In his opinion for the Court of Justice of the European Union (in Germany v Y and Z, C-71/11, C-99/11) Advocate General Bot has taken the view that the prohibitions in Pakistani law directed against the Ahmadiyya community are likely to constitute a serious infringement of the freedom of religion; that the penalties may reach the level of persecution; and that an asylum seeker cannot reasonably be expected to forego his religious activities or 'forego manifesting his faith'.
So why is this potentially significant? After all, the opinion is in line with the existing Tribunal decision of MT (Ahmadi – HJ (Iran)) Pakistan [2011] UKUT 00277 (IAC); and, of course, it is so far only an opinion. It remains to be seen whether the Court 's judgment will follow the opinion and, if so, how much of the reasoning of the opinion will be adopted.
However, the opinion has a wider potential application beyond the situation of Ahmadis. Its real significance lies in its discussion of the more general question of the circumstances under which Directive 2004/83/EC (the 'Refugee Qualification Directive') will protect freedom of religion. The Advocate General's answer is to emphasise the severity of the consequences faced by an asylum seeker. Restrictions and even discrimination, per se, are not enough. What is to be assessed is whether there has been or would be 'a severe violation of freedom of religion' (107[1]) alternatively formulated as 'a restriction of such severity as to deprive him of his most essential rights.' (29).
Advocate General Bot also argues that freedom of religion includes 'the freedom...to change faith' (Opinion: paragraph 34) and that:
35 This component of the freedom of religion enjoys absolute protection.
One can immediately see that this conclusion has relevance to any assessment of cases of apostasy – say, for instance, the treatment by the Iranian authorities of an apostate. The UK Border Agency's own Operational Guidance Note states that:
3.8.6 Former Muslims who have converted from Islam are frequently persecuted, ill-treated and prosecuted for their beliefs. (UKBA: Operational Guidance Note – Iran; November 2011).
Further, Advocate General Bot addresses the third question referred to the Court:
90 Very specifically, the question is whether we may interpret this provision [Art 2(c) of the Directive] as meaning that the refugee's fear of persecution is not founded where he could avoid an act of persecution in his country of origin by giving up practising his religion publicly.
The Advocate General argues strongly against this interpretation. His reasoning is worth citing in full:
100. On the one hand, it seems to me contrary to the respect due to human dignity enshrined in Article 1 of the Charter. By requiring the asylum-seeker to conceal, amend or forego the public demonstration of his faith, we are asking him to change what is a fundamental element of his identity, that is to say, in a certain sense to deny himself. However, no one has the right to require that.
101. On the other hand, that interpretation is contrary to Article 10 of the Charter because it deprives the person of a fundamental right guaranteed to him by that provision in a manner not specifically authorised by Article 52(1) of the Charter.
102. In addition, by adopting such an interpretation, the authority responsible for the examination of the application for asylum might aggravate a situation in which the applicant is already subject to violation of his fundamental rights in his country of origin. Finally, it would make him partly responsible for the violence he suffers as a victim of oppression.
103. Thirdly, we cannot reasonably expect an asylum-seeker to forego manifesting his faith or to conceal any other constituent element of his identity to avoid persecution without putting at risk the rights that the Directive aims to protect and the objectives it seeks to pursue.
104. Persecution does not cease to be persecution because the individual may, upon his return to his country of origin, show restraint and discretion in the exercise of his rights and freedoms by hiding his sexuality or his political opinions, concealing his membership of a community or renouncing the practice of his religion. If that were the case, the Directive would be simply deprived of useful effect since it would not be able to protect persons who, because they choose to exercise their rights and freedoms in their country of origin, are exposed to acts of persecution. In cases such as that at issue in the main proceedings, that would be to set at nought the rights that the Directive seeks to secure to Y and Z, and on which their application for asylum is rightly based, namely their right to manifest their religion in public without fear of being persecuted.
105. Fourthly, this is an area which is not governed by rational considerations. As the Court ruled in Salahadin Abdulla and Others, assessment of the extent of the risk must in every case be carried out with vigilance and care, since what are at issue are issues relating to the integrity of the person and to individual liberties, matters which relate to the fundamental values of the Union. Yet to expect an asylum-seeker to behave reasonably while he lives in the insecurity and fear of assault or imprisonment is to misapprehend the risk to which the individual will be exposed. It is a risky gamble, and the right of asylum cannot be based on such a prognosis. In my view, such an approach would, moreover, amount to recklessness. In fact, regardless of the efforts that the person concerned may make in his way of life in public, he will remain a heretic, a dissident or a homosexual in his country of origin. And we know that in some countries, all activities, even the most insignificant, can be a pretext for all sorts of abuses.
The Advocate General concluded:
107...(2) Article 2(c) of Directive 2004/83 must be interpreted as meaning that there is a well-founded fear of persecution where the asylum-seeker intends, once back in his country of origin, to pursue religious activities which expose him to a risk of persecution. In this context, and in order to ensure observance of the fundamental rights enshrined in the Charter of Fundamental Rights of the European Union, the authority responsible for examining the application for asylum cannot reasonably expect the asylum seeker to forego these activities, and specifically to forego manifesting his faith.'
(Emphases added)
The Advocate General's opinion is closely argued. Amongst the authorities it draws on to formulate its reasoning is HJ (Iran) [2010] UKSC 31 at footnote 30. It was quickly recognised after the Supreme Court's decision in HJ (Iran) that it could have significant implications for the assessment of refugee claims other than those related to sexual orientation, but those implications are only slowly being worked through. Advocate General Bot's reasoning can be relied on as a persuasive example of the principles which decision makers should be applying to claims alleging persecution on grounds of religion. We await the judgment of the Court of Justice to see if it produces a decision just as binding on the UK's courts and tribunals as HJ (Iran) and potentially just as groundbreaking.