F.G. v Sweden: fine-tuning the risk assessment in asylum claims

By Salvo Nicolosi

In the Grand Chamber’s ruling of last 23 March 2016, the Strasbourg judges came back on appeal to the controversial case of F.G. v. Sweden, which on 16 January 2014 had divided the Chamber’s judges as to the assessment of the risk of persecution for an Iranian national who had applied for asylum in Sweden.

In its judgment, the Grand Chamber carves out an obligation for the competent domestic authorities to asses “of their own motion” the risk to the applicant, regardless of whether or not the applicant chooses to rely on some elements in his asylum application, when the rights guaranteed under Articles 2 and 3 ECHR are at stake.

The case offers an interesting opportunity to reflect on a twofold issue concerning: a) the assessment of the risk to the applicant of persecution; b) the meaning of the specific ground for persecution in order for an applicant to apply for asylum. Both aspects will be analysed after a short summary of the relevant facts of the case.

The factual background and Chamber judgment

The case at issue concerns an Iranian national who entered Sweden in 2009 and applied for asylum on the basis of his conversion to Christianity once in Sweden and his past political activities, including publishing web pages to oppose the regime in Iran. He had also participated in demonstrations and was even arrested, reporting ill treatment while being in detention.

Despite the fact that the applicant alleged a real risk of being exposed to persecution on political and religious grounds, if returned to Iran, at the domestic level his application was rejected and the Swedish authorities ordered his expulsion. As noted by the Migration Court of Appeal, at the initial stages of the procedure the applicant stated that he did not wish to rely on his conversion to Christianity as a reason for asylum, because he considered this circumstance merely personal. Nevertheless, at a later stage the applicant stated that the act of conversion from Islam to another religion was a taboo and punishable by death in Iran and “it would, however, obviously cause [him] problems upon return”.

Failing to obtain adequate protection at the national level, the applicant complained before the ECtHR that if expelled to Iran he would be at a risk of being punished or sentenced to death, relying on Articles 2 and 3 ECHR on the right to life and prohibition of degrading or inhuman treatment respectively.

In its judgment of 16 January 2014, the Chamber had confirmed the orientation followed at the domestic level and held that the implementation of the expulsion order against the applicant would not give rise to a violation of Articles 2 or 3 ECHR. The majority of judges found no risk of violation of Articles 2 and 3 ECHR, considering the risk of political persecution weak, while the assessment of the risk of persecution on religious grounds was limited to the mere circumstance that the applicant “has kept his faith a private matter”.

As a consequence, on 16 April 2014 the applicant requested that the case be referred to the Grand Chamber.

The Grand Chamber’s reasoning on the assessment of the risk

The judgment of 23 March 2016 offered the Grand Chamber the opportunity to address the mixed feelings arisen amongst the three dissenting judges in the Chamber’s ruling.

In its reasoning, the Grand Chamber paid attention to the general principles regarding the assessment of applications for asylum under Articles 2 and 3 ECHR, and carefully applied these principles drawn from consistent case law (Saadi v. Italy, para. 129).

As is known, an overriding component of any asylum application is the assessment of the risk to the applicant of persecution. In this regard, the Grand Chamber took the opportunity to emphasise that

“it is in principle for the person seeking international protection in a Contracting State to submit, as soon as possible, his claim for asylum with the reasons in support of it, and to adduce evidence capable of proving that there are substantial grounds for believing that deportation to his or her home country would entail a real and concrete risk of exposure to a life‑threatening situation covered by Article 2 or to treatment in breach of Article 3” (para. 125).

Nonetheless, the Court distinguishes two types of asylum claims based on nature of the risk. On the one hand, if the risk stems from a general and well-known situation, the authorities of the Contracting State have to carry out an assessment of the risk of their own initiative, as significantly illustrated by previous Grand Chamber’s cases in Hirsi Jamaa and M.S.S. (para. 126). On the other hand, the Court stressed that in situations of asylum claims based on individual risk “it must be for the person seeking asylum to rely on and to substantiate such a risk” (para 127). Such a methodological differentiation is relevant to conclude that in case the applicant chooses not to rely or disclose a specific individual ground for asylum, such as religious or political beliefs, “the State concerned cannot be expected to discover this ground by itself” (para. 127).

However, the Court interestingly pointed out that, taking into account the absolute nature of the rights guaranteed under Articles 2 and 3 ECHR, and vulnerability of asylum seekers, where the State is made aware of facts that could expose an applicant to an individual risk of ill-treatment, regardless of whether the applicant chooses to rely on such facts, it is obliged to assess this risk ex proprio motu (para. 127).

Subsequently, the Court applies these principles to the present case, separating the examination of the applicant’s political activities in Iran and his conversion to Christianity in Sweden.

As to the political activities, the Court compared the applicant’s case to other similar situations, such as S.F. and Others v. Sweden; K.K. v. France; R.C. v. Sweden, and concluded that the Swedish were right in asserting that the applicant was not involved as an activist in extensive political activities. As to the conversion to Christianity, the Court reached a different conclusion by reflecting on the meaning of the specific grounds for persecution and the State obligation to assess all information brought to the attention of the authority.

The meaning of the specific ground for persecution

The Grand Chamber’s reasoning provides an interesting contribution on the assessment of the risk to the applicant by interpreting the specific grounds for persecution. This allowed the Court to conclude that, being aware that the applicant belongs to a group of persons at possible risk of ill-treatment in Iran, the Swedish authorities failed to carry out a thorough examination of this risk on the basis that the applicant had not invoked it as a ground for asylum. The Court, in fact, carved out an obligation for the national authorities to assess “of their own motion” the risk to the applicant (para. 156). Following its reasoning, the Grand Chamber concluded that there would be a violation of Articles 2 and 3 ECHR if the applicant were removed to Iran without an assessment by the Swedish authorities of the consequences of his conversion.

Such a conclusion is crucial to understand the meaning to be given to religious beliefs as a special ground for persecution. From this perspective, the case contributes to the ongoing judicial dialogue with the EU Court of Justice (Ippolito, 2015), as the Strasbourg Court relied on the findings of its EU counterpart in Y (C-71/11) and Z (C-99/11). On the latter occasion the CJEU held that acts which may constitute a severe violation include serious acts which interfere with a person’s freedom both to practice his faith in private circles and to live that faith publicly, the possibility of concealing religious belief cannot be relied on to dismiss the persecution risk and refuse protection.

Concluding remarks

The case at issue is a valuable judicial contribution to interpreting issues of refugee law, namely the meaning of persecution on religious ground, as including any kind of personal or public practice, and offers an interesting example of the ongoing judicial dialogue between the two European Court over asylum matters. This constitutes the broader background from which the Grand Chamber has derived the obligation for the national authorities to assess the risk to the applicant even when he does not rely on some personal facts, such as a religious conversion. Indeed, following the Court’s orientation it is not reasonable to expect that the circumstance that an applicant intends to keep his/her religion private prevents the risk of being exposed to ill-treatment.

Ultimately, it is worth stressing that, as reiterated by the Grand Chamber, in cases concerning the expulsion of asylum seekers, the Court does not examine how the States honour their obligations under the Refugee Convention, but whether effective guarantees exist against arbitrary refoulement (para. 117). Such conclusion underscores the overriding role that the latter principle plays within international refugee law and international human rights law and, as the case at issue illustrates, the complementarity of these two branches of international law (Chetail, 2012) to foster an enrichment of the standard of protection and consolidate the guarantees for vulnerable groups such as asylum seekers.

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