Pakistan is an intolerant country where human rights are routinely violated and minorities are persecuted. The paradox is that the country was created because Indian Muslims feared a marginal life among undivided India’s Hindu majority. Within the political campaign for Pakistan itself, however, minority Muslim communities such as the Ahmadis, Ismailis, and Shias formed the vanguard of the All India Muslim League which demanded greater rights for Muslims. It should also not be forgotten that non-Muslim communities such as South Asian Zoroastrians and Christians were Jinnah’s comrades in the quest for Pakistan. Thus, a secularist conception of the state was envisioned by the country’s founding forefathers.
But for reasons which I will not expand upon here, the secular democracy was destroyed in Pakistan. In relation to the present case it is sufficient to remember that, fanning the flames of hatred in order to drum up support for the Afghan Jihad, America’s crony General Zia amended the criminal law by introducing harsh criminal penalties against Ahmadis (see previous post) for publicly manifesting their faith as “Muslims”. Against this gory background, the Court of Justice of the European Union (“CJEU”) has ruled that certain forms of serious interference with the public manifestation of religion may constitute persecution for reasons of religion and that where that persecution is sufficiently serious, refugee status must be granted. The ruling is inherently similar to domestic UK judgments under which people should not have to suppress their sexual preferences (or act as if their sexuality does not exist) or lie about their political beliefs (or lack of them) to avoid persecution.
Y and Z were Pakistani nationals living live in Germany where they sought asylum and protection as refugees because of their membership of the Ahmadi community. They claimed that they were forced to leave Pakistan on account of their religion. Y claimed that he was repeatedly beaten by band of individuals in his village. The same people also pelted him with stones in the local Ahmadi mosque. Similarly, threats were made that he would be killed and he was reported to the police for insulting the Prophet Mohammed (Peace Be Upon Him). Likewise, Z claimed that he was mistreated and imprisoned because of being an Ahmadi.
Y and Z’s asylum claims were not accepted by the German Bundesamt für Migration und Flüchtlinge (Federal Office for Migration and Refugees, “the government/authorities”) which took the view that the prohibitions on Ahmadis’ public religious practice set out in the Pakistan Penal Code 1860 (as amended) did not amount to persecution for asylum to be granted. Under section 298C, Ahmadis may face up to three years’ imprisonment or a fine if they claim to be Muslim, describe Ahmadi’ism as Islam and preach or propagate or invite others to accept their doctrines. Equally, under section 295C, anyone found guilty of defiling Prophet Mohammed’s name may be punished by death or life imprisonment and a fine.
Upon appeal, the Verwaltungsgericht (Administrative Court) – in Leipzig and Dresden respectively – allowed Y’s appeal and dismissed Z’s. Subsequently, the Sächsisches Oberverwaltungsgericht (Higher Administrative Court of the Land Sachsen) dismissed the government’s appeal in Y’s case and varied the first instance judgment against Z to reflect that his deportation violated the national law (Aufenthaltsgesetz). The reasoning was that rather than individual persecution, active Ahmadis were at the risk of collective persecution within the meaning of the Aufenthaltsgesetz. The Sächsisches Oberverwaltungsgericht noted that devout Ahmadis considered the public manifestation and expression of their faith as an essential ingredient of their religion which preserved their public identity: unable to practise Ahmadi’ism in Pakistan freely (as opposed to Germany), Y and Z’s religious freedom would be compromised.
Aggrieved, the government appealed to the Bundesverwaltungsgericht (Federal Administrative Court): it argued that the scope of Articles 9 and 10(1)(b) of Directive 2004/83/EC (“the [qualification] directive”) had been interpreted too generously because German case law before the transposition of the directive provided the right of asylum in cases only where the “core areas” of religious freedom were interfered with. So restrictions on the public practice of a faith were outside the “core areas”. Moreover, there was a gap in the lower court’s judgment about how Y and Z worship in Germany to establish that they cannot refrain from certain activities that are not part of the “core areas”.
