The Court of Justice of the European Union handed down judgment in the case of Germany v Y and Z [2012] EUECJ C-71/11 on 5 September 2012. This is one of the first Court of Justice cases to consider the definition of a refugee and the terms of Directive 2004/83/EC, commonly referred to in legal circles as the Qualification Directive. It is a critically important case on the hot topic of religious persecution.

The two appellants in the case were Ahmadi Muslims from Pakistan. Ahmadis are prevented by law in Pakistan from calling themselves Muslim, calling their places of worship mosques and from discussing their faith in public. They must deny that they are Muslim in order to exercise basic civil rights such as voting and obtaining a passport. Ahmadis were recently singled out by UNHCR and the US Department of State as a particularly vulnerable and discriminated against religious minority.

The Court rejects the notion of core and peripheral aspects of religion, dismissing the argument that only an interference with a core right might constitute persecution:

63. Such a distinction is incompatible with the broad definition of ‘religion’ given by Article 10(1)(b) of the Directive, which encompasses all its constituent components, be they public or private, collective or individual. Acts which may constitute a ‘severe violation’ within the meaning of Article 9(1)(a) of the Directive include serious acts which interfere with the applicant’s freedom not only to practice his faith in private circles but also to live that faith publicly.

This approach is already now followed in the UK following the HJ (Iran) and RT (Zimbabwe) cases in the Supreme Court, so it good to see our European neighbours keeping up.

The Court goes on to find that the determining factor as to whether an interference with religious freedom will constitute persecution is ‘the severity of the measures and sanctions adopted or liable to be adopted against the person concerned’ (para 66). Where a person who exercises their freedom of religion runs a genuine risk of being prosecuted or being subjected to inhuman or degrading treatment or punishment then that is likely to constitute persecution (para 67). Specifically, the prohibition of participation in worship in public either alone or in community with others may constitute persecution where there is a genuine risk of prosecution or being subjected to inhuman or degrading treatment or punishment (para 69).

The Court then concludes this part of the judgment by holding that desire to preserve one’s religious identity even where the prohibited religious practice is not a core element of the religion, is a relevant risk factor:

70. In assessing such a risk, the competent authorities must take account of a number of factors, both objective and subjective. The subjective circumstance that the observance of a certain religious practice in public, which is subject to the restrictions at issue, is of particular importance to the person concerned in order to preserve his religious identity is a relevant factor to be taken into account in determining the level of risk to which the applicant will be exposed in his country of origin on account of his religion, even if the observance of such a religious practice does not constitute a core element of faith for the religious community concerned.

The judgment then concludes with a resounding rejection of the argument that a person can be expected to be discreet in order to avoid persecution:

79. It follows that, 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.

Again, this is already the approach followed in the UK, happily. Explicitly, the Court holds that this approach must be applied in cases where the person has not previously been subjected to persecution or direct threats of persecution on account of his religion and the asylum claim is based on an assertion that the person has previously and will need to continue to avoid the real risk of persecution by abstaining from the risky behaviour (para 74-75).

The case is good news for Ahmadi and other religious minority asylum seekers across Europe. Given that Pakistani law explicitly prohibits all sorts of aspects of the free exercise of the Ahmadi faith (not just proselytising), the law is followed by almost all Ahmadis under pain of prosecution and there are reported examples of prosecutions and inhuman and degrading treatment or punishment of those known to be Ahmadis, all genuine Ahmadis now ought to be entitled to refugee status.

A Country Guidance case on Ahmadis has been heard and judgment is pending. Shivani Jegarajah and Colin Yeo were amongst Counsel acting in that case so we will bring news of the result as soon as it is known.

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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