European Court of Justice, 05.09.2012, Case No.: C-71/11, C-99/11
In Germany, the granting of asylum is regulated by the Basic Law (Grundgesetz) and the Asylum Procedure Act (AsylVfG).
According to Article 16a of the Basic Law, persons persecuted on political grounds are entitled to asylum in Germany. A person is considered politically persecuted if, due to their race, religion, nationality, membership in a particular social group, or political opinion, they would face persecution with the risk of life, physical integrity, or freedom if extradited to their home country.
Article 16a of the Basic Law stipulates the following:
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- Politically persecuted persons have the right to asylum (Article 16a, Paragraph 1 of the Basic Law).
- Asylum seekers entering from Member States of the European Communities and safe third countries generally do not have the right to asylum (Article 16a, Paragraph 2 of the Basic Law).
- The legislature can define „safe third countries“ and „safe countries of origin“ through a law requiring consent (Article 16a, Paragraph 3 of the Basic Law).
- The enforcement of measures to terminate residence for those entering from „safe“ states (Article 16a, Paragraph 4 of the Basic Law).
- Regulation of the relationship between Article 16a of the Basic Law and international treaties concerning asylum claims (Article 16a, Paragraph 5 of the Basic Law).
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By incorporating it into the Basic Law, the right to asylum has been established as an individual legal claim with constitutional status.
The Federal Office for Migration and Refugees (BAMF) is responsible for examining asylum applications. An asylum applicant can challenge a negative decision by the BAMF through administrative legal channels.
Article 16a of the Basic Law applies exclusively to those who have suffered or are at imminent risk of state persecution upon return to their country of origin.
The term „political persecution“ is not explicitly defined in the Basic Law. Therefore, the determination of this term has been left to the jurisprudence, particularly of the Federal Constitutional Court and the administrative courts.
In determining this term, the courts have particularly oriented themselves to the definition of „refugee“ as outlined in the Geneva Convention on Refugees.
The Geneva Convention defines a refugee as a person who, „…owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country.“
In the aforementioned ruling, the ECJ determined that sufficiently severe infringements on religious practice in public may constitute persecution on religious grounds, thus necessitating the recognition of refugee status.
Introduction: Asylum Application of Y and Z
Y and Z, both originating from Pakistan and residing in Germany, applied for asylum and protection as refugees. Both belong to the Ahmadiyya community and based their application on the persecution they faced in Pakistan due to their religious affiliation.
Background: Persecution in Pakistan
Y described being repeatedly beaten and stoned by a group of people at the prayer ground in his hometown. He was also threatened with death and reported to the police for blasphemy against the Prophet Mohammed. Z reported being mistreated and imprisoned due to his religious beliefs.
Rejection by German Authorities and Legal Dispute
Despite these accounts, the German authorities rejected the asylum applications of Y and Z, arguing that the restrictions on public religious practice for Ahmadis in Pakistan did not constitute persecution relevant to asylum law. Y and Z then filed a lawsuit with the Federal Administrative Court. During this legal dispute, the Federal Administrative Court referred the question to the European Court of Justice (ECJ) regarding the circumstances under which restrictions on religious practice constitute persecution justifying the recognition of refugee status.
Decision of the European Court of Justice
The ECJ ruled that refugee status must be granted whenever it is established that the refugee, upon returning to their country of origin, would perform religious acts that would expose them to the real risk of persecution. The national authorities cannot require the applicant to refrain from certain expressions or practices of their faith to avoid persecution. According to the ECJ, a serious violation of the right to freedom of religion includes not only restrictions on private religious practice but also on public religious practice. The decisive factor is the severity of the measures and sanctions that the affected person would face.
Source: European Court of Justice
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