Friday 18. September 2020
#150 - june 2012


Religious persecution: a serious ground for granting asylum


When the public expression of religion entails serious risk to life, integrity or freedom of a person, the victim is entitled to obtain asylum in the EU, the ECJ Advocate General proposes.


Religious freedom is much more than the protection of conscience and private manifestation: it also entails the liberty to demonstrate one’s religion in the public sphere. There is nothing in the case law of either the Luxembourg or the Strasbourg Courts to support the proposition that the ‘core area’ of freedom of religion excludes the public manifestation of religion, as expressed by Advocate General Bot in his Opinion dated 19 April 2012. The case elucidates the qualification as refugees under Directive 2004/83/EC (“Qualification Directive”) of two active individual members of the Ahmadiyya community, which is an Islamic reformist movement contested by the Sunni Muslim majority in Pakistan, and whose public religious activities -considered as blasphemous- are severely restricted by the Pakistan Penal Code. Following the 1951 Geneva Convention, the Qualification Directive considers as a refugee a third-country national who, owing to a well founded fear of being persecuted for, among other reasons, his religion, is outside the country of nationality and is unable or, owing to such fear, is unwilling to avail himself or herself of the protection of that country.


The Qualification Directive considers that “acts of persecution” are either those which are sufficiently serious by their nature or repetition as to constitute a severe violation of basic human rights, or an accumulation of various measures, including violations of human rights which are sufficiently severe as to affect an individual in a similar manner. The question arises as to whether asylum should refer to acts that infringe only the ‘core area’ of freedom of religion or man’s ‘minimum religious essence’ (that is to say, the right of every person to have the religion of his choice or to have none and the right to manifest one’s faith in private or amongst those who share it), or they might also include the public manifestation of faith.


To give national authorities the power to define the essence of a religion is, according to Advocate General Bot, subject to the risk of arbitrariness, because – as stated by the European Court of Human Rights - it is not possible to discern throughout Europe a uniform conception of the significance of religion in society. Moreover, the specific importance of each of these acts will vary according to the precepts of the religion concerned and, within the same community, according to the personality of the individual.


Religious freedom is not just the freedom of worship, nor can it be reduced to an internal act of conscience or limited to its expression within the close circle of those whose faith one shares. The full integrity of the right to religious freedom includes five dimensions that should be, all of them, not only respected but also promoted: the freedom to practice religion in private or public, individually or collectively, and, in addition, the public recognition of its institutional dimension. As Bot rightly affirms, “a severe violation of freedom of religion, regardless of which component of that freedom is targeted by the violation, is likely to amount to an ‘act of persecution’ where the asylum-seeker, by exercising that freedom or infringing the restrictions placed on the exercise of that freedom in his country of origin, runs a real risk of being executed or subjected to torture, or inhuman or degrading treatment, of being reduced to slavery or servitude, or of being prosecuted or imprisoned arbitrarily.” Persecution is characterised not by the fact that it occurs in the sphere of freedom of religion, but by the nature of the repression inflicted on the individual and its consequences. For that reason, an asylum seeker’s well-founded fear of religious persecution in his country of origin might be considered, under the Qualification Directive, as ground for granting him international protection, no matter the dimension of religious freedom involved. Any EU Member State’s authority cannot reasonably expect the asylum seeker to renounce the public expression of his faith in his country of origin. Accordingly, any citizen in the EU should be able to expect full respect for his religious freedom - including its public and institutional dimensions - in all EU Member States.


José Luis Bazán


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