For the Bundesverwaltungsgericht, the referring court, the issue in Y and Z’s cases was wedded to which specific forms of interference with religious freedom, for the purpose of article 9 ECHR (freedom of thought, conscience and religion), may confer recognition of refugee status within the meaning of Article 2(d) (definitions: “refugee status” means the recognition by a Member State of a third country national or a stateless person as a refugee) of the directive. The referring court was unsure whether types of interference with religious freedom apart from those affecting the vital elements of the concerned person’s religious identity may justify a presumption of persecution that is relevant in granting refugee status. Thus, staying the proceedings in Y and Z’s case, the Bundesverwaltungsgericht referred the following questions to the CJEU:
1. Is Article 9(1)(a) of the directive … to be interpreted as meaning that not every interference with religious freedom which infringes Article 9 of the ECHR constitutes an act of persecution within the meaning of [the former provision], and that a severe violation of religious freedom as a basic human right arises only if the core area of that religious freedom is adversely affected?
2. If Question 1 is to be answered in the affirmative:
(a) Is the core area of religious freedom limited to the profession and practice of faith in the areas of the home and neighbourhood, or can there be an act of persecution, within the meaning of article 9(1)(a) of the directive …, also in cases where, in the country of origin, the observance of faith in public gives rise to a risk to life, physical integrity or freedom and the applicant accordingly abstains from such practice?
(b) If the core area of religious freedom can also comprise the public observance of certain religious practices:
- Does it suffice in that case, in order for there to be a severe violation of religious freedom, that the applicant feels that such observance of his faith is indispensable in order for him to preserve his religious identity?
- Or is it further necessary that the religious community to which the applicant belongs should regard that religious observance as constituting a central part of its doctrine?
- Or can further restrictions arise as a result of other circumstances, such as the general conditions in the country of origin?
3. If Question 1 is to be answered in the affirmative:
- Is there a well-founded fear of persecution, within the meaning of article 2(c) of the directive …, if it is established that the applicant will carry out certain religious practices – other than those falling within the core area – after returning to the country of origin, even though they will give rise to a risk to his life, physical integrity or freedom, or can the applicant reasonably be expected to abstain from such practices?
The CJEU (Grand Chamber)
Observing that the Refugee Convention underpinned the legal framework for protecting refugees, the Court  noted that the directive guided Member States’ authorities “in the application of that convention on the basis of common concepts and criteria”: Salahadin Abdulla (Area of Freedom, Security and Justice)  EUECJ C-175/08, Bolbol (Area of Freedom, Security & Justice)  EUECJ C-31/09. And  under recital 10 of the directive it must be interpreted consistently with the Charter of Fundamental Rights of the European Union (“CFR”): Salahadin Abdulla, ; Bolbol, ; NS (European Union law)  EUECJ C-411/10, .
Questions 1 and 2
For the CJEU, the first two questions referred inquired whether (i) article 9(1)(a) of the directive is to be construed to mean that any interference with infringing article 10(1) – the right to religious freedom – of the CFR constitutes an “act of persecution” within the meaning of that provision of the directive; and (ii) whether a distinction must be made between the “core areas” of religious freedom and its public expression.
Moreover, under article 2(c) of the directive, “refugee” means a third country national who has a well-founded fear of persecution in his country for a Refugee Convention reason – religion being one out of five – is unwilling to avail the protection of that state due to the circumstances, and behaviour of actors of persecution, there.
The Court’s reasoning ( – ) is set out below:
Article 10(1) of the CFR corresponds with the right guaranteed by article 9 ECHR but article 13 and article 9 of the directive requires refugee status to be granted where there are “sufficiently serious” or “severe” acts of persecution or (through repetition) “sufficiently severe” violations “of basic human rights: especially the absolute rights where no derogation under article 15(2) ECHR was allowed  – .
Under article 9(3) of the directive there must be a connection between the reasons for persecution and the acts of persecution . Whilst freedom religion was important in a democratic society, the fact remained that the directive required a “serve violation” for acts to count as persecution .
Article 10(1) CFR read with article 52 CFR (scope of guaranteed rights) allowed, subject to proportionality, limitations so long as the essence of the rights and freedoms was respected . Likewise, acts infringing freedom of religion which are not grave enough to mandate derogation under article 15 ECHR could not be regarded as persecution under the directive or the Refugee Convention .
