Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION

[2017] CSOH 97

 

P358/15

OPINION OF LORD BOYD OF DUNCANSBY

In the cause

MR FOR JUDICIAL REVIEW

Petitioner

against

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Pursuer:  Dewar QC;  Caskie, Drummond Miller LLP

Defender:  McIlvride QC, Pirie; Office of the Advocate General

5 July 2017

[1]        The petitioner is a Syrian who has been granted refugee status in Bulgaria.  The Secretary of State has asked the Bulgarian authorities to take him back under the Dublin Regulations.  They have agreed to do so and have confirmed his status as a refugee.  The petitioner made representations to the Secretary of State as to why he should not be sent back.  These were taken as human rights representations and were refused.  By a decision dated 15 September 2016 the Secretary of State certified that they are clearly unfounded.  The petitioner seeks to reduce that decision.

[2]        I heard a very similar case involving three petitioners resisting return to Italy under the Dublin regulations.  These included both a beneficiary of international protection and two asylum seekers.  In each case the petitioner claimed that their return to Italy would infringe Article 3 ECHR.  In each case the Secretary of State certified the claim as clearly unfounded.  The centrepiece of the case for the petitioners was an expert report commissioned by them from a Dr Elena Consiglio.  Having heard the arguments I refused the petitions;  IMI and others v Secretary of State for Scotland [2016] CSOH 102.

[3]        The law on certification and the approach of the courts to a Judicial Review of a clearly unfounded certificate is set out in paragraphs 9 to 13 of IMI.  I adopt that for present purposes noting the obvious change that the country involved is Bulgaria.  Bulgaria is an EU member state and must comply with the Qualifications Directive, described at paragraph 15(c) of IMI.

[4]        In paragraphs 55 to 75 of IMI I reviewed the relevant case law.  I did not understand that any substantive issue was taken by parties to that analysis and again I adopt that for the purposes of this opinion.

[5]        At the substantive hearing both Mr Dewar and Mr McIlvride adopted their respective notes of argument and made oral submissions.  I do not intend to rehearse these but will make reference to them where necessary for the disposal of the petition.

[6]        The petition is silent on the petitioner’s circumstances.  It appears from the decision letter that his date of birth is 12 January 1996 which would make him21 years old.  He is apparently single.  The petitioner’s note of argument in paragraphs 8 to 11 notes that the petitioner arrived in Bulgaria on 15 August 2015.  He spent 5 days in prison before being detained at the Harmanli detention centre until he was given refugee status.  He was released on 10 November 2015.  He returned to Syria the next day having slept in a park overnight.  Conditions in the Harmanli detention centre were criticised in the UNHCR report of January 2014.  From the ex parte statements in the note of argument it appears that the centre was overcrowded and that conditions were to, say the least, unpleasant and unhygienic.

[7]        So far as the test to be applied is concerned that is set out in IMI but in brief; 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.  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.

[8]        In my opinion the issue for me is whether there is a sufficiency of evidence  which, taken together with the other matters which the First-tier Tribunal  would require to consider, would entitle the First-tier Tribunal to hold the human rights claim established.

[9]        Mr Dewar relied on three elements in the evidence before the court.

1. The UNHCR reports of 2014
2. The UN Human Rights Committee decision of December 2016
3. A report from Ms Radostina Pavlova described as an independent legal expert

 

UNHCR reports
[10]      As a result of concerns about conditions for asylum seekers in Bulgaria the UNHCR issued a report in January 2014 in which it called for the suspension of transfers to Bulgaria under the Dublin Regulations.  The report said that conditions would be re‑examined in April 2014.

[11]      In the report of April 2014 the UNHCR noted the progress that had been made.  It noted that serious gaps remained but said that the deficiencies were no longer such as to justify a general suspension of Dublin transfers to Bulgaria.  However there may be reasons precluding the transfer of certain groups of individuals.  It therefore recommended that Dublin participating states conduct an individual assessment as to whether a transfer would be compatible with States obligations to protect an individual’s fundamental rights under EU and international law, in particular with regard to asylum seekers who have specific needs or vulnerabilities.

