Netherlands - ABRvS, 30 November 2012, 201205451/1/V2

Facts:

Appeal by the Minister against the judgment by the Court of Zutphen of 2 May 2012, case number AWB 10/6762. The Minister rejected the alien's asylum application. The appeal lodged by the alien against this decision was upheld by the Court. The Minister appealed against this judgment. The Council of State then notified the parties that it was staying the proceedings in the case until the Court of Justice of the European Union responded to the references for a preliminary ruling submitted by the Bundesverwaltungsgericht (the Federal Administrative Court) of the Federal Republic of Germany concerning the interpretation of Article 9 of the Qualification Directive. The Court of Justice of the European Union responded to these questions in its judgment of 5 September 2012 (C-71/11 and C-99/11).

Decision & reasoning:

The Minister's appeal stated that the Court had incorrectly found that he did not have sufficient grounds for his view that the alien had failed to demonstrate sufficiently that he feared persecution merely because of his conversion to Christianity. The Minister asserted in this regard that there is no active policy of persecution in Iran if one operates within certain bounds, keeps a low profile, and does not attract negative attention due to other problems. In the view of the Minister, there are no grounds for presuming that the alien, on a return to Iran, would attract the negative attention of the Iranian authorities, as he had already been living as a Christian in Iran without encountering any particular problems. The alien had not at that time made his conversion to Christianity public.

In the view of the Council of State, it follows from the judgment by the Court of Justice of the European Union of 5 September 2012 (C-71/11 and C-99/11) that, in an assessment of whether an alien, on return to his country of origin, has reason to fear persecution on grounds of religion, no distinction may be made between religious acts forming part of the 'core areas' of religious freedom and religious acts that do not form part of such 'core areas'. An alien cannot be expected to exercise restraint in the practice of his religion in his country of origin, to prevent persecution. As Articles 3.36 and 3.37 of the Aliens Regulations 2000 and Articles 9 and 10 of the Qualification Directive, which are transposed into these regulations, must be read in the light of this judgment, the policy adopted by the Minister, as shown in WBV 2007/15 and WBV 2011/14, to demand that an individual exercise restraint in the practice of his religion, is in breach of these Articles.

The conclusion by the Court that the decision lacks sufficient grounds is therefore correct.

Outcome:

The appeal by the Minister was dismissed; the judgment by the Court was upheld.