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Europe ruling supports public religious practice

21 September 2012

THE European Court of Justice (ECJ) has ruled that people unable to practise their religion in public may be regarded as subject to persecution and thus be eligible for asylum in the European Union.

The decision, published on 5 September, rejects a suggestion by the German authorities that, in assessing claims of religious persecution, a distinction could be made between "core areas" of religious freedom and its external manifestation. Such a distinction, the judgment reads,  is "incom­patible" with the "broad definition of religion" set out in the EU directive on refugee status, which encompasses "all its constituent components, be they public or private, collective or individual". It is the severity of the measures taken, or likely to be taken, against the claimant which should determine his or her refugee status, it says.

The ruling also rejects the suggestion that, in assessing the risk of a person's being persecuted, authorities should take account of the possibility of that person's avoiding the risk by abstaining from the religious practice in question.

The ECJ judgment was made after the German Office for Migrants and Refugees rejected the asylum claims of two Pakistani nationals and refused to recognise their refugee status. The applica­tions were made in January 2004 and August 2003. Both claimants are members of the Muslim Ahmadiya community, an Islamic reformist movement. "Y" stated that he had been beaten and threatened with death, and "X" said that he had been mistreated and imprisoned.

The Pakistani Criminal Code states that members of the com­munity may face imprisonment if they claim to be Muslim, preach their faith, or invite others to accept it.

The Office ruled in 2004 that, in both cases, there was insufficient evidence of a well-founded fear of persecution. In November 2008, a German appeal court found in favour of the two claimants, but the Office and Federal Delegate for Asylum lodged an appeal with the Federal Administrative Court, which referred the case to the ECJ. The Court concluded: "Where it is established that, upon his return to his country of origin, the person concerned will follow a religious practice which will expose him to a real risk of persecution, he should be granted refugee status."

The vice-chairman of the British Pakistani Christian Association, Wilson Chowdhry, said last Friday that the judgment was "a triumph for minorities in Pakistan and other persecuted nations".

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