Wednesday 19 September 2012

Religious Persecution and a Right to Asylum in the European Union

A decision by the European Court of Justice (nb NOT the European Court of Human Rights) will have an impact on how applications for Refugee Status are considered in European Union Countries.

The case Bundesrepublik Deutschland v Y & Z [2012] EUECJ C-71/11  involved two Ahmadi Muslims who went to Germany from Pakistan and were threatened with deportation.  They appealed to the ECJ on the basis that the German Courts were wrongly applying European Council Directive  2004/83/EC which establishes a common definition of refugee status throughout the EU.  In Pakistan the Amhadi Muslim community suffers a considerable degree of Religious persecution including the fact that they are not allowed to call themselves Muslims or call their Mosques "Mosques".  

The German Courts originally decided that the two could be deported because they would still be able to have their beliefs the law merely prevented them publicly practicing their beliefs.  As the ECJ put it in para 42 of its decision

there could be deemed to be persecution relevant for the purposes of the right of asylum only where there was interference with the ‘core areas’ of religious freedom, but not where there were restrictions on the public practice of faith,

The ECJ disagreed with this approach and decided that a fear of religious persecution was well founded where (para 81)

it may reasonably be thought that, upon his return to his country of origin, he [the refugee] will engage in religious practices which will expose him to a real risk of persecution. In assessing an application for refugee status on an individual basis, those authorities [ie immigration authorities] cannot reasonably expect the applicant to abstain from those religious practices.

The point that merely being allowed to pray privately is not enough to prevent persecution is particularly interesting because it goes contrary to the arguments of the UK government in the 4 Religious Freedom cases currently before the European Court of Human Rights, the UK Government and indeed UK courts have taken the view that Religious practice is entirely private and perhaps this case may have some relevance in causing that view to be questioned. 
The logic of the ECJ decision is similar to that in a decision made by the UK Supreme Court in HJ (Iran) v Secretary of State for the Home Department (Rev 1) [2010] UKSC 31 - which related to Gay Asylum seekers from Iran.  The Supreme Court had held that Homosexuals had to be allowed to practice Homosexuality openly otherwise they were being persecuted and that logic should also be applied to the practice of a religion


Paul said...

The following recent Scottish case may interest you. In it the HJ case is applied to a Pakistani convert Christian even though the Home Secretary's Counsel argued otherwise. See especially para 46:
"[46] When counsel for the petitioner referred me to paragraph 11 of Lord Hodge's Opinion in AB I raised what I thought was an obvious point about HJ (Iran), the case about homosexuality. In his turn senior counsel for the respondent submitted that the ratio of HJ (Iran) does not apply. I disagree. I therefore start from the proposition that if a proper respect for human rights entails that individuals should be entitled to live out their sexuality openly, they should be as much entitled to live out their religious faith; and that no one should be expected to veil his or her faith from a motive of self-protection. [HJ (Iran) v Secretary of State for the Home Department [2010] UKSC 31 applied in MT (Ahmadi - HJ (Iran) Pakistan) [2011] UKUT 277 (IAC)]."

Paul said...

The link to the case in mentioned:

Paul de Mello said...

Thank you for your blog, it is very timely considering that the Pew Forum report on global religious restrictions was in the UK media in the same week [1] , which noted rising levels of hostility towards religious groups, even in the UK. Interestingly, this correlates with the Home Office 10yr review of discrimination, which found that[2]:

[i]..."Colour/race and religion are now dominant reasons cited significantly more frequently than any other"

... "A quarter of those feeling discriminated against cite religion is the reason (as high as 31% in 2008)"[i].

I have been following the "c-71/11" case ever since the UNHCR gave its opinion on the matter[3]. I t fits with a theory I have that Sexuality and Transgenderism are socially constructed aspects of the ‘forum internum’ , and so the same distinction between thought and manifestation will apply as it does to belief-related laws.

I hope that the concepts of this ruling, combined with the UKSC RT(Zimbabwe) Vs Home Office [4], will develop to provide better protection globally for all who need it.





kyle campbell said...

"The Supreme Court had held that Homosexuals had to be allowed to practice Homosexuality openly otherwise they were being persecuted and that logic should also be applied to the practice of a religion"

Wrong - Sexuality and skin colour are genetic, however a belief in religion is a choice. These are not the same things, but I agree all should be free to practise them. My point is to be carefull then how the law is defined. Blasphemy laws are wrong and dangerous.

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