ECtHR - F.G. v. Sweden (no. 43611/11) (Grand Chamber), 23 March 2016

Facts:

The applicant, an Iranian national, in 2010 applied for asylum in Sweden on the grounds that he had worked with known opponents of the Iranian regime and had been arrested and held by the authorities for small periods of time on at least three occasions between 2007 and 2009, notably in connection with his web-publishing activities and participation in demonstrations. He said that he had fled from Iran instead of obeying a summons order and appearing before the revolutionary Court to cooperate with the authorities against his friends.

After arriving in Sweden, he had converted to Christianity. However, he stated that the conversion was a private matter and he did not want to base his asylum request on it.

His request for asylum was rejected by the Swedish migration board, which considered the applicant’s alleged political activities of little credibility and in any case too limited to constitute a source of serious risk upon return. With regards to his new religious beliefs, the migration board noted that the applicant had not wished to invoke his conversion as a ground for asylum and that pursuing his faith in private was not a plausible reason for believing that he would risk persecution upon return.

The applicant’s appeal against the decision was also dismissed by the Migration Court. Indeed, even if the applicant’s political activities were deemed credible, they were in any case considered only peripheral and insufficient to substantiate a real and concrete risk of ill treatment if he was returned to Iran. In addition, the Court based its decision on the grounds of the applicant’s refusal to rely on his religious conversion to justify his asylum request. Indeed, although the applicant seemed to have based the appeal on his conversion and he had submitted the baptism certificate, he had stated anew that he did not wish to rely on his conversion as a reason for asylum.

The applicant requested for leave to appeal before the Migration Court of Appeal. He explained that he had previously refused to take advantage of his conversion for the purpose of asylum in order not to tarnish his conversion. In addition, he submitted a letter from his new congregation that supported his explanation and the authenticity of his conversion. Moreover, he claimed that some of the religious services he had taken part in had been broadcasted on the internet and this had increased the chance of being recognised by the Iranian authorities. Nevertheless, the leave to appeal was denied.

Finally, the Migration Board dismissed the applicant’s request to stay the execution of the removal order and to re-examine his request for asylum based on the new circumstances of the conversion to Christianity. Indeed, the Board held that the circumstance of the conversion was not new, and that the applicant had already declined to make use of it for the purpose of the Asylum request.  

The applicant then lodged an appeal before the ECtHR . The Chamber rendered its judgement on January 2014 holding that the implementation of the expulsion order against the applicant would not give rise to a violation of Arts. 2 or 3 of the Convention. The Chamber found that the applicant’s political activities were too peripheral to substantiate a serious risk of persecution upon return in Iran. As to the applicant religious conversion, the Chamber noted the refusal of the applicant to ground his asylum request on this and held that there was no reason to believe that the Iranian authorities were aware of his conversion.  

Decision & reasoning:

Outcome:

The Court held, unanimously, that the applicant’s return to Iran would not give rise to a violation of Articles 2 and 3 of the Convention, on account of the applicant’s political past in Iran.

However, the Court held, unanimously, that there would be a violation of Articles 2 and 3 of the Convention if the applicant were to be returned to Iran without an ex nunc assessment by the Swedish authorities of the consequences of his religious conversion.

Observations/comments:

The judgment was accompanied by several separate opinions.

1. In his concurring opinion, Judge Bianku underlined that the Swedish authorities had not adhered to the procedural obligation of an ex nunc analysis, also to be conducted in relation to sur place activities, and that such an obligation is well- established in ECtHR and national European case-law, as reported by the EDAL. Considering the obligation of ex proprio motu investigation by the Swedish authorities, Judge Bianku would have preferred the latter to be considered as a violation of Art. 3 of the Convention, instead of recognising only a potential future violation.

2. Judge Jäderblom expressed a concurring opinion as to the potential violation of Arts. 2 and 3 of the Convention and a dissenting opinion as to the preliminary justification for the examination of the case by the Grand Chamber.