Whether an act was capable of constituting persecution under article 9(1)(a) of the directive was not a function of distinguishing between acts that interfere with the core areas of religious freedom (excluding public activities) in comparison to acts that do not affect the core areas . But the distinction was at odds with wide definition of religion in article 10(1)(b) of the directive. Equally, severe violations under article 9(1)(a), were not limited to the practice of a faith in private circles but also included individuals’ freedoms to live their faith publicly . Therefore, the public or private, or collective or individual, nature of the manifestation and practice of the religion did not determine whether a violation of the right to freedom of religion amounted to persecution. Rather, the severity of the measures and sanctions adopted or liable to be adopted against the person concerned decided the question.
Such an approach ensures that article 9(1) is applied in way which enables authorities to assess all types of acts which interfere with religious freedom to conclude whether, by their nature or repetition, the said acts are sufficiently severe to constitute persecution. The question whether a violation of freedom of thought conscience and religion, guaranteed under article 10(1) CFR, constituted persecution within the meaning of article 9(1) of the directive was determined by the severity of the penalty for the individual concerned . Hence, a violation may be persecution where the asylum seeker/the person concerned (in their home country) faces “a genuine risk” of prosecution or inhuman or degrading treatment or punishment by state (or non-state actors of persecution or serious harm) under article 6 of the directive . Under article 4(3) of the directive all the acts which an asylum seeker had suffered or risked being exposed to needed to be assessed in determining whether, given the applicant’s personal circumstances, the acts in question amounted to persecution within the meaning in article 9(1) . The Court said that where the participation in formal worship, either alone or in community with others, may give rise to a genuine risk of prosecution or being subjected to inhuman and degrading treatment, the violation of the right to freedom of religion may be sufficiently serious .
The Court held that in the risk assessment Member States’ authorities must consider both objective and subjective factors. The subjective circumstances that the public observance of a certain religious practice of particular importance to the person concerned – that preserves his/her religious identity – was a relevant factor in ascertaining the level of potential risk in the country of origin: this was also the case even if observing the said religious practice did not form a core element of the concerned person’s faith . Under article 10(1)(b) of the directive both personal and communal conduct which the asylum seeker thought vital/necessary in their lives, “namely those ‘based on … any religious belief’ – and to those prescribed by religious doctrine – namely those ‘mandated by any religious belief’” .
In sum, the Court’s gave its answer in the following terms:
Articles 9(1)(a) of Council Directive 2004/83/EC of 29 April 2004 on minimum standards for the qualification and status of third country nationals or Stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted must be interpreted as meaning that:
- not all interference with the right to freedom of religion which infringes Article 10(1) of the Charter of Fundamental Rights of the European Union is capable of constituting an “act of persecution” within the meaning of that provision of the directive;
- there may be an act of persecution as a result of interference with the external manifestation of that freedom, and
- for the purpose of determining whether interference with the right to freedom of religion which infringes Article 10(1) of the Charter of Fundamental Rights of the European Union may constitute an “act of persecution”, the competent authorities must ascertain, in the light of the personal circumstances of the person concerned, whether that person, as a result of exercising that freedom in his country of origin, runs a genuine risk of, inter alia, being prosecuted or subject to inhuman or degrading treatment or punishment by one of the actors referred to in Article 6 of Directive 2004/83.
Citing Salahadin Abdulla and Others at , the Court explained that the evaluation of the extent of the risk must always “be carried out with vigilance and care” . Moreover, the evaluation should be based purely on a specific assessment of the facts and circumstances: especially within the meaning of article 4 of the directive. The Court  thought that to expect a person to avoid the risk by refraining from engaging in a certain religious practice was irrelevant in principle. Accordingly, the CJEU ruled:
Article 2(c) of Directive 2004/83 must be interpreted as meaning that the applicant’s fear of being persecuted is well founded if, in the light of the applicant’s 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. In assessing an application for refugee status on an individual basis, those authorities cannot reasonably expect the applicant to abstain from those religious practices.