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Interesting Court of Justice case on religious belief asylum claims


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Just flagging this up for those interested in asylum claims based on religious belief: C‑56/17 Fathi v Bulgaria. It is from late 2018 but the English language version was only recently published. The applicant was an Iranian who had converted to Christianity whilst still in Iran, or at least claimed to have done so.

The references to the Directive in the judgment are to the recast Qualification Directive. The UK has not opted into the recast version, but the relevant bits of text are, I think, the same as the 2004 version to which the UK is signed up, so the case is relevant.

There are three points I picked out as interesting as I read through. Do read the whole of the relevant sections, though, as these paragraphs in isolation do not tell the whole story. I’m ignoring the stuff at the start of the judgment on Dublin III, which was procedural in nature.

[ebook 17797]

Firstly, there is some guidance on what the asylum authorities might want to consider when evaluating an asylum claim based on belief:

88 …in the context of applications for international protection based on a fear of persecution on grounds of religion, account must be taken, in addition to the individual position and personal circumstances of the applicant, of, inter alia, his religious beliefs and how he developed such beliefs, how he understands and lives his faith or atheism, its connection with the doctrinal, ritual or prescriptive aspects of the religion to which he states he is affiliated or from which he intends to distance himself, his possible role in the transmission of his faith or even a combination of religious factors and factors regarding identity, ethnicity or gender.

Secondly, it is not an unlawful violation of privacy for an applicant for asylum to be questioned about his or her beliefs.

Thirdly, the fact the death penalty or imprisonment because of religious beliefs exist in a given country as sanctions and are sometimes used in practice itself amounts to persecution:

96 In the present case, it must be considered that the fact that legislation, such as the law on apostasy at issue in the main proceedings, imposes the death penalty or a custodial sentence, is capable, in itself, of constituting an ‘act of persecution’, within the meaning of Article 9(1) of Directive 2011/95, provided that such penalties are actually applied in the country of origin which adopted such legislation (see, by analogy, judgment of 7 November 2013, X and Others, C‑199/12 to C‑201/12, EU:C:2013:720, paragraph 56).

We’ll update our main blog post on religious claims for asylum with this new material.

Interested in refugee law? You might like Colin's book, imaginatively called "Refugee Law" and published by Bristol University Press.

Communicating important legal concepts in an approachable way, this is an essential guide for students, lawyers and non-specialists alike.

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Colin Yeo

Immigration and asylum barrister, blogger, writer and consultant at Garden Court Chambers in London and founder of the Free Movement immigration law website.