June 21, 2022
By Christos Tsevas
In the case M.A.M. v. Switzerland, the ECtHR concluded that there would be a violation of Articles 2 and 3 of the ECHR if the applicant were returned to Pakistan in the absence of a thorough and rigorous ex nunc assessment by the Swiss authorities of the general situation of Christian converts in Pakistan and the personal situation of the applicant. The ECtHR’s conclusions on the asylum assessment of the religious conversion, the ‘refugee sur place’ principle and the use of Country of Origin Information (COI) echo similar case-law, affirm the respective general principles on risk assessment in the context of the examination of an asylum application and navigate the waters for national asylum systems.
The applicant is a Pakistani national. In 2015, he submitted an asylum application on his arrival in Switzerland, arguing that his life was in danger due to a land dispute between his family and a neighboring family. After his family had won their case before the court, the other family tried to kill him. Thus, he had decided to leave the country.
The applicant was accommodated in the refugee centers of Lyss and Tramelan, where he attended services in various churches, seeking a Christian congregation to join. He ultimately opted for the Salvation Army, regularly attended services and participated in church activities. In 2016 he was baptized in a Mennonite church.
In 2017 the asylum authorities interviewed the applicant without being represented by a lawyer but accompanied by a pastor. At the end of the interview, he presented a recommendation letter in which Pastor P.D. stated that the applicant was regularly participating in the Salvation Army’s activities, including church services. The interviewer did not ask the applicant about his conversion. In 2018 the asylum application was rejected by the State Secretariat for Migration (SEM), who pointed out that the fear of persecution due to the land dispute was not a valid reason for granting him asylum since he could move to another part of Pakistan. Further, there was no general situation of violence extended to the whole territory and the country was able to provide protection.
The applicant appealed to the Federal Administrative Court against that decision, followed by a case review application. Those actions were dismissed in June and July 2020, respectively, based on the fact that it was a dispute between individuals of a local nature. The high court qualified the conversion as credible and analyzed the situation of Christians in Pakistan and the collective persecution risk. Although there was a social intolerance and an increase in acts of religiously motivated violence, this was not deemed to be high enough to assume collective persecution. Then the Court, examining the applicant’s risk, concluded that there were no concrete indications that his family and social environment knew of his conversion. At the same time, he could escape any possible inconvenience by settling in another part of Pakistan, where there are important Christian communities, if he decided to continue to practice his faith actively.
On 20 July 2020, the applicant applied to the ECtHR for an interim measure to inform the Government not to deport him to Pakistan. On 5 August 2020, the duty judge decided to accede provisionally to that request. The application was lodged on 22 July 2020.
Relying on Article 2 (right to life) and Article 3 (prohibition of torture and inhuman or degrading treatment) of the ECHR, the applicant submitted that his expulsion to Pakistan would present him with a real risk of death or ill-treatment. Under Article 9 (freedom of thought, conscience and religion), he argued that his freedom of religion would be seriously impeded in Pakistan.
The ECtHR concludes that there would be a violation of Articles 2 and 3 of the ECHR if the applicant were returned to Pakistan based on the shortcomings of the Swiss authorities’ assessment of his personal circumstances and the treatment of Christian converts in his country, while Article 9 was not examined separately. The ECtHR noted that the land dispute claim is not included in the application.
The ECtHR revisited the findings of certain judgments, such as N.A. v. Sweden, Tatar v. Switzerland, T.A. v. Sweden and found that the claims under Articles 2 and 3 are inseparable and therefore examined together. The first one concerned a Sudanese citizen who claimed that there is a risk of assassination by the Sudanese security services or the Sudanese armed forces if he returned to his country of origin. In the Tatar case, the applicant, a Turkish national, claimed to be at risk of death or ill-treatment if expelled to Turkey due to his mental health condition, at risk of being murdered as an act of blood feud by his wife’s relatives and at risk of being arrested and tortured as a member of a Turkish Communist Party. In the T.A. case, the applicant stated that he would face a risk if returned to Iraq due to his work for security companies that had cooperated with US troops. In all these cases, the ECtHR did not find a violation of Articles 2 and 3 of the ECHR.
By revisiting the aforementioned judgments, no matter what is the outcome of each judgment, the ECtHR uses the same methodology in the M.A.M. case. The reasoning on the combination of Articles 2 and 3 is very important for the assessment of similar cases at the national asylum system level, as it depicts a reality of asylum cases where such risks for these rights are combined and need to be taken into account together when there is such a reasonable possibility of persecution. The A.A. v. Switzerland judgment, which focused on the return of an Afghan Hazara convert from Islam to Christianity to his country of origin, the risk of persecution and death penalty and the absence of a sufficiently serious ex nunc examination of the consequences of the conversion, is referred in the M.A.M. judgment given its obvious similarities but, most of all, as an example of case that relates to a sur place religious conversion.
