Two Pakistani asylum seekers, who are active members of the Ahmadiyya community which is an Islamic reformist movement, long contested by the Sunni Muslim majority in Pakistan, and whose religious activities are severely restricted by the Pakistan Penal Code, applied for asylum in Germany. They claimed that they may not profess their faith publicly without those practices being liable to be considered blasphemous, a charge punishable, according to that code, by a sentence of imprisonment or even the death penalty.

The Bundesverwaltungsgericht (Federal Administrative Court, Germany) asks the Court of Justice to set out the circumstances in which an infringement of the freedom of religion, and in particular of the right of an individual to live his faith freely and openly, may constitute an ‘act of persecution’ within the meaning of Directive 2004/83/EC1 seeking to establish minimum standards and common criteria for all the Member States for the purposes of the recognition of refugee status for asylum seekers within the meaning of Article 1 of the Geneva Convention

In his Opinion today, Advocate General Bot recalls that the aim of the common European asylum system is not to grant international protection whenever an individual cannot fully and effectively exercise the freedoms guaranteed by the conventions on the protection of human rights in his country of origin, but limits the recognition of refugee status to an individual who may be exposed to persecution in his country of origin, that is to say a serious and intolerable attack on his person and, in particular, his indefeasible rights, and whose life has become intolerable in that country.

The Advocate General states that a serious infringement of the freedom of religion may constitute an ‘act of persecution’ within the meaning of the directive where the asylum seeker, by exercising that freedom or as a result of infringing the restrictions placed on the exercise of that freedom in his country of origin, runs a real risk of being executed or subjected to torture, or inhuman and degrading treatment, being reduced to slavery or servitude, or being prosecuted or imprisoned arbitrarily. In that context, it is for the authorities responsible for examining the application for asylum to verify specifically the rule invoked in the country of origin and the repressive practice in a broad sense.

As regards the situation of members of the Ahmadiyya community in Pakistan, the Advocate General takes the view that the prohibitions in Pakistani law are likely to constitute a serious infringement of the freedom of religion, and that the penalties which accompany it, if they are in fact applied, may reach the level of persecution because they aim to deprive any person who persists in publicly manifesting his faith of his most basic rights by threatening him with imprisonment or death.

Furthermore, the Advocate General takes the view that the authority responsible for examining an application for asylum cannot reasonably expect the applicant to renounce his religious activities in order to avoid persecution. That would amount to denying him a basic right which he is guaranteed by the conventions on the protection of human rights. Moreover, that would deprive the directive of its effectiveness since it would not be able to protect a person who, because he chooses to exercise his rights and freedoms in his country of origin, is exposed to acts of persecution. Finally, regardless of the efforts which the individual may consent to in his manner of living his faith in public, any activities, even the most insignificant, may be, in certain countries, a pretext for all sorts of abuse.

NOTE: The Advocate General’s Opinion is not binding on the Court of Justice. It is the role of the Advocates General to propose to the Court, in complete independence, a legal solution to the cases for which they are responsible. The Judges of the Court are now beginning their deliberations in this case. Judgment will be given at a later date.