In HK, HH, SK and FK v Secretary of State for the Home Department [2017] EWCA Civ 1871 the Court of Appeal found that asylum seekers could be returned to Bulgaria under the Dublin III Regulation. Removal would not violate the appellants’ Article 3 rights, despite medical reports on their poor mental health and NGO evidence on the poor treatment of asylum seekers by the Bulgarian authorities.

Two aspects of the case are valuable for lawyers representing asylum seekers. First, Lord Justice Sales made some promising obiter comments on the (widening) scope of Article 3. Second, the Court of Appeal reiterated the importance of NGOs complying with expert evidence requirements.

Challenging removal 

The grounds of appeal sought to challenge the factual findings of the High Court, rather than the judge’s application of the law. To use the court’s words (at paragraph 35):

This appeal is advanced on narrow grounds. It is not said that the judge gave inadequate reasons, nor that his judgment contains a misdirection to himself, nor that he reached a conclusion which was not properly open to him on the evidence. Instead, the four grounds of appeal are relied upon as showing that in various ways the judge has not applied the law correctly in light of the evidence. In my judgment, however, no such inference can be drawn. The judge has directed himself properly on the law, has applied it properly to the facts and has reached lawful and rational conclusions regarding the risk which the appellants would face upon return to Bulgaria.

The Court of Appeal flatly rejected two of the four grounds, but made interesting comments in relation to the two others.

The scope of Article 3

Article 3 is a well-known dead end when seeking to prevent removal on the grounds of medical treatment. Unsurprisingly, the Court of Appeal found against the asylum seekers on this ground, because (as the appellants accepted) they could not meet the “stringent test” laid down in N v United Kingdom (application no. 26565/05). In effect, Article 3 can only prevent deportation where a person is nearing death. This is an impossibly high threshold: few cases succeed.

The appellants tried to get around N v UK by arguing that they represented an “especially vulnerable” category of people. They contended that their vulnerability was further increased by their mental illnesses and (for three of the four) their status as victims of torture. As such, Article 3 may require that the UK has increased obligations to ensure their medical care, which would be breached by removal to Bulgaria.

In response to this argument, Sales LJ made some interesting comments drawing on Strasbourg case law (specifically MSS and Tarakhel) that may prove useful in future cases.

44. In my view, there is force in the appellants’ contention that the test under Article 3 for proper treatment of an asylum seeker in relation to medical needs they may have, including in relation to any mental illness they have, involves a heightened set of obligations on the receiving state, beyond those laid down in N v United Kingdom.

…

49. If it could be shown 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, I consider that it is well arguable that… Article 3 would be engaged.

He ultimately decided that the High Court judge was entitled to find that the asylum seekers had no special vulnerabilities and their treatment in Bulgaria would not violate Article 3. Nevertheless, these promising comments offer fertile ground for an overdue revisiting of the law to extend Article 3 protections for asylum seekers beyond the N v UK “near-death” threshold.

Misusing expert evidence

This ground considered “an independent expert opinion” prepared by Amnesty International for litigation. The report did not have a single author able (if necessary in the interests of justice) to attend a hearing for cross-examination. As such, the report did not comply with the standards required by CPR Part 35. The High Court judge admitted the report into evidence “with reluctance.”

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The judges granting permission for appeal had indicated that the Court of Appeal “might wish to make observations about the use and form of expert reports in judicial review cases of this kind”. The Court of Appeal accepted this invitation in forceful terms, emphasising the importance of the CPR and the Tribunal Practice Direction:

Amnesty International rather gave the impression, perhaps unintentionally, that it would like to be regarded as exempt as an organisation from the requirements of CPR Part 35 and section 10 of the Tribunal Practice Direction. However, I can see no good reason why Amnesty International should be accorded routine exemption from the requirements of those procedural codes governing the admission of expert evidence. The codes are intended to ensure that such evidence is only admitted where it is fair to both sides to do so and that is in a form which provides the greatest assistance to the court or tribunal.

In short, an outstanding organisational reputation does not grant an exemption from the requirements of an expert report. The Court of Appeal made it clear that the CPR and Tribunal Practice Direction are more than mere formalities – they are crucial guardians of fairness between the parties.

It is important that practitioners ensure that any private expert reports obtained for clients are compliant. In particular, the default position is that anonymity is not permissible. Expert reports must be the reasoned opinion of a single, identifiable individual open to cross-examination, so that his or her conclusions are accorded full weight by the courts.

Overall, despite the outcome, HK, HH, SK and FK offers promise for practitioners (armed with fully compliant expert reports) seeking to challenge Dublin removals under Article 3.