[12]      With regard to those qualifying for refugee status the report noted that the Government was working on an integration plan.  However there continued to be a gap with regard to access to health care.  Refugees had difficulties in securing employment due to the adverse economic conditions in Bulgaria but also because of structural obstacles and lack of targeted support. There was a lack of adequate and affordable housing which seriously affected the integration of beneficiaries of protection into Bulgarian society.  In its recommendations the UNHCR urged the rapid implementation of integration programmes especially as regards access to education, housing and livelihood opportunities.  It also noted concern about the gap in health care provision for beneficiaries of international protection and urged the authorities to ensure continued access to health care.

[13]      In conclusion the UNHCR noted as follows, “UNHCR will continue to closely monitor developments in Bulgaria and will issue further observations if and when it may be warranted.” The UNHCR has an office in Sofia.  To date no further observations have been issued.

 

UN Human Rights Committee
[14]      In December 2016 the UN Human Rights Committee issued a report arising out of the proposed transfer to Bulgaria by Denmark of a Syrian couple who had been granted refugee status in Bulgaria.  The woman was five months pregnant and the man had a heart condition. They 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 noted that Denmark had failed to seek proper assurances that the couple and their child would be received in conditions adapted for the baby’s age and family’s vulnerable status and to take necessary measures to ensure that the man received the medical treatment that he needs.  The Committee, by a majority, concluded that in the particular circumstances the removal of the couple and their child to Bulgaria without proper assurances would amount to a violation of Article 7 of the International Covenant on Civil and Political Rights (equivalent to Article 3 ECHR).

 

Expert Report
[15]      The petitioners produced a report prepared by Radostina Pavlova dated 19 December 2016.  She is described as a legal expert at the “Center for Legal Aid – Voice in Bulgaria”.  This organization is in turn described as a non‑ profit organization founded in the public interest in 2009:

“with the mission to protect the rights of asylum seekers, refugees and migrant on the territory of Bulgaria through legal aid, legal and administrative consultation and representation in front of national and European institutions and jurisdictions.”

 

[16]      Ms Pavlova’s qualifications include a law degree and masters degrees in Russian and East European Studies and Migration and Settlement Studies.  She has two and a half years’ experience working in the Center for Legal Aid – Voice in Bulgaria and during that time has published studies and articles which are relevant to the topic.

[17]      Ms Pavlova’s conclusions were to the effect that even although the petitioner had been granted refugee status the lack of state provided integration supports; the high risk of homelessness and almost guaranteed destitution; the obstructed access of refugee status to the healthcare system and the widespread officially sanctioned xenophobic treatment and violent attacks on refugees pose serious risks to his well‑being in Bulgaria.

 

Assessment
[18]      It appears that the petitioner is a young single man with no dependants and no underlying medical conditions.  Accordingly he does not present as having any special vulnerability beyond that of someone in need of international protection.

[19]      Mr Dewar reminded me that while the UNHCR is recognised as having a unique and unrivalled expertise the absence of a report calling for the halt of Dublin transfers does not mean that the country in question has a clean bill of health,  R(EM) Eritrea v Secretary of State for the Home Department [2014] AC 1321 per Lord Kerr at paragraphs 71 and 72.  In this case however the UNHCR has engaged with the conditions in Bulgaria to the extent of calling for a cessation of transfers and then lifting that call, albeit with a caveat.  While I accept that the absence of a call from the UNHCR to cease transfers to Bulgaria is not decisive it is in my opinion significant that in its report of April 2014 the UNHCR said that it would continue to monitor developments and issue observations if and when warranted, and have not done so.

[20]      I do not think that the report from the UN Human Rights Committee assists the petitioner.  The committee was dealing with a couple with a young baby.  They were particularly vulnerable because of the young child and the man’s medical condition.  The finding of a breach of Article 7 of the Covenant is conditional on the State not receiving proper assurances in respect of these matters.  In many ways the Committee could be said to be carrying out the exercise that the UNHCR had in mind in the report of April 2014 when it asked contracting states to carry out an assessment when dealing with asylum seekers with special vulnerabilities.  The assurances which the Committee suggested should be sought were similar to those which the ECtHR deemed appropriate in Tarakhel v Switzerland (2015) 60 EHRR 2B, a case of a family with young children.

