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13 May 2020
The European Court of Human Rights (ECtHR) recently found Switzerland in breach of the European Convention on Human Rights (ECHR) for ordering the return to Afghanistan of an asylum seeker (the appellant) who had, according to the Swiss authorities, converted to Christianity after arriving in Switzerland. The ECtHR judgment (AA v Switzerland) entered into force on 5 February 2020.(1)
The ECtHR defined the points that must be examined by the asylum authorities when reviewing asylum applications in cases where the religious grounds for the recognition of refugee status occurred after the asylum seeker's departure from their country of origin. Moreover, it confirmed that being forced to conceal a personal conviction or a characteristic inextricably linked to an individual's personality may lead to the recognition of refugee status.
The appellant arrived in Switzerland in March 2014 and filed an asylum application. He stated that he had left Afghanistan because of insecurity and his conversion from Islam to Christianity.
The administrative authority, the State Secretariat for Migration (SEM), rejected the application for asylum in February 2015 on the basis that the stated grounds for asylum were not credible. In October 2016 the Federal Administrative Court (FAC) upheld the SEM's decision on appeal.
According to the FAC, the appellant's conversion to Christianity was genuine, but had occurred in Switzerland. Further, it stated that the appellant would not be exposed to serious harm if he were to be returned to Afghanistan, since although he could not return to his home province, he could stay in Kabul, where his uncles and cousins live. Moreover, the FAC stated that his conversion to Christianity was not a decisive factor, since it was unknown to his relatives in Kabul.
The appellant filed an appeal against the FAC's judgment before the ECtHR. During the proceedings before the ECtHR, the appellant's deportation procedure was suspended.
The ECtHR noted that there are numerous reports confirming that Afghans who have converted to Christianity are exposed to persecution in their home country. However, the FAC, the only judicial body to have examined the case, neither examined the way in which the appellant had practised his religion since being baptised in Switzerland nor did it consider how he would be able to practise it in Afghanistan were he to be returned.
By assuming that the appellant would encounter no problems living with his relatives in Kabul, the FAC did not conduct a rigorous and in-depth examination of the case.
Moreover, the FAC's judgment assumed that the appellant would be forced to live a lie and conceal his faith by restricting his religious practice to the strictly private sphere. In that regard, the ECtHR found that in some cases the daily concealment and denial of intimate convictions combined with the on-the-ground situation in Afghanistan could be characterised as unbearable psychological pressure, qualifying for recognition as a refugee. As the ECtHR interestingly noted, the FAC recognised this point in a later judgment in a different matter (Judgment D-4952/2014).(2)
In light of the above, the ECtHR unanimously admitted the appeal. It considered that, were the appellant to be deported, Switzerland would be in violation of Article 3 of the ECHR (prohibition of inhuman or degrading treatment).
Recognition of refugee status on religious grounds when those grounds appeared after departure from the country of origin
Under Swiss law
Before granting refugee status, it must be verified whether the grounds invoked by the asylum seeker confer recognition of said status. The Swiss asylum authorities examine, based on the country of origin, whether the person has a well-founded fear of persecution, were they to be returned to their country of origin.
In this context, Swiss asylum law makes a distinction between grounds appearing after and grounds appearing before departure from the country of origin.
If the grounds that could lead to the recognition of refugee status appeared only after departure from the country of origin, but the well-founded fear of persecution is found to be legitimate, refugee status will be recognised. However, the refugee in Switzerland will be granted so-called 'provisional admission', rather than asylum, since asylum cannot be granted to a person who has become a refugee due to their departure from their country of origin or because of their subsequent conduct (so-called 'subjective subsequent grounds').
In other words, asylum can be granted under Swiss law only if the grounds for recognition of refugee status appeared before the asylum seeker's departure from their country of origin.
When religion is the invoked grounds for asylum, any conversion in Switzerland will be investigated by the Swiss authorities as a subjective subsequent ground. In particular, the SEM's guidelines acknowledge that some asylum seekers from Muslim countries state that were they to return to their country of origin, they fear serious problems, often the death penalty, because of their conversion to Christianity in Switzerland. Therefore, refugee status may be recognised on these grounds, provided that the conditions for well-founded fear of persecution are met. However, their presence in Switzerland must then be regulated by provisional admission and not by asylum.
Application of AA v Switzerland
In the present case, the ECtHR did not question the distinction made by Switzerland based on the moment of the appellant's conversion, but brought additional elements regarding the questions that the authorities must address when reviewing the case.
It is now clear that the asylum authorities must answer the two following questions when examining the return of asylum seekers invoking religious motives, regardless of the moment of the conversion:
As the ECtHR noted, the FAC incorrectly left the latter question unanswered in its decision by assuming that a return would be unproblematic as the appellant's family in Kabul did not know about his conversion.
Concealment of a personal conviction or a characteristic inextricably linked to personality
Under Swiss law
According to FAC Judgment D-4952/2014, the concealment of a personal conviction or a characteristic inextricably linked to personality can cause unbearable psychological pressure, which may lead to the recognition of refugee status under Swiss asylum law. However, such recognition presupposes that the person concerned is forced to live in an environment in which they risk being discovered, denounced and penalised because of this conviction or characteristic.
The higher the risk of being discovered through an ill-considered gesture or comment and the more serious the state or private penalties are in the event of discovery, the more the asylum authorities should consider that the person concerned is under unbearable psychological pressure, since the person would be forced to deny their personality and lead a double life in order not to be discovered.
More specifically, as the ECtHR noted in the present case, the FAC already conceded in its Judgment D-4952/2014 that the daily concealment and denial of intimate convictions in the context of conservative Afghan society could, in certain cases, be qualified as unbearable psychological pressure and justify granting refugee status.
Application of AA v Switzerland
In this context, AA v Switzerland did not bring any additional elements, as it only confirmed the recent case law of the FAC (ie, Judgment D-4952/2014).
The principles invoked in the ECtHR judgment are consistent with the relevant guidelines of the Swiss asylum authorities and the recent case law of the FAC. However, an appeal to the ECtHR was necessary in order to correct an erroneous application of said principles in the case at hand. Therefore, the ECtHR brought a useful clarification as well as a welcome confirmation.
Interestingly, the above-described principles may also apply when asylum seekers invoke grounds other than religion. For example, a person fearing persecution in their country of origin because of their sexual orientation or gender identity may be recognised as a refugee on those grounds. Under certain circumstances, forced concealment of such characteristics, which are inextricably linked to an individual's personality, may cause unbearable psychological pressure leading to the recognition of refugee status. However, in the event that they come out after their arrival in Switzerland, the Swiss asylum authorities will consider this a subjective subsequent ground in accordance with their guidelines. However, that latter point is questionable, since sexual orientation or gender identity themselves are not necessarily 'subsequent' and may have been the actual cause for an individual's departure from their country of origin, even though coming out was unthinkable at that stage.
In practice, many asylum seekers struggle to provide proof of grounds for asylum and the asylum authorities benefit from broad discretionary powers. AA v Switzerland provides no help in this respect, since the ECtHR did not have to address the issue of proof, as the FAC did not question the sincerity of the appellant's conversion. Further ECtHR judgments bringing additional clarifications to Swiss and European asylum law in this regard would thus be welcome.
For more information please contact Rayan Houdrouge or Maxime Gay-Crosier at Lenz & Staehelin by telephone (+41 58 450 70 00) or email (firstname.lastname@example.org or email@example.com). The Lenz & Staehelin website can be accessed at www.lenzstaehelin.com.
(1) AA v Switzerland, judgment of 5 November 2019, available here (in French).
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