The ECtHR has held, unanimously, that the removal from Switzerland to Afghanistan of an Afghan Muslim of Hazara ethnicity who had converted to Christianity would violate his rights under Article 3 ECHR (inhuman or degrading treatment or punishment).

Background

In AA v Switzerland [2019] ECHR (No 32218/17) [in French], the applicant had applied for asylum in Switzerland in 2014. His claim was that he had left Afghanistan because of the lack of security there and that after arriving in Swizterland he had converted from Islam to Christianity. The State Secretariat for Migration (SEM) rejected his application and the Federal Administrative Court confirmed the SEM’s decision on the credibility of his grounds for claiming asylum grounds – but the court also found that his religious conversion in Switzerland had been genuine. The Federal Administrative Court had taken the view that he would not be exposed to serious harm in Afghanistan as a result of his conversion and had ordered his removal to that country. Further, it had held that, while he could not be returned to his region of origin (Ghazni province), he would be safe in Kabul, where his uncles and cousins lived, and his conversion to Christianity was not a decisive factor because it was not known to his relatives in Kabul.

The arguments

The applicant argued that if he was sent back to Afghanistan he would be at risk of inhuman and degrading treatment because of his proselytism and conversion to Christianity. He did not have contact with his uncles and cousins ​​in Kabul and his conversion would make him a traitor in the eyes of the Afghan authorities [31].

The Swiss Government pointed out that he had not produced any new evidence or adduced any evidence of procedural flaws at the national level which could justify a different assessment of the facts by the ECHR [32]. Further, the Federal Administrative Court had found that there was no collective persecution of Christians in Afghanistan and that the Afghan authorities had expressed reservations about the prosecution of acts of apostasy [34].

ADF International, as interveners, argued that converts in Afghanistan could not avail themselves of the freedom of belief guaranteed by international law: legally, conversion from Islam to Christianity would be contrary to national law and the person concerned would be liable to criminal prosecution and even to the death penalty. Christians in Afghanistan were forced to live in hiding, with no place of worship to practise their faith [38].

The judgment

The Court recalled that states parties had the right, under a well-established principle of international law and without prejudice to their treaty obligations – including under the Convention – to control the entry, stay and the removal of non-nationals. However, the expulsion of an alien by a state party might raise a problem under Article 3. [39]. In order to establish whether or not there were substantial grounds for believing that someone faced a real risk of persecution, the Court had to examine the situation in the country of destination in terms of the requirements of Article 3 – and that depended on all the facts of the case [40].

There was no need to call into question its assessment that the general situation of violence in Afghanistan was not, of itself, so serious as to prevent any return to that country [46]: the issue was whether the applicant’s personal situation was such that his return to Afghanistan would be contrary to Article 3 [47].

The Federal Administrative Court, unlike the SEM, had not questioned the authenticity of the applicant’s conversion. The Court saw no reason to depart from that assessment. It also agreed with the domestic authorities’ findings with regard to the events in Afghanistan, insofar as they were not convinced by his argument that he had already converted before his escape and was wanted because of his proselytism [48]. Information on the situation in Afghanistan indicated that Afghans who had converted to or were suspected of Christianity were exposed to a risk of persecution from various groups. These persecutions could also take a state form and lead to a death sentence [50]. In accordance with the UNHCR guidelines on international protection for asylum-seekers based on religion, the authority concerned had to assess – case by case – whether an alien had established that his or her on-site conversion was genuine, which involved an appreciation of the circumstances in which the conversion took place and whether an applicant could be expected to live in his or her new faith on return to the country of origin [51].

The Government stated had that the Swiss authorities had carried out a risk assessment in accordance with the UNHCR guidelines. However, the Federal Administrative Court, as the only judicial body to have examined the case, had not examined the applicant’s way of manifesting his Christian faith in Switzerland or how he intended to continue manifesting it in Afghanistan if the expulsion decision was implemented [52]:

“In the view of the Court, this argument, which appears at the least contradictory, does not result from a rigorous and thorough examination of the circumstances of the particular case” [De l’opinion de la Cour, cette argumentation, qui apparaît pour le moins contradictoire, ne relève pas d’un examen rigoureux et approfondi des circonstances du cas particulier] [53].

There was nothing in the file to indicate that the applicant was questioned about how he had lived his faith in Switzerland since his baptism and could continue to live in Afghanistan, particularly in Kabul, where he never lived before – and the Federal Administrative Court should have investigated the case on those points [54]. Its conclusion that his return to Kabul would not be problematic because he had shared his beliefs only with his most intimate relatives implied that, if forced to return, he would have to confine his new faith to the strictly private domain:

“It is clear … that an apostate is not free to openly express his beliefs in Afghanistan. The person concerned would be forced to live in a lie and could be forced to give up all contact with other people of his confession for fear of being discovered” [Il ressort clairement … qu’un apostat n’est pas libre d’exprimer ouvertement ses croyances en Afghanistan. L’intéressé serait contraint de vivre dans le mensonge et pourrait se voir forcé de renoncer à tout contact avec d’autres personnes de sa confession par crainte d’être découvert]. [55].

Finally,  the Federal Administrative Court’s assessment seemed not to be supported by international reports on the situation in Afghanistan of people converted to Christianity [57].

The Court concluded that the Federal Administrative Court had not engaged in a sufficiently serious examination of the consequences of his conversion [57]; and it followed that there would be a violation of Article 3 ECHR if the applicant were returned to Afghanistan.