Besides, the ECtHR, in M.A.M. judgment, reflects the findings of the F.G. v. Sweden judgment of the Grand Chamber, which gathers the guidelines of some of the earlier judgments and summarizes the general principles for some of the judgments mentioned above. The main principles are related to the assessment of the risk, the nature of the examination and the procedural obligations in the context of the examination of an asylum application. In the context of expulsion, where there are substantial and proven grounds for believing that an individual, if deported to the country of destination, will run a real risk of being subjected to the death penalty, torture or inhuman or degrading treatment or punishment, both Article 2 and 3 imply that the Contracting State must not expel the individual.
As referred above, during the 2017 applicant’s interview, the authorities did not raise and consider the issue of his attendance at the Church of the Salvation Army, even though they were aware of his regular participation in the Salvation Army activities, including worship. However, they failed to ask the applicant, while he was not represented by a lawyer. Thus, the criteria of the asylum interview were not fully safeguarded.
The ECtHR noted that the asylum authorities had to assess the risk ex officio. The SEM refrained from clarifying the situation, while the high court carried out an in-depth examination of the situation of Christians, but not sufficiently regarding the situation of converts and the applicant’s situation, his convictions’ seriousness, his way of manifesting his faith in Switzerland, the way he intended to manifest it in Pakistan, the knowledge of his conversion by his family and his vulnerability to persecution and blasphemy accusations. Therefore, the Swiss authorities had not sufficiently assessed the risk that the applicant would face. On the other hand, the ECtHR concludes that the applicant has sufficiently demonstrated that his asylum application based on his conversion sur place deserved to be examined in more detail by the authorities, who were responsible for taking into consideration all the elements and every development regarding the situation of converts.
Thus, the ECtHR concludes that there would be a violation of Articles 2 and 3 of the ECHR if the applicant were returned to Pakistan in the absence of a thorough and rigorous ex nunc assessment by the Swiss authorities of the general situation of Christian converts in Pakistan and the personal situation of the applicant.
In view of the conclusions it has reached under Articles 2 and 3 of the ECHR, the ECtHR does not need to examine Article 9 separately.
Considering that the central issue of the asylum application was the recognition of the refugee status based on the applicant’s conversion to Christianity, the failure of the national asylum and judicial authorities to preserve the guarantees of the asylum procedure (interview, evidence assessment, assessment of the well-founded fear and risk of return according to the COI) was vital to the violation of Articles 2 and 3 of the ECHR. The fact that the national authorities had not asked about or thoroughly analyzed the conversion claim indicates their failure to adequately justify their rejection and a failure to abide by an obligation to protect the applicant through international protection. This is a critical first finding, revisiting those of A.A v. Switzerland judgment on religious conversion and sur place assessment, for every national asylum system, its gaps and obligations. Thus, the links between the ECHR violation and the national legislation on beneficiaries of international protection need to be taken into account.
More specifically, the ECtHR’s reference to EU documents (par. 29, 30, 72), such as the 2021 European Parliament’s Resolution on the blasphemy laws in Pakistan (2021/2647(RSP)) and the 2020 report of the European Asylum Support Office (EASO) “Country of origin information report – Pakistan: Security Situation”, affirms its methodology to use sources, legal texts or case-law that do not always bind the Contracting State but are helpful for its reasoning. Three remarks could be made at this point. First, the EU legislation and CJEU’s case-law have extensively been mentioned in F.G. v. Sweden judgment (cited above, par. III), even though the ECtHR does not have to use them as a tool of interpretation. Second, the EU relevant directives, especially the EU Qualification Directive (2011/95/EU) (e.g preamble par. 4, 23, 24, Article 2 (c) of the QD), and the CJEU’s case-law are based on international refugee law and the 1951 Refugee Convention, the UNHCR guidelines being broadly part of this branch of law. Thus, any links between the EU asylum and the international refugee law context in the ECtHR case-law, no matter whether the Contracting State is an EU member state, are desirable for this case-law. The reference (par. 32, 72) to the 2017 United Nations High Commissioner for Refugees (UNHCR), “Eligibility Guidelines for Assessing the International Protection Needs of Members of Religious Minorities from Pakistan”, shows that the ECtHR relates the asylum case, the shortcomings of the Swiss asylum system and the applicant’s need for international protection with the refugee law context and UNHCR guidelines, as an interpretation tool. According to these guidelines, “individuals who converted from Islam to another religion might be at risk both due to their membership to a religious minority and because they might be perceived as having committed apostasy” (par. 32). This reference and the possible risk profiles can lead to specific refugee grounds fulfilling the criteria of the refugee definition. The risks for converts are shown by the 2021 report of the British Home Office “Country Policy and Information Note Pakistan: Christians and Christian converts”, also used by the ECtHR (par. 75). Third, Switzerland’s links with the EU and the cooperation with the European Union Agency for Asylum (EUAA, former EASO) and the signature of the 1951 Refugee Convention are essential factors for the aforementioned references of the ECtHR in such a case.
