In the case of Eweida v UK [2013] ECHR 37 the European Court of Human Rights famously dismissed three out of four religious discrimination applications while managing to appear sympathetic to the cause of religious freedom. The case concerned the right to manifest one’s religious views at work. The only claimant to succeed was Ms Eweida, the British Airways staff member who had been prohibited from wearing a small, simple religious symbol in the course of her employment.

My interest is whether Eweida has any wider significance in what might be described as behavioural persecution protection claims, one of the most interesting areas of refugee law development in Europe at the moment.

To begin with, the judgment reinforces the importance of manifestations of religious belief including the importance of communal worship:

“…freedom of religion also encompasses the freedom to manifest one’s belief, alone and in private but also to practice in community with others and in public. The manifestation of religious belief may take the form of worship, teaching, practice and observance. Bearing witness in words and deeds is bound up with the existence of religious convictions…” [para 80]

In Iran communal worship by converted Christians (as opposed to the ethnic Christian community) is either difficult or impossible. Is it therefore persecutory and/or a breach of Article 9 for a person to be returned to a country where he or she will be prohibited from a key aspect of religious adherence? Arguably, yes.

Further, the Court suggests that a State should be wary of making judgments about what another person considers that their faith requires:

“The right to freedom of thought, conscience and religion denotes views that attain a certain level of cogency, seriousness, cohesion and importance … Provided this is satisfied, the State’s duty of neutrality and impartiality is incompatible with any power on the State’s part to assess the legitimacy of religious beliefs or the ways in which those beliefs are expressed” [para 81]

The same might be said of UK Border Agency officials and immigration judges. The Court returns to this point in the next paragraph of the judgment, again warning that an external observer must be cautious before making judgments about what another person’s faith requires:

“In order to count as a “manifestation” within the meaning of Article 9, the act in question must be intimately linked to the religion or belief. An example would be an act of worship or devotion which forms part of the practice of a religion or belief in a generally recognised form. However, the manifestation of religion or belief is not limited to such acts; the existence of a sufficiently close and direct nexus between the act and the underlying belief must be determined on the facts of each case. In particular, there is no requirement on the applicant to establish that he or she acted in fulfilment of a duty mandated by the religion in question…”

This is surely all the more so with regard to people from very different cultural and educational backgrounds. For example, in Western Europe many churches or faiths emphasise the importance of textual study as an aspect of faith and its expression. Even for the same religion, or even the same branch of religion, that is less likely to be so in other countries. Christianity, for example, has been very adaptable over the years in the way that the message has been preached to different groups. Missionaries and evangelists responsible for converting people with little education probably do not emphasise the textual aspects of the faith, preferring to concentrate on emotion and feeling.

Lastly for my purposes here, there is a further valuable lesson, and it comes from an interesting source:

The belief must also be coherent in the sense of being intelligible and capable of being understood. But, again, too much should not be demanded in this regard. Typically, religion involves belief in the supernatural. It is not always susceptible to lucid exposition or, still less, rational justification. The language used is often the language of allegory, symbol and metaphor. Depending on the subject matter, individuals cannot always be expected to express themselves with cogency or precision. Nor are an individual’s beliefs fixed and static. The beliefs of every individual are prone to change over his lifetime.

This quote comes from paragraph 45 of the Court’s judgment, but the Court is in fact itself quoting from Lord Nicholls of Birkenhead giving the majority judgment in R (Williamson and Others) v. Secretary of State for Education and Employment [2005] UKHL 15. It is good to see European judges bringing rights home, as Lord Lester would say, in these politically charged times.

The passage is a useful reminder that trying to assess the religious beliefs or faith or religious identity of another person is an extremely difficult, if not impossible, task. This is a problem in asylum cases because a case may turn on whether a conversion to another religion is genuine and whether a person’s religious identity will be compromised in important ways in the country of origin. Faith is axiomatically a matter of feeling and emotion. The UK Border Agency’s preferred ‘Trivial Pursuit’ style of Wikipedia-based religious questions is no way to evaluate another person’s faith.

The passage above from Lord Nicholl’s judgment in Williamson finds an echo in the judgment of Lord Rodger in the HJ (Iran) v Secretary of State for the Home Department [2010] UKSC 31 case:

“To illustrate the point with trivial stereotypical examples from British society: just as male heterosexuals are free to enjoy themselves playing rugby, drinking beer and talking about girls with their mates, so male homosexuals are to be free to enjoy themselves going to Kylie concerts, drinking exotically coloured cocktails and talking about boys with their straight female mates.” [para 78]

Lord Rodger’s real point is that we should not presume to know the inner life or inner identity of another. He goes on:

“Where would the tribunal find the yardstick to measure the level of suffering which a gay man – far less, the particular applicant – would find reasonably tolerable? How would the tribunal measure the equivalent level for a straight man asked to suppress his sexual identity indefinitely?” [para 80]

The same point is made by Lord Dyson in RT (Zimbabwe) v Secretary of State for the Home Department [2012] UKSC 38 at paragraph 46 before he goes on to conclude:

“What matters for present purposes is that nothing that was said in the Authority’s decision or by us in HJ (Iran) supports the idea that it is relevant to determine how important the right is to the individual. There is no scope for the application of the core/marginal distinction (as explained above) in any of the appeals which are before this court.” [para 51]

How on earth, then, should UK Border Agency staff and immigration judges assess the faith of another person? Or their political opinions, or their sexuality? This unenviable task is required by our asylum system.

The answer is surely provided by HHJ Gilbart QC in the case of R (on the application of SA (Iran)) v Secretary of State for the Home Department [2012] EWHC 2575 (Admin):

It is a dangerous thing for anyone, and perhaps especially a judge, to peer into what some call a man or woman’s soul to assess whether a professed faith is genuinely held, and especially not when it was and is agreed that she was and is a frequent participant in church services. It is a type of judicial exercise very popular some centuries ago in some fora, but rather rarely exercised today. I am also uneasy when a judge, even with the knowledge one gains judicially in a city as diverse as Manchester, is bold enough to seek to reach firm conclusions about a professed conversion, made by a woman raised in another culture, from the version of Islam practised therein, to an evangelical church in Bolton within one strand of Christianity. I am at a loss to understand how that is to be tested by anything other than considering whether she is an active participant in the new church.

The reference to ‘other fora’ I take as one to the Inquisition, when similar doctrinal questions would be used to determine adherence to or deviance from ‘true’ religious doctrines. It seems to be a human trait that many of is like to delve into the lives of others where we get a chance, gossiping and judging friends and family, colleagues and celebrities. The current state of refugee law on future behaviour is widely interpreted as requiring a rather distasteful judgment about whether a person’s sexuality, political opinion (or lack of it) or faith is genuine or affected. This can have a terrible impact on those on whom judgment is passed: it is hard enough being gay and from a country where that is considered anathema without also being rejected by the UK Border Agency and feeling compelled to submit pornographic home movies as evidence. Eweida is a useful reminder that decision makers should not rush to judgment on another person’s inner identity.