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


									  The Dutch policy on converted
persons from Iran and international
           asylum law
             Hemme Battjes
    Professor European asylum law VU
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
-> 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:
• 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
    [NB Dutch govt announced that it will abolish this
2) Broad interpretation “persecution” (questions ECJ) or
    Article 3 ECHR
    - whether minimum level is reached “depends on
       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-
• 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
   – 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
• 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
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
• 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
• Hence negative attention Iranian authorities may be
  substantiated also otherwise

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