Syrian refugee loses human rights challenge against being sent back from UK to Bulgaria

A judge in the Court of Session upheld a decision by the Secretary of State for the Home Department to certify the claim by “MR” as “clearly unfounded” after ruling that there was “insufficient evidence” to suggest that returning him to Bulgaria would violate his rights under Article 3 of the European Convention on Human Rights, which protects individuals from “inhumane and degrading treatment”.

Lord Boyd of Duncansby heard that the petitioner, 21, arrived in Bulgaria in August 2015 and spent five days in prison before being detained at the Harmanli detention centre until he was given refugee status and eventually released three months later.

The judge explained that the test to be applied was that if the court finds that on any legitimate view of the evidence before it, a petitioner could succeed before the First-tier Tribunal, then it must reduce the clearly unfounded certificate.

“The test is not a high one,” he said. “There is however a strong evidential presumption that contracting states will comply with their obligations under ECHR and with their obligations under the Qualifications Directive.”

Inhumane and degrading treatment

The court was told that as a result of concerns about conditions for asylum seekers in the Harmanli detention centre, the UNHCR issued a report in January 2014 in which it called for the suspension of transfers to Bulgaria under the Dublin Regulations, adding that conditions would be re-examined in April 2014.

In the report of April 2014 the UNHCR noted that serious gaps remained but said progress had been made and that the deficiencies were no longer such as to justify a general suspension of Dublin transfers to the country.

However, it added that there may be reasons precluding the transfer of certain individuals and therefore recommended that Dublin participating states conduct an “individual assessment” as to whether a transfer would be compatible with the obligations to protect an individual’s fundamental rights under EU and international law, in particular with regard to asylum seekers with specific needs or vulnerabilities.

The petitioner also referred to a UN Human Rights Committee report in December 2016 arising out of the proposed transfer to Bulgaria by Denmark of a Syrian couple.

The woman, who was five months pregnant and the man, who had a heart condition, alleged that they had both been the subject of abuse and maltreatment while in Bulgaria and did not have access to adequate health care.

The committee concluded that in the circumstances the removal of the couple and their child to Bulgaria – where they had been granted refugee status – without proper assurances would amount to a violation of Article 7 of the International Covenant on Civil and Political Rights, which is equivalent to Article 3 ECHR.

The petitioner also relied on a report dated December 2016 by Radostina Pavlova, a legal expert at the “Center for Legal Aid – Voice in Bulgaria”, an organisation with a “mission to protect the rights of asylum seekers, refugees and migrants”.

Ms Pavlova’s conclusions were to the effect that even although the petitioner had been granted refugee status the lack of state provided integration support; the “high risk of homelessness” and “almost guaranteed destitution”; the problems with access to the healthcare system and the “widespread xenophobic treatment and violent attacks” on refugees posed “serious risks” to his well-being in Bulgaria, which “may amount to inhuman and degrading treatment” in terms of Article 3 ECHR.

No special vulnerability

However, the judge observed that MR was a young single man with no dependants and no underlying medical conditions and accordingly he did not have any “special vulnerability beyond that of someone in need of international protection”.

In a written opinion, Lord Boyd of Duncansby said: “Looking to how a First-tier Tribunal judge would be bound to examine this evidence he would start with the UNHCR report. The First-tier Tribunal judge would note that conditions in Bulgaria in January 2014 were so bad that it asked contracting states to suspend transfers to Bulgaria under the Dublin regulations.

“The judge would see that this was lifted in April 2014. Bulgaria was not given a clean bill of health and states were asked to conduct an assessment for those with particular vulnerabilities. The judge would note that the UNHCR had said that it would continue to monitor the situation and to issue further observations as and when that was warranted. The judge would note that the UNHCR had not issued any further observations.

“The First-tier Tribunal judge would note that the petitioner is a young single man with no obvious vulnerabilities beyond his refugee status. Accordingly the sort of individual assessment that the UNHCR requested states carry out and the UN Human Rights Committee embarked upon in December 2016 would not be required.”

He added: “So far as Ms Pavlova’s report is concerned the First-tier Tribunal judge would be bound to conclude that it was from a privately commissioned expert with no obvious standing and some limited experience employed by an organisation whose mission is to protect the rights of refugees in Bulgaria through means including representation in front of national and European jurisdictions. In those circumstances the First-tier Tribunal judge would be bound in my opinion to accord it little significant weight.

“For these reasons there is in my opinion insufficient evidence from which a First-tier Tribunal would be entitled to conclude that if the petitioner were returned to Bulgaria these were substantial grounds for believing that there was a real risk that the conditions in Bulgaria would amount to a violation of his rights under Article 3 ECHR.”