The Court of Justice on religious persecution: no need to hide!

About a month ago, the Court of Justice made a long-awaited judgment in cases Y and Z. The judgment is particularly important for EU asylum law. The applicants in the main proceedings were Pakistani nationals who applied for asylum in Germany on religious grounds. They stated that because they exercised their faith as members of the Ahmadiyyah (a minority community), they would face prosecution and possible detention and therefore should be recognized as refugees. The German Federal Administrative Court (Bundesverwaltungsgericht) decided to refer questions to the Court of Justice, which it asked to set out the circumstances in which an infringement of the freedom of religion may constitute an ‘act of persecution’ sufficient to grant refugee status within the meaning of Directive 2004/83/EC. This Directive seeks to establish minimum standards and common criteria for all Member States regarding the recognition of asylum seekers as refugees within the meaning of Article 1 of the Refugee Convention.

First of all, it should be noted that in international asylum law it is commonly assumed that not all human rights violations amount to acts of persecution in the sense of the Refugee Convention, but only those that are perceived as risks to the life and being of a person (for example when a person risks death or torture because of his or her political opinion). This is the main reason why this is a huge judgment in the field of asylum law: it goes into the concept of persecution, and the role that human rights play in defining the refugee.

In answering the questions, the Court initially seems to endorse the traditional view by stating that not just any interference with the right to religious freedom as guaranteed by article 10 of the Charter corresponding with article 9 of the European Convention on Human Rights (ECHR) constitutes an act of persecution that would oblige a state to give refugee status as defined in article 2(d) of the Directive. A ‘severe violation’ of religious freedom is required. What does this mean? Obviously, infringement of the freedom of religion is not enough, a violation has to be established. This is normally done by applying the standards of article 52(1) of the Charter, which provides that the limitation of a right must be provided for by law and must meet the requirement of proportionality, i.e. it must be necessary and must meet objectives of general interest (par. 60). But it seems unrealistic to apply the limitation clause of the EU Charter in the context of a state that is not a Member State. Otherwise, this would mean that the laws in Pakistan regarding religious freedom are to be measured against the objectives of general interest of the EU.

On the other hand, in answering the national judge’s second question, the Court clearly states that acts that may constitute a severe violation include serious acts which interfere with the applicant’s freedom not only to practice his or her faith in private circles, but also to live that faith publicly. The Court of Justice therefore rejects the distinction between acts that interfere with ‘core’ areas of religious freedom and those that interfere with its external dimension (religious activities in public), which was initially made in German case law. I think the Court is correct in taking this approach, because the provisions of the Directive, in particular article 10 (“worship in private or in public”), do not give any indication of an answer otherwise, nor do the provisions regarding religious freedom in the EU Charter or the ECHR.

The question remains what should be considered a ‘severe’ violation. The Court states that this should be established on the basis of the nature of the repression inflicted on the individual and its consequences. The Court concludes that a violation of the right to freedom of religion may constitute persecution within the meaning of Article 9(1) of the Directive where an applicant for asylum, as a result of exercising that freedom in his or her country of origin, runs a genuine risk of being prosecuted or subjected to inhuman and degrading treatment or punishment. In assessing such a risk, both objective and subjective factors should be taken into account (that is, that even when a certain religious practice is not prescribed by faith or the religious community, the fact that to a particular person a religious practice is an important element of his or her faith should be taken into account).

The third and last question is rephrased by the Court as ‘seeking to ascertain whether Article 2(c) of the Directive–the definition of refugee–must be interpreted as meaning that the applicant’s fear of being persecuted is well-founded where such a person can avoid exposure to persecution in his country of origin by abstaining from certain religious practices’. The answer to this question seems clear cut at first instance. The Court states that in assessing an application for refugee status on an individual basis, authorities cannot reasonably expect the applicant to abstain from certain religious practices (para. 80). Based on the definition of refugee in article 2 of the Directive, a refugee is a third country national who faces a ‘well founded fear’ of being persecuted in his country of origin for reasons of race, religion, nationality, political opinion or membership of a particular social group. An indication of a well-founded fear is the fact that an applicant has already been subject to persecution or serious harm or to direct threats of persecution or harm (article 4 under 4 of the Directive). While the applicants in this case hadn’t yet been subjected to such a fear, the Court found no support in these provisions for the requirement that one should abstain from a religious practice in order to avoid such a fear. The general reasoning of the Court seems to imply that this requirement could not be set for other categories in similar situations either, such as asylum seekers who fear prosecution for their homosexual orientation, or ‘westernised’ women who fear they will be subjected to persecution of returned to their home country.

However, the answer is not so clear cut as it seems, because it states that ‘the applicant’s fear of being persecuted is well-founded if, in the light of his personal circumstances, the competent authorities consider that it may reasonably be thought that, upon his return to his country of origin, he will engage in religious practices which will expose him to a real risk of persecution’ (para. 80). State officials could, and probably will, interpret this sentence as meaning that they cannot require abstention from practicing only where authorities reasonably expect that the asylum seeker will actually perform the practice. And of course, this is an assessment that is eventually made by the authorities themselves…

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