[21]      One might conclude from the Human Rights Committee’s conclusions that if the couple did not have a small child and the man did not have a medical condition requiring treatment there would be no violation of Article 7 and nothing to prevent Denmark sending them back to Bulgaria.

[22]      Ms Pavlova in her report details problems with integration, access to healthcare and violence towards refugees which she says pose a serious risk to his well-being.  She says that he will almost certainly be homeless and destitute “which would deprive him of his dignity and may amount to inhuman and degrading treatment in the sense of Article 3 of the ECHR.”

[23]      These issues are of concern.  In large part they echo the kind of concerns raised by the UNHCR in their report of April 2014.

[24]      The issue for me is the same that I faced in IMI; what weight should be given to this report?  In IMI (at para 83) I expressed the view a First-tier Tribunal  would not be entitled in circumstances such as these to conclude that there was a substantial risk of violation of Article 3 on the basis of one privately commissioned report.  Mr Dewar offered some criticism of that observation but I am not persuaded that in general terms the conclusion is wrong.

[25]      In paragraph 80 of my opinion in IMI I quoted Sales J in R(Elayathamby) v Secretary of State for the Home Department [2011] EWHC 2182 Admin where he commented on the use of material from regional refugee support organisations.  The organisation which Ms Pavlova works for is a similar body. As Sales J remarked it does not have the resources nor the general perspective on acceptable standards of protection for asylum seekers which other bodies such as the UNHCR, the ECRI, LIBBE, and the US State Department have.  He also said that reports from such local organisations which are not engaged in a process of dialogue with the authorities risk being rather one sided in the picture they present.  He concluded that such privately commissioned expert reports “ will not usually carry significant weight, when compared with the sort of materials to which the Grand Chamber had regard in M.S.S.,(MSS v Belgium and Greece (2011) 53 EHRR 2) and are more likely to add disproportionately to the time, effort and expense involved in determining the proper outcome on such an argument.  I do not think that M.S.S. type claims should be converted into trials by way of consideration of opposing expert reports.”  Although he was dealing specifically with a refoulement argument the observations are equally applicable to these proceedings.

[26]      Moreover it would be idle to pretend that there are not difficulties with Ms Pavlova’s report.  In the first place although she does have some relevant academic qualifications her experience in this field is limited.  She does not come with any track record of standing as an accepted expert.  She starts her opinion dealing with conditions in reception centres without acknowledging that the petitioner already has refugee status.  Her conclusion is to an extent based on the petitioner’s experience during his previous stay in Bulgaria.  While that is a factor to be taken into account its potency is diminished by his change of status. It is not suggested that he would be returned to Harmanli detention centre.  Various other criticisms of the report are made in the respondent’s note of argument at paragraph 5.8.  Many of these are valid but are of less concern than the ones already mentioned.

[27]      Looking to how a First-tier Tribunal judge would be bound to examine this evidence he would start as Mr Dewar did 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.

[28]      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.

[29]      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.

 

Decision
[30]      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.

[31]      Finally I wish to make two further comments.  First Mr McIlvride relied on the case of Khaled v Secretary of State for the Home Department [2016] EWHC 1394 (Admin) in which Garnham J refused a judicial review involving the return of asylum seekers to Bulgaria.  I noted that some of Ms Pavlova’s sources were considered by Garnham J but beyond that I considered that the decision, relating as it does to asylum seekers rather than to those of refugee status was of limited assistance.

[32]      Secondly Mr Dewar informed me that Khaled was under appeal in the Court of Appeal. As a result of that all cases involving the transfer of asylum seekers, and it appears those who are beneficiaries of international protection have been stayed as have all transfers to Bulgaria pending the outcome of the appeal. I do not consider that this assists the petitioner. A similar position would result in Scotland if cases were sisted pending the outcome of an appeal. That has not happened.

[33]      Accordingly I shall sustain the third and fifth pleas in law for the respondent, repel the petitioner’s pleas in law and refuse the petition.