The Dutch policy on converted persons from Iran and international asylum law Hemme Battjes Professor European asylum law VU Amsterdam

Topics 1)Which infringements on freedom of religion in the country of origin would justify the grant of asylum? 2)Can converted persons be required to keep a low profile (abstain from conversion activities etc)? 3)Must person converted in NL show past problems in Iran?

1.1 Infringements freedom religion and Article 3 ECHR Article 3 ECHR: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” -> expulsion to situation where real risk of torture etc prohibited (since 1989 standing case-law) Article 3 ECHR requires “ minimum level of severity”, whether minimum reached “depends on all circumstances of the case”

1.1 Infringements freedom religion and Article 3 ECHR -Case-law ECtHR: mostly physical abuse -But e.g. severe discrimination, repeated punishment of conscientious objector military service might be sufficient -Impossibility to hold home services, convert others under current case-law in themselves presumably not sufficient [But (severe) discrimination, cruel punishment for such acts would be violation; see topic 2]

1.2 Infringements freedom religion and Article 9 ECHR Prohibition in Europe to hold home services, convert others will (in principle) be violation of Article 9 ECHR But ECtHR case Z and T v UK: prohibition expulsion because of infringements freedom religion in country of origin in principle only if also breach of Article 3 ECHR Reason: Article 9 ECHR predominantly written for situation within Europe

1.3 Infringements freedom religion and Refugee Convention Refugee Convention requires asylum if well-founded fear of “ persecution” NB persecution vs prosecution Certain authors assume that all breaches freedom religion amount to persecution (Hathaway 1991) But Article 9 EU Qualification Directive: persecution = Article 3 ECHR or measures same severity C-99/11: German Court asked European Court of Justice: “Does every interference with religious freedom which breaches Article 9 ECHR constitute an act of persecution, or is it required that the core area of that religious freedom is adversely affected?”

1.4 Infringements freedom religion: solutions? Conclusion: both ECHR and Refugee Convention require minimum “severity” Impossibility to convert, home services not sufficient If one wants NL to offer asylum to Christian Iranians in such cases: 1)National policy (groups under Article 29(1)(c) Aliens Act [NB Dutch govt announced that it will abolish this provision] 2)Broad interpretation “persecution” (questions ECJ) or Article 3 ECHR - whether minimum level is reached “depends on circumstances”

2.1 Discretion and 3 ECHR Vc 2/2.7.1: members minority religion are not expected to keep it secret, but certain discretion (terughoudendheid) required e.g. as regards conversion activities Can Christian be required to keep low profile in order to avoid ill-treatment/punishment? Article 3 ECHR: requires “real risk” of ill- treatment Presumably discretion requirement not necessarily at odds 3 ECHR: If likely that foreigner will abstain from dangerous activities, no risk

2.1 Discretion and 3 ECHR Behaviour alternative may amount to ill-treatment as well: – ECtHR: N v Sweden, Afghan woman: fears harassment etc if returns as single divorced woman = risk ill-treatment – Alternative: submission to husband who has total power, can rape without being punished etc = risk of ill-treatment too Iranian Christians: – Risk of ill-treatment if conversion activities – Behavior alternative = abstention from conversion: breach of 9 ECHR, not 3 ECHR -> hence not in itself sufficient [Unless applicants shows that likely that he will convert despite dangers – then there is no alternative]

2.2 Discretion and Refugee Convention Refugee Convention: asylum if a) well-founded fear of b)persecution c)for reasons of “religion”, political opinion etc Can Christian be required to keep low profile in order to avoid persecution? No: reason “religion” encompasses conversion activities (cf. Article 10 EU Qualification Directive) So who fears penalty (=persecution) because of conversion activities is a refugee Compare persons persecuted because of political opinion – minister would (and could) not require silence

2.2 Discretion and Refugee Convention NB Dutch courts sometimes apply Convention incorrectly Question: is an Iranian Christian who wishes to convert and as a consequence risks being sentenced, a refugee? Rephrased as “does requirement of discretion imply well- founded fear persecution?” ->Reasoning: “As persecution does not encompass prohibition on conversion, discretion may be required” Wrong : mixes up “persecution” and “persecution ground” Conclusion: requirement discretion possibly not violation Article 3 ECHR, but certainly at odds with Refuge Convention C-99/11: “Is the applicant to be expected to abstain from engaging in such religious practices (= non-core practices, e.g. conversion)?

3. Sur place claims Usually asulum apppplication substantiated with past harassments, threats etc Not possible if conversion in NL ( “ refugee sur place”) Vc C24/ (Iran): converted applicant must show “ problems” in Iran on other grounds Real risk ill-treatment (3 ECHR) and well-founded fear persecution (Refugee Convention) forward looking: past persecution is reason for assuming fear, not requirement! Hence negative attention Iranian authorities may be substantiated also otherwise