Germany - Federal Administrative Court, 5 March 2009, 10 C 51.07

Facts:

The applicant, born in 1974, is a Chinese national. In March 1999, she joined an evangelical "home church" or "underground church” that was not officially registered and that was therefore considered illegal by the Chinese authorities.

In February 2001 she flew from Shanghai to Germany with her passport and visitors visa and applied for asylum. The asylum authorities rejected her application. The Administrative Court rejected her appeal against the authorities’ decision. In her appeal of the Administrative Court’s decision, the applicant stated that in Germany she has again joined an Chinese evangelical congregation. In a decision of 12 July 2007, the High Administrative Court of Hessen upheld the appeal. The court found that there was a considerable probability that in the event of return to China, she would be recognised and persecuted, particularly because of her participation in founding a Chinese underground church. 

The authorities appealed to the Federal Administrative Court.

Decision & reasoning:

The court stated:

For the purposes of assessing refugee claims, persecution is defined in Art 9.1 (a) of the Qualification Directive. It states that:

"Acts of persecution within the meaning of the Geneva Convention must be sufficiently serious by their nature or repetition as to constitute a severe violation of basic human rights, in particular the rights from which derogation cannot be made under Art 15.2 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR)."

Thus a grant of refugee status is contingent on an act of persecution which - drawing upon the reasons for persecution stated in Art 10 of the Qualification Directive – severely violates a basic human right.

In examining whether an act constitutes a serious violation of a basic human right within the meaning of Art 9.1 of the Qualification Directive, it has first to be determined which human right is being interfered with. In connection with religious activity it is decisive whether a danger to life, limb or liberty is at stake or an interference with religious freedom because the believer is being required to restrict or abandon his or her faith . 

In cases of interference with life, physical integrity or physical freedom, the case law to date has assumed, without restriction, that significant persecution exists if the interference is substantial and associated with characteristics relevant to asylum. Art 9 of the Qualification Directive does not entail any changes in this respect. Under Art 9.1 (a) of the Qualification Directive the basic human rights whose serious violation always results in an assumption of persecution particularly include the rights from which (under Art 15.2 in conjunction with Art 15.1 of the ECHR) no derogation is permitted, even in case of war or other public emergency. These rights that persist even in public emergencies include the right to life, the prohibition of torture and inhuman or degrading treatment or punishment, the prohibition of slavery and servitude and the prohibition of convictions for criminal offences without a proper legal basis. In the event of interference with physical integrity or physical freedom, significant persecution is to be assumed automatically; provided the interference is covered by Art 3 of the ECHR. In any case, the right to physical integrity and physical freedom is a fundamental human right. If an interference with this right is not covered by Art 3 of the ECHR, persecution must be assumed if the violation of a right is severe within the meaning of Art 9.1 (a) of the Qualification Directive. The referral in that provision to the rights listed in Art 15.2 of the ECHR is not exclusive.

If, in connection with religious activity, the matter at issue is not an interference with life, physical integrity or physical freedom, it must be examined whether there is an interference with religious freedom, which constitutes persecution within the meaning of Art 9.1 of the Qualification Directive. Although religious freedom is not among the rights protected even in emergencies under Art 15.2 of the ECHR, it too is one of the basic human rights protected under Art 9.1 (a) of the Qualification Directive – in addition to the rights that are protected even in emergencies. In any case, a severe violation of religious freedom exists if a believer is so seriously impeded from practicing his/her faith that the right to religious freedom is violated in its core. If this core area is violated, a severe violation of rights within the meaning of Art 9.1 (a) of the Qualification Directive must be affirmed and if the other requirements are met refugee status must be granted accordingly. Whether and under which circumstances refugee status under the Qualification Directive also covers religious activity in public, is a matter of uncertainty under Community law that must ultimately be decided by the European Court of Justice.

In initial proceedings in asylum law - as here - there is no limitation on the recognition of subjective reasons that arise after leaving the country of origin (Art 5.2 of the Qualification Directive; see, previously, decision of 18 December 2008 of the Federal Administrative Court, 10 C 27.07). According to the findings of the High Administrative Court, moreover, the applicant already practiced her faith in her country of origin, and attracted the attention of the authorities there as a member of a prohibited home church (see Art 4.3 (d) in conjunction with Article 5.2 of the Qualification Directive).

The High Administrative Court established the facts insufficiently. Therefore, it is not possible to examine a potential persecution due to her religious activities in Germany in case of the applicant’s return to China. The High Administrative Court must not base its decision purely on the wording of the Criminal Code, but has to examine, e.g., how this legal provision is actually applied in China, if there are regional differences, if and to what extent the Chinese authorities’ measures are directed in the same way against religious activity in other countries and if and in which way Chinese authorities obtain knowledge of such activities.

Outcome:

The case was remitted to the High Administrative Court for further findings and a decision.

Subsequent proceedings:

Unknown

Observations/comments:

An English translation (commissioned by the Federal Administrative Court, but not officially authorized) is available at:
http://www.bverwg.de/enid/675f6deed63906108930598f94338a4b,0/Decisions_in_Asylum_and_Immigration_Law/BVerwG_ss__C_5ss__7_kq.html