The Dutch policy on converted persons and international asylum law by malj

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									  The Dutch policy on converted
persons from Iran and international
           asylum law
             Hemme Battjes
    Professor European asylum law VU
               Amsterdam
             h.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

								
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