European Court of Human Rights, A.A. v. Switzerland, 5 November 2019, n°32218/17
| Country of applicant: | Afghanistan |
| Court name: | European Court of Human Rights |
| Date of decision: | 05-11-2019 |
| Citation: | European Court of Human Rights, A.A. v. Switzerland, 5 November 2019, n°32218/17 |
Keywords:
| Keywords |
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Assessment of facts and circumstances
Description
The duty of the state to carry out an individual assessment of all relevant elements of the asylum application according to the provisions of Article 4 of the Qualification Directive, including considering past persecution and credibility; and the duty of the applicant to submit as soon as possible all statements and documentation necessary to substantiate the application. |
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Burden of proof
Description
"In the migration context, a non-national seeking entry into a foreign State must prove that he or she is entitled to enter and is not inadmissible under the laws of that State. In refugee status procedures, where an applicant must establish his or her case, i.e. show on the evidence that he or she has well-founded fear of persecution. Note: A broader definition may be found in the Oxford Dictionary of Law." |
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Credibility assessment
Description
Assessment made in adjudicating an application for a visa, or other immigration status, in order to determine whether the information presented by the applicant is consistent and credible. |
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Individual assessment
Description
The carrying out of an assessment on an individual and personal basis. In relation to applications for international protection, per Article 4(3) of the Qualification Directive, this includes taking into account: (a) all relevant facts as they relate to the country of origin at the time of taking a decision; (b) the relevant statements and documentation presented by the applicant; “(c) the individual position and personal circumstances of the applicant, including factors such as background, gender and age, so as to assess whether, on the basis of the applicant's personal circumstances, the acts to which the applicant has been or could be exposed would amount to persecution or serious harm; (d) whether the applicant's activities since leaving the country of origin were engaged in for the sole or main purpose of creating the necessary conditions for applying for international protection, so as to assess whether these activities will expose the applicant to persecution or serious harm if returned to that country; (e) whether the applicant could reasonably be expected to avail himself of the protection of another country where he could assert citizenship.” |
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Inhuman or degrading treatment or punishment
Description
A form of serious harm for the purposes of the granting of subsidiary protection. The Trial Chamber of the International Criminal Tribunal for the Former Yugoslavia in Celibici defined cruel or inhuman treatment as ‘an intentional act or omission, that is an act which, judged objectively, is deliberate and not accidental, that causes serious mental or physical suffering or injury or constitutes a serious attack on human dignity.’ “Ill-treatment means all forms of cruel, inhuman or degrading treatment or punishment, including corporal punishment, which deprives the individual of its physical and mental integrity." |
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Non-refoulement
Description
A core principle of international Refugee Law that prohibits States from returning refugees in any manner whatsoever to countries or territories in which their lives or freedom may be threatened. Note: The principle of non-refoulement is a part of customary international law and is therefore binding on all States, whether or not they are parties to the Geneva Convention. |
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Persecution Grounds/Reasons
Description
Per Article 1A ofthe1951 Refugee Convention, one element of the refugee definition is that the persecution feared is “for reasons of race, religion, nationality, membership of a particular social group or political opinion“. Member States must take a number of elements into account when assessing the reasons for persecution as per Article 10 of the Qualification Directive. |
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Personal circumstances of applicant
Description
The range of factors such as background, gender, age, and individual position which must to be taken into account in the assessment of an application for international protection per Article 4(3)(c) of the Qualification Directive. |
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Refugee sur place
Description
In the EU context, a person granted refugee status based on international protection needs which arose sur place, i.e. on account of events which took place since they left their country of origin. In a global context, a person who is not a refugee when they leave their country of origin, but who becomes a refugee, that is, acquires a well-founded fear of persecution, at a later date. Synonym: Objective grounds for seeking asylum occurring after the applicant's departure from his/her country of origin Note: Refugees sur place may owe their fear of persecution to a coup d'état in their home country, or to the introduction or intensification of repressive or persecutory policies after their departure. A claim in this category may also be based on bona fide political activities, undertaken in the country of residence or refuge. |