The ECtHR’s use of international reports on the situation in the country and human rights violations and the finding that the high court has not examined the situation of converts to Christianity can demonstrate a constant effort of the ECtHR to draw conclusions from such COI, which must be guidance for every such case, as the failure of a national asylum system sometimes lies in the details (the assessment for Christians but not for Christian converts). Τhe third party interventions, such as in the present case, could be critical in confirming or clarifying COI use while supporting such a dialogue related to asylum cases before the ECtHR. The ECtHR’s COI analysis can highlight the handling of conversion cases and religious persecution of applicants from other countries of origin where there might be a risk of ill-treatment, such as in Syria and Afghanistan. The same conclusions can be drawn regardless of the conversion, even if it concerns a conversion from Islam to Christianity, Christianity to Islam, or other religious, irreligious, or atheist beliefs. Thus, the ECtHR’s conclusions can be used in any conversion case.
Therefore, the case-law can guarantee how such claims are processed at the national level, given that the ECtHR uses part of the asylum and international protection assessment. This is crucial if we consider refugee and human rights law links. The well-founded fear of persecution and the refugee ground in asylum cases can correspond to the risk assessment methodology of asylum cases before the ECtHR. The shortcomings of national authorities or courts in taking into account possible human rights violations, either this refers to COI use, the adequate assessment of refugee profiles, or a proper interview process could form refugee law guarantees within the ECtHR case-law.
Additional guidelines and interpretation tools can be useful for the ECtHR’s reasoning in such a case-law context and indicate the lack of assessment of national authorities. The 2004 UNHCR Guidelines on International Protection: Religion-Based Refugee Claims under Article 1A(2) of the 1951 Convention and/or the 1967 Protocol relating to the Status of Refugees (HCR/GIP/04/06) refer to the conversion post departure, creating a sur place claim. According to the Guidelines, credibility assessment is very crucial in such cases. The 2019 reissued UNHCR Handbook on Procedures and Criteria for Determining Refugee Status and Guidelines on International Protection establishes the guidelines for interpretation of the 1951 Refugee Convention and the religious persecution that could take different forms (par. 41, 54, 65, 71-73). The European Union Agency for Asylum (EUAA) context is also fundamental for similar cases, given the need for CEAS harmonization and the safeguards within the asylum procedures. For instance, the Practical Guides on Personal Interview (2014) and Evidence Assessment (2015) indicate the principles and good practices for international protection interviewing and evidence assessment. All these documents can be helpful guidance for national asylum authorities and when the ECtHR demonstrates the connection with the ECHR violations in cases such as the present, it becomes obvious for the authorities as well.
Αn assessment of the violation of Article 9 of the ECHR would be an interesting complementary approach for the ECtHR and national asylum case-law. Indeed, it would align with the principles of refugee status determination, international refugee law and European asylum law (Articles 9 and 10 (1b) of the QD) and the content of the religious persecution. It is crucial especially when the persecution does not refer only to violation of Articles 2 and 3 of the ECHR but also to religious discrimination, intolerance, hatred that amount to refugee persecution, as it is demonstrated in the aforementioned UNCHR guidelines and other relevant documents. It could also start a fruitful dialogue with CJEU case-law (e.g. Joined cases Y (C-71/11) and Z (C-99/11) (GC)) on the content of “acts of persecution” (Article 9 1b of the QD: “In order to be regarded as an act of persecution within the meaning of Article 1(A) of the Geneva Convention, an act must: (…) b) be an accumulation of various measures, including violations of human rights which is sufficiently severe as to affect an individual in a similar manner as mentioned in point (a)”) and the links of religious persecution based on discrimination and the respective refugee ground, Articles 9 and 14 ECHR and 10 of the EU Charter of Fundamental Rights.
The main findings of the judgment, which makes part of a significant ECtHR case-law on asylum, point out the obligation of asylum authorities to preserve specific guarantees on assessment of sur place and religious conversion claims and evolve the dialogue between ECtHR and national courts, and between European Courts on risks of returns or international protection case-law based on different refugee grounds, such as sexual orientation (ECtHR, B and C v. Switzerland, 2020) or conscientious objection (CJEU, EZ v. Bundesrepublik Deutschland, C-238/19). Switzerland might not be an EU member state but the aforementioned links of the country with EU are important. Further, the ECtHR’s methodology of using for inspiration material, reports, legal texts that might not bind the Contracting State of the specific case is also a reality, while international refugee law that is part of the EU directive and the CJEU case-law is always binding for many states members of the Council of Europe.
Last but not least, the ECtHR shows that refugee law can be further infiltrated into its case-law, revisiting its former judgments and building on new challenges that arise before the national asylum authorities and the ECtHR. The ECtHR could further use international refugee law and European asylum law as sources of inspiration for the content of ECHR rights.