Germany - Federal Administrative Court, 20 February 2013, 10 C 23.12

Country of Decision:
Country of Applicant:
Date of Decision:
20-02-2013
Citation:
10 C 23.12
Court Name:
Federal Administrative Court
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Headnote: 

The concept of a serious violation of religious freedom according to Article 9(1)(a) of the Qualification Directive (2004/83/EC) does not simply refer to a serious encroachment on the freedom to practice one’s faith in private but also the freedom to practice religion in a public context.

The enforced renunciation of religious activities can constitute persecution. Since persecution may lie in the prohibition itself, the actual future behaviour of the asylum-seeker and associated involvement in the other legal interests of the party concerned (e.g. life and freedom) are not relevant.

Facts: 

The Applicant, who was born in 1979, belongs to the Ahmadiyya religious community. He travelled to Germany in 2000 and applied for asylum. The application was declined on the grounds that the claims put forward were not credible. In addition, there is no evidence of mass persecution of Ahmadis in Pakistan.

Following several unsuccessful subsequent applications, the Applicant presented a further asylum application in 2008 and stated that the legal situation had changed in his favour thanks to the enforcement of the Qualification Directive (2004/83/EC). The authorities refused to implement further proceedings. However, the Administrative Court accepted the Applicant’s request and obliged the authorities to grant him refugee status. The Administrative Court of Baden-Württemberg confirmed the decision of the Administrative Court in December 2011. It was of the opinion that the implementation of Directive 2004/83/EC in Germany had brought about a significant change to the legal situation. The result was that not all Ahmadis in Pakistan were exposed to mass persecution. It was the Applicant’s personal desire, however, to practice his faith in public. He would therefore probably be at risk of religious persecution.

The authorities appealed to the Federal Administrative Court for review. In May 2012, the Federal Administrative Court stayed the proceedings and presented the Court of Justice of the European Union with a number of questions on the interpretation of Article 9(1)(a) and Article 2(c) of the Qualification Directive (2004/83/EC). The CJEU responded with its decision on 5 September 2012.

Decision & Reasoning: 

In its decision of 5 September 2012 (C-71/11 and C-99/11), the CJEU determined under which circumstances encroachment on religious freedom can be considered as acts of persecution according to Article 9(1)(a) of the Qualification Directive (2004/83/EC). An encroachment on the right to religious freedom may be so serious, according to the Directive, that it can be likened to the acts set forth in Article 15(2) of the European Convention on Human Rights. Article 9(1)(a) of the Qualification Directive (2004/83/EC) refers to these acts as an indication of what actions can be considered as persecution.

Acts which, according to the CJEU, may constitute a serious violation of religious freedom in this sense do not only include a serious encroachment on the Applicant’s freedom to practice his faith in private, but also acts which restrict his freedom to express his faith in a public context. According to the CJEU, the definition of the concept of religion in Article 10(1)(b) of the Qualification Directive is not consistent when acts of persecution are evaluated differently depending on whether they relate to an area of private religious activity (forum internum) or a broader area of public religious expression (forum externum). The Federal Administrative Court upholds this interpretation and therefore no longer adheres to its legal opinion expressed prior to the enforcement of the Qualification Directive (2004/83/EC). Therefore, in the determination of acts which may constitute persecution, the question as to whether a specific area of religious expression is involved is not a decisive factor. The significant aspect is the nature of the repression applied and its effects on the Applicant.

The right to religious freedom may be violated when the Applicant is actually at risk, because of the exercising of this freedom, of being criminally prosecuted or being subjected to inhuman or degrading treatment. The Applicant must not exercise his faith in a manner which could expose him to the risk of persecution upon returning to his country of origin. The enforced renunciation of religious activity due to the risk of persecution may in itself constitute persecution. If persecution may lie in the prohibition itself, the actual future behaviour of the Applicant is ultimately not relevant. This corresponds to the understanding of the British Upper Tribunal in its leading decision of 14 November 2012 (MN and others) and the decision of the Supreme Court of the United Kingdom relating to the persecution of homosexuality dated 7 July 2010 (HJ).

According to the CJEU, the observance of a certain religious practice must be particularly important for the preservation of the religious identity of the Applicant. According to the understanding of the Senate, this does not imply that the Applicant would “break down” or suffer serious psychological damage if he were forced to refrain from expressing his faith. However, the actual practising of his faith must constitute a central element of the Applicant’s religious identity. A close link with faith is not sufficient if the religion is not expressed in a manner which would expose the Applicant to the risk of persecution on returning to his country of origin. 

The Applicant must be able to convince the Court that he considers the practising of his faith to be essential in order to preserve his religious identity. Religious identity is an “internal reality” which can only be established on the basis of the Applicant's assertions and the fact that conclusions about internal attitudes can be drawn from external indications. 

Outcome: 

The case was referred back to the Administrative Court, which was required to reach a new decision on the basis of the principles set down by the Federal Administrative Court.

Subsequent Proceedings : 

The High Administrative Court of Baden-Württemberg (A 11 S 757/13; asyl.net, M20906) once again confirmed the decision of the Administrative Court in its decision of 12.06.2013 and again rejected the appeal by the authorities.

Observations/Comments: 

asyl.net M20535

(Unofficial) English translation available at: http://www.bverwg.de/informationen/english/decisions/10_c_23_12.php

Case Law Cited: 

UK - Upper Tribunal, 13 November 2012, MN and others (Ahmadis - country requirements - risk) Pakistan CG, [2012] UKUT 00389 (IAC)

Germany - Federal Administrative Court, 20 January 2004, 1 C 9.03