The Dutch policy on converted persons from Iran and international asylum law

Hemme BattjesProfessor European asylum law VU

Amsterdamh.battjes@vu.nl

Topics

1) Which infringements on freedom of religion in the country of origin would justify the grant of asylum?

2) Can converted persons be required to keep a low profile (abstain from conversion activities etc)?

3) Must person converted in NL show past problems in Iran?

1.1 Infringements freedom religion and Article 3 ECHR

• Article 3 ECHR: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

-> expulsion to situation where real risk of torture etc prohibited (since 1989 standing case-law)

Article 3 ECHR requires “ minimum level of severity”, whether minimum reached “depends on all circumstances of the case”

1.1 Infringements freedom religion and Article 3 ECHR

- Case-law ECtHR: mostly physical abuse- But e.g. severe discrimination, repeated punishment

of conscientious objector military service might be sufficient

- Impossibility to hold home services, convert others under current case-law in themselves presumably not sufficient

[But (severe) discrimination, cruel punishment for such acts would be violation; see topic 2]

1.2 Infringements freedom religion and Article 9 ECHR

• Prohibition in Europe to hold home services, convert others will (in principle) be violation of Article 9 ECHR

• But ECtHR case Z and T v UK: prohibition expulsion because of infringements freedom religion in country of origin in principle only if also breach of Article 3 ECHR

• Reason: Article 9 ECHR predominantly written for situation within Europe

1.3 Infringements freedom religion and Refugee Convention

• Refugee Convention requires asylum if well-founded fear of “ persecution”

• NB persecution vs prosecution • Certain authors assume that all breaches freedom religion

amount to persecution (Hathaway 1991)• But Article 9 EU Qualification Directive: persecution = Article 3

ECHR or measures same severity • C-99/11: German Court asked European Court of Justice:

“Does every interference with religious freedom which breaches Article 9 ECHR constitute an act of persecution, or is it required that the core area of that religious freedom is adversely affected?”

1.4 Infringements freedom religion: solutions?

• Conclusion: both ECHR and Refugee Convention require minimum “severity”

• Impossibility to convert, home services not sufficient• If one wants NL to offer asylum to Christian Iranians in

such cases:1) National policy (groups under Article 29(1)(c) Aliens Act

[NB Dutch govt announced that it will abolish this provision]

2) Broad interpretation “persecution” (questions ECJ) or Article 3 ECHR- whether minimum level is reached “depends on circumstances”

2.1 Discretion and 3 ECHR

• Vc 2/2.7.1: members minority religion are not expected to keep it secret, but certain discretion (terughoudendheid) required e.g. as regards conversion activities

• Can Christian be required to keep low profile in order to avoid ill-treatment/punishment?

• Article 3 ECHR: requires “real risk” of ill-treatment• Presumably discretion requirement not necessarily at

odds 3 ECHR:If likely that foreigner will abstain from dangerous activities, no risk

2.1 Discretion and 3 ECHR

• Behaviour alternative may amount to ill-treatment as well:– ECtHR: N v Sweden, Afghan woman: fears harassment etc if

returns as single divorced woman = risk ill-treatment– Alternative: submission to husband who has total power, can

rape without being punished etc = risk of ill-treatment too• Iranian Christians:

– Risk of ill-treatment if conversion activities– Behavior alternative = abstention from conversion: breach of 9

ECHR, not 3 ECHR -> hence not in itself sufficient[Unless applicants shows that likely that he will convert despite

dangers – then there is no alternative]

2.2 Discretion and Refugee Convention

• Refugee Convention: asylum if a) well-founded fear of b) persecution c) for reasons of “religion”, political opinion etc

• Can Christian be required to keep low profile in order to avoid persecution?

• No: reason “religion” encompasses conversion activities (cf. Article 10 EU Qualification Directive)

• So who fears penalty (=persecution) because of conversion activities is a refugee

• Compare persons persecuted because of political opinion – minister would (and could) not require silence

2.2 Discretion and Refugee Convention

• NB Dutch courts sometimes apply Convention incorrectly• Question: is an Iranian Christian who wishes to convert and as

a consequence risks being sentenced, a refugee?• Rephrased as “does requirement of discretion imply well-

founded fear persecution?”-> Reasoning: “As persecution does not encompass prohibition on conversion, discretion may be required”

• Wrong : mixes up “persecution” and “persecution ground” • Conclusion: requirement discretion possibly not violation

Article 3 ECHR, but certainly at odds with Refuge Convention• C-99/11: “Is the applicant to be expected to abstain from

engaging in such religious practices (= non-core practices, e.g. conversion)?

3. Sur place claims

• Usually asulum apppplication substantiated with past harassments, threats etc

• Not possible if conversion in NL ( “ refugee sur place”)• Vc C24/12.2.2 (Iran): converted applicant must show “

problems” in Iran on other grounds • Real risk ill-treatment (3 ECHR) and well-founded fear

persecution (Refugee Convention) forward looking: past persecution is reason for assuming fear, not requirement!

• Hence negative attention Iranian authorities may be substantiated also otherwise