Introduction

The case of Fathabadi v Advocate General for Scotland ([2020] CSOH 83) addresses the intricate interplay between asylum law, human rights, and international obligations under the European Convention on Human Rights (ECHR). Mr. Kamran Afkhami Fathabadi, an Iranian national, sought asylum in the United Kingdom (UK) after fleeing persecution in Iran due to his conversion from Islam to Christianity. Having previously applied for asylum in Germany, his claim in the UK was subject to the Dublin III Regulation, which determines the Member State responsible for processing asylum applications to prevent multiple applications across different states.

The key issues revolved around the certification of Mr. Fathabadi's Article 3 claim as clearly unfounded by the Secretary of State for the Home Department (SSHD), effectively barring him from appealing this decision to the First-tier Tribunal (FtT). Mr. Fathabadi contested this certification, arguing that it unjustly prevented a substantive review of his potential risk of inhuman or degrading treatment should he be returned to Germany.

Summary of the Judgment

The Scottish Court of Session, in the Outer House, delivered a detailed judgment affirming the SSHD's decision to certify Mr. Fathabadi's Article 3 claim as clearly unfounded. Lady Poole, delivering the opinion, assessed whether the claim met the threshold for invoking Article 3 of the ECHR, which prohibits torture and inhuman or degrading treatment. The court concluded that Mr. Fathabadi's evidence was insufficient to demonstrate a real risk of such treatment if returned to Germany. Consequently, the certification stood firm, and the petition seeking its reduction was denied.

Analysis

Precedents Cited

The judgment extensively references significant precedents that shape the assessment of Article 3 claims in asylum contexts:

• R (EM [Eritrea]) v SSHD [2014] AC 1321: Established the framework for evaluating Article 3 claims, emphasizing the need for a real risk of inhuman or degrading treatment.
• AM (Zimbabwe) v SSHD [2020] UKSC 17: Clarified that Article 3 breaches related to lack of medical treatment require evidence of a serious, rapid, and irreversible decline in health.
• Racheed v SSHD [2019] SC 344: Provided guidance on how courts should approach the certification of claims as clearly unfounded, setting a low threshold for identifying issues to be tried.
• Tsiklauri and Sidamonidze v SSHD [2020] CSIH 31: Further elaborated on the admissibility of new evidence in judicial review applications challenging certification decisions.

Legal Reasoning

The court's legal reasoning centered on the application of Article 3 within the framework of the Dublin III Regulation. The critical assessment hinged on whether there was a "real possibility" that Mr. Fathabadi would face inhuman or degrading treatment upon removal to Germany. The court evaluated two main arguments presented by the petitioner:

• Systemic Unfairness in Germany's Asylum Process: Mr. Fathabadi cited an internet article suggesting a higher rate of asylum claim rejections for Iranians in Germany. However, the court found this evidence insufficient, noting the lack of comprehensive sources like reports from UNHCR or independent NGOs to substantiate systemic failure.
• Health Condition and Access to Medical Treatment: The petitioner argued that his medical condition could lead to severe health deterioration if returned. The court dismissed this claim, referencing the AM (Zimbabwe) case, and noted the absence of medical evidence indicating a real risk of inhuman treatment in Germany.

Ultimately, the court upheld the presumption that Germany adheres to its international obligations under Article 3, requiring substantial and credible evidence to rebut this presumption. The petitioner failed to provide such evidence, leading to the affirmation of the SSHD's certification.

Impact

This judgment reinforces the stringent standards applied to challenge certifications of Article 3 claims as clearly unfounded. It underscores the judiciary's deference to the SSHD's assessments unless compelling evidence suggests otherwise. The decision provides clarity on the necessity for robust and credible evidence when alleging systemic failures or personal risks under Article 3. Future cases will likely reference this judgment to gauge the adequacy of evidence required to contest similar certifications and to understand the boundaries of challenging administrative decisions without substantiated grounds.

Complex Concepts Simplified

Conclusion

The judgment in Fathabadi v Advocate General for Scotland serves as a pivotal affirmation of the standards governing the certification of Article 3 claims under the Dublin III framework. By upholding the SSHD's decision, the court emphasized the necessity for concrete and substantial evidence to challenge certifications deemed clearly unfounded. This case delineates the judiciary's role in balancing administrative efficiency with the protection of individual rights, ensuring that claims invoking fundamental human rights are thoroughly substantiated. As immigration and asylum policies continue to evolve, this judgment provides a critical reference point for both practitioners and claimants navigating the complex landscape of international protection and human rights law.