Fahamu Refugee Legal Aid Newsletter

JUDGMENT OF THE COURT (Grand Chamber, France) regarding freedom of religion

5 September 2012

(Directive 2004/83/EC – Minimum standards for determining who qualifies for refugee status or for subsidiary protection status – Article (2)(c) – Classification as a ‘refugee’ – Article 9(1) – Definition of ‘acts of persecution’ – Article 10(1) (b) – Religion as ground for persecution – Connection between the reasons for persecution and the acts of persecution – Pakistani nationals who are members of the Ahmadiyya religious community – Acts by the Pakistani authorities designed to prohibit the manifestation of a person’s religion in public – Acts sufficiently serious for the person concerned to have a well founded fear of being persecuted on account of his religion – Individual assessment of the facts and circumstances – Article 4

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On those grounds, the Court (Grand Chamber) hereby rules:

1. Articles 9(1)(a) of Council Directive 2004/83/EC of 29 April 2004 on minimum standards for the qualification and status of third country nationals or Stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted must be interpreted as meaning that:

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not all interference with the right to freedom of religion which infringes Article 10(1) of the Charter of Fundamental Rights of the European Union is capable of constituting an ‘act of persecution’ within the meaning of that provision of the Directive;

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there may be an act of persecution as a result of interference with the external manifestation of that freedom, and

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for the purpose of determining whether interference with the right to freedom of religion which infringes Article 10(1) of the Charter of Fundamental Rights of the European Union may constitute an ‘act of persecution’, the competent authorities must ascertain, in the light of the personal circumstances of the person concerned, whether that person, as a result of exercising that freedom in his country of origin, runs a genuine risk of, inter alia, being prosecuted or subject to inhuman or degrading treatment or punishment by one of the actors referred to in Article 6 of Directive 2004/83.

2. Article 2(c) of Directive 2004/83 must be interpreted as meaning that the applicant’s fear of being persecuted is well founded if, in the light of the applicant’s personal circumstances, the competent authorities consider that it may reasonably be thought that, upon his return to his country of origin, he will engage in religious practices which will expose him to a real risk of persecution. In assessing an application for refugee status on an individual basis, those authorities cannot reasonably expect the applicant to abstain from those religious practices.

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