Iranian asylum seeker fails to challenge Home Office certification of unfounded claim

Kamran Fathabadi claimed asylum on the basis that he had converted from Islam to Christianity, and thus would face persecution as an apostate if he was returned to Iran.

The case was heard in the Outer House of the Court of Session by Lady Poole.

Certificate of clearly unfounded claim

The petitioner arrived in Germany to seek asylum in January 2016. His claim was refused by the German authorities, who then fined him for not leaving the country when he was required to do so. In August 2019, he left Germany and attempted to reach the UK via France.

After being found on a small boat trying to enter the UK, the petitioner claimed asylum in the UK, despite EU law including provisions designed to avoid the need for asylum applications to be considered in multiple member states. The Home Office ascertained from Germany that it would take responsibility for the petitioner under the relevant legal provisions, because the petitioner had previously claimed asylum there. It then issued directions for the petitioner to be removed from the UK in November 2019.

An agent for the petitioner made representations to the Secretary of State for the Home Department that removing the petitioner to Germany would violate his rights under article 3 of the ECHR. The SSHD issued a decision rejecting this claim and certified it as clearly unfounded. As a result, the petitioner could not appeal to the First-tier Tribunal.

The petitioner sought reduction of this certification to allow him to appeal. It was submitted on his behalf that the cumulative effect of the evidence meant his Article 3 claim was not clearly unfounded or bound to fail. There were two main strands relied on by the petitioner; unfairness in the German system of assessing asylum claims for citizens of Iran; and the impact of a long-term health condition and the difficulty he might experience accessing appropriate treatment in Germany given that his asylum claim had been refused.

The respondent, the Advocate General for Scotland, argued that the court should only consider what would happen to the petitioner on return to Germany and not Iran. The petitioner’s claim of unfairness in the German system was based on one internet article. The Article 3 test was an extremely high one, particularly in the context of access to medical treatment for health conditions. There was a presumption of compliance with international obligations by member states, and the petitioner had provided no material capable of displacing that presumption.

Delay of the inevitable

In her decision, Lady Poole first examined the presumption that states will comply with their international obligations, including article 3 obligations, saying: “In considering whether the petitioner’s Article 3 case is bound to fail before [the] FTT, I accept that it is not for the court to find facts or determine the merits of the petitioner’s Article 3 claim. Nevertheless, in considering whether the case is bound to fail, it is necessary to look briefly at the evidence proffered by the petitioner to rebut the presumption.”

She then examined the petitioner’s evidence that there was systemic unfairness in the German system, saying: “The article says that the left Parliamentary Group points out that religious minorities are persecuted in Iran and apostasy can be punishable by death, and also that the German Government agrees that freedom of belief is a particular problem in Iran. However, the article must be read as a whole. The article also gives statistics showing that significant numbers of Iranians applying for asylum succeeded to some extent.”

She continued: “On no legitimate view would the evidence put forward by the petitioner be found by the FTT to displace the presumption. The Article 3 claim would be bound to fail before the FTT on this ground.”

On the relevance of the petitioner’s medical condition, she said: “The petitioner lived in Germany for some time, during which his health condition (which pre-dated his arrival in Germany) appears to have been managed. At least part of his time in Germany seems to have been after his claim for asylum was refused. The acute health episode from which he had suffered had occurred in 2011 or 2012, and the more recent episode in Scotland had not necessitated any overnight treatment in hospital. His condition had not prevented him from travelling to Germany, or across France and to the UK, including in a small boat.”

Lady Poole concluded: Even looking at all of the matters raised by the petitioner cumulatively, as I was invited to by the petitioner, it is my opinion that there is no legitimate view on which the petitioner’s claim under Article 3 could succeed before the FTT. Given the minimum level of severity necessary to satisfy Article 3, the petitioner’s arguments are so weak, and the evidence produced by him so slim, that there is no real prospect of success before any FTT. To borrow dicta in Racheed v SSHD (2019), an appeal to the FTT from the SSHD’s decision to reject the petitioner’s Article 3 claim could achieve no more than a delay of the inevitable.”

For these reasons, the petition was refused.