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Country of origin
Description
The country (or countries) which are a source of migratory flows and of which a migrant may have citizenship. In refugee context, this means the country (or countries) of nationality or, for stateless persons, of former habitual residence. |
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Religion
Description
One of the grounds of persecution specified in the refugee definition under Article 1A ofthe1951 Refugee Convention. According to the Qualification Directive, the concept of religion includes in particular the holding of theistic, non-theistic and atheistic beliefs, the participation in, or abstention from, formal worship in private or in public, either alone or in community with others, other religious acts or expressions of view, or forms of personal or communal conduct based on or mandated by any religious belief. |
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Membership of a particular social group
Description
One of the grounds of persecution specified in the refugee definition per Article 1A ofthe1951 Refugee Convention. According to the Qualification Directive, membership of a particular social group means members who share an innate characteristic, or a common background that cannot be changed, or share a characteristic or belief that is so fundamental to identity or conscience that a person should not be forced to renounce it, and that group has a distinct identity in the relevant country, because it is perceived as being different by the surrounding society. Depending on the circumstances in the country of origin, a particular social group might include a group based on a common characteristic of sexual orientation. Sexual orientation cannot be understood to include acts considered to be criminal in accordance with national law of the Member States: Gender related aspects might be considered, without by themselves alone creating a presumption for the applicability of this concept. |
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Real risk
Description
In order to be eligible for subsidiary protection, a third country national or stateless person must demonstrate that if returned to his or her country of origin, or in the case of a stateless person, to his or her country of former habitual residence, s/he would face a real risk of serious harm as defined in QD Art. 15 and that s/he is unable, or owing to such risk, unwilling to avail her/himself of the protection of that country. The fact that an applicant has already been subject to persecution or serious harm or to direct threats of such persecution or such harm, is a serious indication of the applicant's well-founded fear of persecution or real risk of suffering serious harm, unless there are good reasons to consider that such persecution or serious harm will not be repeated. |
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Death penalty / Execution
Description
Capital punishment; judicially pronounced sentence of death as a legally sanctioned punishment for criminal activity. Considered to be a form of serious harm for the purposes of the granting of subsidiary protection. |
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Return
Description
"In the context of the Return Directive (2008/115/EC), the process of going back - whether in voluntary compliance with an obligation to return, or enforced - to: - one's country of origin; or - a country of transit in accordance with EU or bilateral readmission agreements or other arrangements; or - another third country, to which the third-country national concerned voluntarily decides to return and in which he/she will be accepted. There are subcategories of return which can describe the way the return is implemented, e.g. voluntary, forced, assisted and spontaneous return; as well as sub-categories which describe who is participating in the return, e.g. repatriation (for refugees)." |
Headnote:
When a national authority assesses the likely persecution of an applicant for religious purposes in case of return to his/her country of origin, the national authority must evaluate, inter allia, the way the applicant will live his/her faith in his/her country of origin. The Court found that because the applicant is of Hazara ethnic origin and he converted to Christianism in Switzerland, he might face persecution in violation of art. 3 ECHR in case of return to Afghanistan. The TAF did not assess with enough seriousness the consequences of the applicant conversion ex nunc.
Facts:
On 30 March 2014, the applicant of Afghan origin, entered the Swiss territory and requested international protection. He claimed asylum on the basis of a fear of persecution in Afghanistan for his religious conversion to Christianity.
On 27 February 2015, the Swiss administration refused this request arguing that the applicant’s story lacked credibility. The national administration considered that the conversion had taken place in Switzerland. In addition, it contested the risk of persecution for religious reasons for the applicant. This is due to the implausible distribution of bibles by the applicant which he submits as part of the motives of his persecution.
