Returns to a safe 3rd country can breach Article 3 if it would significantly affect a claimant’s mental health
On 10 Mar 2026, the Upper Tribunal ruled in R (FH and Ors) v Secretary of State for the Home Department that returns to a safe 3rd country can breach Article 3, even if the individual already has protection status there, if it would severely affect their mental health.
Under Article 3, no one should be subjected to torture, inhuman or degrading treatment or punishment.
Several Syrian nationals who had been granted international protection status in Bulgaria subsequently came to the UK and claimed asylum, alleging that they had suffered severe mistreatment from the Bulgarian authorities such as torture, imprisonment, sexual abuse, and racism. Furthermore, they alleged that despite being recognised as refugees in Bulgaria, they received no accommodation or other assistance, leading to homelessness. In the UK, they were diagnosed with PTSD and depression, among other mental health conditions.
The Home Office issued directions, attempting to force all of them to return to Bulgaria. The Home Office’s position was that the asylum claims were inadmissible – not only had they passed through a safe third country and claimed asylum, but they had even gained protection status.
The Syrian nationals challenged this on three grounds:
- They said it was irrational of the Home Office to certify their human rights claim in the UK as unfounded – it was not guaranteed that their human rights claim would fail
- They claimed that other Syrians in Bulgaria are being coerced signing voluntarily returns to Syria, and that because of this, there was a risk of onward refoulement (risk of being returned to Syria, the original place they were fleeing persecution from) which would breach their Article 3 right
- They claimed that the Home Office failed to carry out a duty of inquiry when certifying their human rights claims, specifically that a previous case (Secretary of State for Education and Science v Tameside Metropolitan Borough Council [1977] AC 1014) compels the Home Office to do so (called a “Tameside duty”).
The starting point was to test whether the cases had a realistic prospect of success. The Upper Tribunal, who agreed that Bulgaria had poor medical care, especially in regards to mental health. However, this was not unique to migrants; as such, it was not discriminatory. It also was not of such a poor standard that it would breach their Article 3 right.
The Upper Tribunal also dismissed the importance of their claims that they had been detained, beaten and mistreated. If this was the case, the Upper Tribunal stated it was not a real risk of harm. They were a series of singular offences perpetuated by individuals, rather than a widespread risk of harm from the Bulgarian state, which was deemed by the Upper Tribunal to generally comply with its international obligations to protect refugees.
The Upper Tribunal also found that the risk of homelessness was minimal, stating that most people are able to find work and accommodation, if not arranged by the Bulgarian authorities, than by non-government organisations. They observed that the claimants were young and able bodied, and could try to find assistance.
Additionally, the Upper Tribunal did not find that there was a real risk of refoulement. There was no reliable evidence that Bulgaria forced or coerced people to voluntarily return to Syria. They referred to an earlier case, High Court in HK (Iraq) where the judge found that Bulgaria’s asylum system, was not so fundamentally flawed that there was a real risk of refoulement. Although the Upper Tribunal went on to examine the evidence, including an expert report, it was not sufficient.
Finally, they found that the Home Office did not have a duty to ensure that Bulgaria’s entire refugee system was safe or fair. This was not deemed to be a legal duty, nor was it a practical expectation.
However, the Upper Tribunal did find in favour of one of the Syrian claimants, AS. They found clear evidence that his physical and mental health would deteriorate rapidly upon his return to Bulgaria, to point that he could potentially end his life. As a result, his removal was prevented pending further review.
If you are seeking to challenge removal directions, please contact our team urgently at 020 8995 3556 for expert advice.
By: Tiffany Carpenter