With regard to the former, Judge Jäderblom  (in this respect joined by Judge Spano ) claimed that the Swedish authorities had not breached the shared duty  of assessing the risks linked to the applicant sur place conversion in the event of his return to Iran, since the latter had never clearly affirmed the will of observing his new religious faith in an extrovert and therefore dangerous way in Iran. However, Judge Jäderblom  acknowledged that the applicant had brought new material in this respect before the Court, and this revealed a risk of ill-treatment which the Swedish authorities should take into account in case of a new decision. For this reason, the Judge still voted as the majority for a potential violation of Arts. 2 and 3 of the Convention.  

3. Judges Ziemele, De Gaetano, Pinto De Albuquerque and Wojtyczek  expressed a separate opinion according to which there had been a violation of Arts. 2 and 3 of the Convention on account of the deportation on both substantive and procedural grounds.

As to the latter, the Judges highlighted that the Swedish authorities  presupposed that  the  applicant  would,  or  should,  refrain  in  Iran  from  taking  part  in church services, prayer meetings and social activities. Nevertheless, this is clearly in contrast with the CJEU judgment Bundesrepublik Deutschland v. Y. (C-71/11) and Z (C-99/11), the UNHCR guideline on international protection, as well as the 2012 “general legal position” of the Director General for Legal Affairs at the Swedish Migration Board concerning  religion  as  grounds  for  asylum. Indeed,  not only is the external manifestation of one’s faith an essential  element  of  the  very  freedom  protected  by  Article  9  of  the Convention, but at least – and certainly – in the case of Christianity, bearing external witness to that faith is an essential mission and a responsibility of every Christian and every Church.

As to the substantial violation, the Judges stressed that the applicant’s  conversion  to  Christianity  is  a  criminal  offence punishable by death in Iran. In addition to the risk of social persecution as a  Christian ,  the  applicant  risks  criminal  prosecution  for  the  crime  of apostasy which judges can impute  according to their own subjective understanding of Islamic law and prove it  in accordance with evidential rules which are at odds with the basic tenets of equality and fairness. Furthermore, the Judges  recalled that freedom of religion is protected by Article 18 of the Universal Declaration

Of Human Rights. For all these reasons they concluded that there had been a substantive violation of Articles  2  and  3  of  the  Convention  on  account  of  the  deportation  order issued against the applicant.

4. Judge Sajo, shared the conclusions of the separate  opinion  of  Judges Ziemele, De Gaetano, Pinto de Albuquerque and Wojtyczek. However, he would have preferred a separate analysis of the extent to which the Convention right to manifest one’s religion freely has extraterritorial application.

The AIRE  Centre  (Advice  on Individual Rights in Europe), the European Council on Refugees and Exiles (ECRE) and the International Commission of Jurists (ICJ), intervened in the case by submitting their written observations.

The interveners maintained that:

1) A full and ex nunc evaluation is required in assessing the risk upon removal according to the Court case law.

2) Requiring self-enforced concealing of one’s religious identity is a denial of the right to freedom of religion and may entail an endogenous harm falling  within  the  scope  of  Article  3  of  the Convention; and this is confirmed by the CJEU case law. A different interpretation would be inconsistent with the Refugee Convention.

For further analysis of the case see also the article published by Salvo Nicolosi on “Strasburg observers” website.  

Other sources:

UNHCR Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention, on the 1967 Protocol relating to the Status of Refugees; UNHCR Guidelines on International Protection regarding Religion-Based Refugee Claims;  UNHCR “Beyond Proof; Credibility Assessment in EU Asylum Systems”, of May 2013; United Kingdom Home Office’s “Iran, Country of Origin Information (COI) Report” of 26 September 2013; UN  Special Rapporteur’s report on the situation of human rights in the Islamic Republic of Iran of 13 March 2014; UK Foreign and Commonwealth Office’s report “Iran, Country of Concern” of 10 April 2014; United States Department of State’s 2010 “Update  on  the  Situation  for Christian Converts in Iran”; Director General for Legal Affairs at the Swedish  Migration  Board  “general  legal  position” 12 November 2012.