as to whether the enforced return of the petitioner to Bulgaria would violate his Article 3 rights and I am not persuaded that the petitioner must necessarily fail. 

“The petitioner seeks to present evidence for consideration by the First-tier Tribunal that despite the presumption that Bulgaria will comply with its ECHR obligations, it is likely that the obligations will not be fulfilled in practice in the reality of conditions current in Bulgaria. 

“Criticisms may be made of the privately commissioned report and other evidence relied on by the petitioner before the Lord Ordinary, but I do not consider that the Lord Ordinary in a judicial review is in the position of a fact finder and he was not well-placed to decide about the weight and interpretation of evidence in a case such as this.”

She added: “The petitioner offers to prove facts about the practical realities of life for refugees such as himself returning to Bulgaria and further offers to prove that there is a real risk of Article 3 ill-treatment to him if there is an enforced return. It is important that the courts do not usurp the fact finding functions of the First-tier Tribunal. 

“In certain circumstances it may be possible and appropriate on the material presented to a Lord Ordinary to come to a conclusion that even taking into account new evidence, the evidence was not capable of overcoming the evidential presumption and the case must necessarily fail. But I do not consider that this is such a case.

“I am fortified in that conclusion when I take into account the additional material presented to this court. The issues raised by the petitioner are complex in fact and law and the weight to be given to evidence is a matter properly determined by the fact finder and not by this court. 

“The detailed nature of the criticisms made by counsel for the respondent of the material before this court merely underlined that the issues involved and the resolution of the evidential material are difficult and are capable of more than one determination. It is certainly not obvious that certification as clearly unfounded was the inevitable conclusion.”