On 30 March 2015, the applicant introduced a remedy before the Federal Administrative Tribunal.
On 21 October 2016, the applicant’s appeal before the Federal Administrative Tribunal (FAT) was denied. The FAT argued that the applicant’s story lacked credibility and was incoherent. Moreover, the FAT found that the religious conversion of the applicant itself did not suffice to conclude there was a risk of persecution for reasons of religion. It stated that there is no risk of persecution because it was a conversion sur place. Lastly, the FAT assessed that the individual circumstances were not enough to avoid the return decision, therefore the return was legal and possible.
On 27 April 2017, the applicant introduced an application before the European Court of Human Rights (ECtHR) based on a violation of the article 3 from the ECHR.
Decision & reasoning:
Regarding religion-based claims, the Court referred to F.G. v. Sweden and noted thatthe State should evaluate whether a foreign established properly his religious conversion. This conversion must be based on real and personal beliefs. In addition, the jurisdiction must evaluate whether the conversion has happened and whether one might believe that the foreigner will live his faith whenever returning to his country of origin. According to UNCHR sources and jurisprudence (Pa v. France), the Afghans who have converted to Christianity are exposed to a real risk of persecution, potentially including persecution by the State and the death penalty.
In this case, considering that the situation in Afghanistan permits some situations of return (E.P. and A.R. v. the Netherlands), the ECtHR focused its reasoning on the personal situation of the applicant.
The ECtHR assessed whether the applicant’s personal circumstances would lead to persecution for his new Christian beliefs in case of return to Afghanistan.
Τhe ECtHR observed that the FAT considered the applicant’s return to his country of origin not problematic because his new Christian beliefs were only known by his relatives. On this aspect, contrary to the Swiss government’s pleading, the ECtHR found that the FAT has not made a rigorous and in-depth examination of the situation of the applicant for a likely return to his country of origin. The ECtHR stresses that the FAT did not assess how the applicant lived his faith in Switzerland and how he will live it in Afghanistan. The FAT should have made this assessment by sending back the case to the national administration or asking questions to the applicant about how he might imagine living his faith both in Switzerland and Afghanistan.
Moreover, the ECtHR emphasised the likely situation for the applicant to live his religious life as a lie and be made to live isolated from any Christian community. The ECtHR recalled that the FAT in another judgment, stated that hiding and the daily denial of personal beliefs could in certain circumstances amount to unbearable psychologic pressure.
Furthermore, the ECtHR also noted the applicant’s situation as a minor, when he arrived to Switzerland, as well as the persecution that his ethnic community suffers in Afghanistan.
It concluded that because the applicant is of Hazara ethnic origin and he converted to Christianism, he might face persecution in violation of art. 3 ECHR in case of return to Afghanistan. The TAF did not assess with enough seriousness the consequences of the applicant conversion ex nunc. Consequently, a return to Afghanistan for the applicant would mean an effective violation of the Article 3 ECHR
Outcome:
Application granted.
Observations/comments:
This case summary has been written by Alexandre Piérard, LLM student at UGent.
Relevant International and European Legislation:
Cited Cases:
| Cited Cases |
| ECtHR - F.G. v Sweden, Application No. 43611/11 |
| ECtHR - J.K. and Others v. Sweden, Application no. 59166/12 |
| ECtHR – Saadi v. Italy, Application No. 37201/06, 28 February 2008 |
| ECtHR - M.O v Switzerland, Application no. 4128/16, 20 June 2017 |
| ECtHR - A.M. v. Netherlands, no. 29094/09, 5 July 2016 |
| ECtHR, X v. The Netherlands, 10 July 2019, n°14319/17 |
| ECtHR, E.P. and A.R. v. The Netherlands, 11 July 2017, n°43538/11 |
| ECtHR, E.P. and A.R. v. The Netherlands, 11 July 2017, n°63104/11 |
| ECtHR, Pa. v. France, 23 March 2010, n°45269/07 |