Syrian nationals challenge proposed removal to Bulgaria

The Upper Tribunal has heard a challenge by a cohort of Syrian nationals regarding the certification of their asylum claims on the basis that they could be returned to a safe third country, in this case Bulgaria.

It is believed that this case is the first of its kind since the United Kingdom left the European Union and the Dublin III regulations ceased to apply. Pre-Brexit, there was an unsuccessful challenge to the certification of asylum claims on the basis of return to Bulgaria in the case of HK (Iraq) & Ors, R (On the Application Of) v The Secretary of State for the Home Department [2017] EWCA Civ 1871.

Judgment in the current case was reserved and it is anticipated that it will be produced shortly.

Background 

The case initially involved five Syrian asylum seekers who, prior to their arrival in the UK, had entered Bulgaria after fleeing Syria. Each applicant reported appalling ill-treatment in Bulgaria including torture, pushbacks, imprisonment, sexual abuse, racism and street homelessness. After being forcibly fingerprinted in Bulgaria, the individuals were each granted subsidiary protection, which is a status conveyed by Bulgaria to over 99% of recipients of international protection. They claim to have received no assistance from the Bulgarian state and as a result were excluded from accessing accommodation, the job market, and healthcare.

The men fled Bulgaria and sought asylum in the United Kingdom, whereupon they were notified of the intention to find their claims inadmissible on the basis that they had previously been present in Bulgaria. Their claims were accordingly certified in late November 2024, and they were detained under immigration powers pending removal directions.

A number of the men underwent Rule 35 assessments whilst detained which documented their ill-treatment whilst in Bulgaria.

Four of the individuals had their removals deferred after legal action. However, one individual was forcibly removed on 30 December 2024. He reports that he was imprisoned on return before becoming street homeless.

The claims are made in the context of Bulgaria’s longstanding  ‘zero integration’ policy in which the Bulgarian government removed state organised refugee integration policy, instead putting the burden on the third sector. The claims are also made in the context of many reports of brutal treatment, including pushbacks and physical assaults using weapons and dogs. Legal challenges in various European countries have subsequently been brought, including at the European Court of Human Rights.

The applicants have challenged the certification of their claims as well as the Home Office’s assessment that Bulgaria is a safe third country. It is common ground that the Tribunal is permitted to consider evidence up to the date of the hearing. So whilst the certification decisions were dated December 2024, the Tribunal was able to consider contemporaneous evidence, including expert evidence relating to the situation in Bulgaria.

Permission was granted by the Upper Tribunal leading to a three-day hearing in which the Upper Tribunal considered the individual facts of the applicants as well as thousands of pages of objective pages from a variety of sources.

Grounds of challenge

The framework surrounding inadmissibility was amended by the previous Conservative government in support of their flagship Rwanda policy. In effect, there is no requirement for the Home Office to consider the merits of the individual’s underlying asylum claim, there is no right of appeal, and the Home Office can find an individual’s asylum claim to be inadmissible if they have a specified connection to a third country which is assessed as safe.

A safe third country is defined as a country in which a person’s life and liberty are not threatened by a refugee convention reason, there is no risk of onward refoulement and where the person is entitled to seek protection in that state.

A specified connection is established where the Home Office has evidence that an individual has been granted protection or would be able to apply for protection in safe third country.

The Home Office argue in this case that the applicants have a specified connection to Bulgaria as individuals with subsidiary protection, that they are able to access the benefits of that protection, and are not at real risk of refoulement.

However, the applicants claim that they would be at real risk of enforced homelessness in Bulgaria, relying on the test in Limbuela v SSHD [2005] UKHL 66 and relying on HK & Ors where it was found that “there was a significant risk that an asylum seeker with a recognised mental illness would be subjected to such poor living conditions in the state to which he was to be returned that he would suffer a marked deterioration in that illness or that he would receive no treatment in that state to cope with its effects”.

The first ground of challenge was that the certification of the applicants’ human rights claims as clearly unfounded was irrational as they were not bound to fail. In particular, the applicants argued that they would be at real risk of ill-treatment on return to Bulgaria as a result of Bulgaria’s zero integration policy. They claim that they would be forced into homelessness as a result of the deliberate acts of the Bulgarian state, would not be able to access healthcare, and would not otherwise be able to integrate if returned.

The second ground raised was that they were at onward risk of refoulement in breach of Article 3 ECHR. This ground follows reports that Syrians in Bulgaria are allegedly being coerced into signing documents for ‘voluntary return’ to Syria.

The third and final ground of challenge was that the Home Office failed to comply with her Tameside duty of inquiry when certifying the applicants’ protection claims. This grounds relates to the Home Office’s refusal to investigate the allegations of ill-treatment made by the applicants [and others] when attempting to forcibly return them to Bulgaria.

Conclusion 

As noted, it is believed that this case is the first of its kind since the Dublin III regulations ceased to apply post-Brexit. However, it seems likely that the Government will attempt further return agreements with other countries in the European Union so the case may be of some significance in future.