Aspects of religious persecution

On the day following the hearing of the UK cases of McFarlane, Ladele , Eweida and Chaplin by the European Court of Human Rights in Strasbourg, (ECtHR), the Court of Justice of the European Union in Luxembourg, (CJEU), delivered its judgement in Bundesrepublik Deutschland v Y & Z  [2012] EUECJ C-71/11. The cases before the ECtHR concerned the complaints of four practising Christians that UK law did not sufficiently protect their rights to freedom of religion and freedom from discrimination at work. The CJEU judgement related to the refusal of the German administrative court to grant asylum to two Pakistani nationals who claimed that if returned to their native country, as Ahmadi Muslims they would be subject to criminal sanctions under the Pakistani Penal Code.

The juxtaposition of these cases invites comparison, and commentators have suggested that, apart from degree of severity of the persecution, the Eweida and Chaplin situations were not fundamentally different from that of religious minorities in Muslim countries, here; and that the CJEU ruling on the manifestation of a person’s religion in public is contrary to the view of the UK Government and courts that religious practice is entirely private, here

Bundesrepublik Deutschland v Y & Z

The UK cases  have been address on this web log here, here, here and hereThey are primarily based upon on Articles 9 (freedom of religion) and 14 (prohibition of discrimination) of the European Convention on Human Rights, and all four applicants complain that domestic law failed adequately to protect their right to manifest their religion.

By contrast, in Bundesrepublik Deutschland v Y & Z the applicants claim that the action by the German authorities was contrary to Council Directive 2004/83/EC 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. In addition, the Court considered the 1951 UN Refugee Convention and the Charter of Fundamental Rights of the European Union (2000/C 364/01), the relevant rights  of which relate back to the European Convention on Human Rights.

The CJEU summarized the questions raised by the Federal Administrative Court [Bundesverwaltungsgericht] as:

  • whether Article 9(1)(a) of the Directive is to be interpreted as meaning that any interference with the right to religious freedom that infringes Article 10(1) of the Charter may constitute an ‘act of persecution’ within the meaning of that provision of the Directive, and whether a distinction must be made between the ‘core areas’ of religious freedom and its external manifestation; and
  • whether Article 2(c) of the Directive 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 relevant parts of the judgement are contained in paragraph 72, in which it is argued that Article 9(1)(a) of the Directive must be interpreted as meaning that:

  • not all interference with the right to freedom of religion which infringes Article 10(1) of the [EU] Charter 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 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 the Directive.

and in paragraph 79:

  •  “… where it is established that, upon his return to his country of origin, the person concerned will follow a religious practice which will expose him to a real risk of persecution, he should be granted refugee status, in accordance with Article 13 of the Directive. The fact that he could avoid that risk by abstaining from certain religious practices is, in principle, irrelevant.”

A fuller analysis of the case is posted on the UK Immigration Law blog.

Comment

Although reference to the European Convention on Human Rights is common to both considerations, the level of read-across from the CJEU judgement is limited.  Whilst the CJEU considered that the difference between public and private manifestation of religion was irrelevant, this was conditional on the exposure to a ‘real risk of persecution’, and in the context of Directive 2004/83/EC, not all interference with the right to freedom of religion constituted an ‘act of persecution’ within the meaning of the relevant provision of the Directive.

Thus ‘the degree of severity of persecution’ is fundamental to the CJEU’s reasoning, not merely a factor distinguishing between the considerations of the two tribunals, and in itself would be difficult to apply to the UK situation. However, in relation to the public/private manifestation debate, the above commentators cited judgements of the Supreme Court: HJ (Iran) v Secretary of State for the Home Department [2010] UKSC 31 ; and RT (Zimbabwe) & Ors v Secretary of State for the Home Department [2012] UKSC 38.

In HJ (Iran), the Supreme Court held that the Asylum and Immigration Tribunal was wrong to reject the appeal by the second appellant, HT on the basis that he could relocate to a different part of Cameroon and (presumably) act discreetly there in relation to his homosexuality. At paragraph 78, Lord Rodger of Earlsferry summarised the issue as follows :

“In short, what is protected is the applicant’s right to live freely and openly as a gay man. That involves a wide spectrum of conduct, going well beyond conduct designed to attract sexual partners and maintain relationships with them … In other words, gay men are to be as free as their straight equivalents in the society concerned to live their lives in the way that is natural to them as gay men, without the fear of persecution.”

The emergence and recognition of the principle established in HJ (Iran) was cited with approval in the Scottish case Opinion of Lord Stewart in the Petition of A H C (AP) for a Judicial Review [2012] CSOH 147.  In considering the risk of Article 3 ECHR violations in relation to the removal to Pakistan of Christian converts who would be considered apostates in the eyes of their former Muslim co-religionists, Lord Stewart stated [Paragraph 46]:

“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.”

In RT, the court held that refusal of refugee status should not be countenanced where it would be necessary for a person to engage in dissimulation about his or her political beliefs in order to avoid persecution by the Mugabe regime – which expects fulsome protestations of loyalty at every turn. Said Lord Dyson at paragraph 42:

“[T]he right not to hold the protected beliefs is a fundamental right which is recognised in international and human rights law and, for the reasons that I have given, the Convention too. There is nothing marginal about it. Nobody should be forced to have or express a political opinion in which he does not believe. He should not be required to dissemble on pain of persecution. Refugee law does not require a person to express false support for an oppressive regime, any more than it requires an agnostic to pretend to be a religious believer in order to avoid persecution. A focus on how important the right not to hold a political or religious belief is to the applicant is wrong in principle”.

Whilst the principle associated with the public manifestation of one’s beliefs is relative straightforward to state, the associated legislation is complex.

In relation to the Church of England, an earlier post reported that in July this year, the General Synod voted by a substantial majority for a motion on the Manifestation of Faith in Public Life:

“That this Synod: (a) express its conviction that it is the calling of Christians to order and govern our lives in accordance with the teaching of Holy Scripture, and to manifest our faith in public life as well as in private, giving expression to our beliefs in the written and spoken word, and in practical acts of service to the local community and to the nation; and b) request the Archbishops’ Council to introduce draft legislation to embody this conviction in the Canons of the Church of England”.

As indicated in the earlier post, the task of the Archbishops’ Council in drafting the new Canon is one thing, the extent to which this is taken into consideration by the civil courts is another.

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