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CJEU Case C-56/17 / Opinion

Bahtiyar Fathi v Predsedatel na Darzhavna agentsia za bezhantsite

Policy area:
Justice, freedom and security
Deciding Body type:
Court of Justice of the European Union
Deciding Body:
Advocate General
Type:
Opinion
Decision date:
25/07/2018

Key facts of the case:

Reference for a preliminary ruling — Area of freedom, security and justice — Borders, asylum and immigration — Conditions for granting refugee status — Criteria for determining the Member State responsible for examining an application for international protection — Examination of an application for international protection without an explicit decision on the competence of the Member State — Concept of religion — Assessment of reasons for persecution based on religion.

Outcome of the case:

 

On the basis of all the foregoing considerations, I propose that the questions referred by the Administrativen sad Sofia-Grad (Administrative Court, Sofia, Bulgaria) for a preliminary ruling be answered as follows:

  1. Regulation (EU) No 604/2013 of the European Parliament and of the Council of 26 June 2013 establishing the criteria and mechanisms for determining the Member State responsible for examining an application for international protection lodged in one of the Member States by a third-country national or a stateless person must be interpreted to the effect that a Member State examining the substance of an application for international protection made to it does not first have to adopt a formal decision by which it acknowledges its responsibility under Regulation No 604/2013 to conduct such an examination. That Member State must, however, pursuant to Article 4(1) of that regulation, inform the applicant, in accordance with the rules laid down in paragraph 2 of that article, that his application will be examined by the competent authorities of that Member State and state the reasons that led it to find that it is responsible under that regulation.
  2. In a situation such as that in the main proceedings, in which the Member State that examined an application brought before it for international protection within the meaning of Article 2(b) of the Regulation No 604/2013 has not adopted an explicit decision regarding its responsibility under that regulation to rule on that application, and where it is apparent that that Member State has not applied the discretionary clause provided for in Article 17(1) of that regulation, it is not for the national court before which an action is brought to challenge the rejection of that application to ascertain, of its own motion, whether that regulation applies to the applicant.
  3. Article 10(1)(b) and Article 10(2) of Directive 2011/95 of the European Parliament and of the Council of 13 December 2011 on standards for the qualification of third-country nationals or stateless persons as beneficiaries of international protection, for a uniform status for refugees or for persons eligible for subsidiary protection, and for the content of the protection granted are to be interpreted as meaning that an applicant for international protection who in support of his application relies on a risk of persecution for reasons associated with religion does not have to submit statements or produce documents covering all the components of the concept of religion, as defined in Article 10(1)(b) of Directive 2011/95, in order to substantiate his claims regarding his religious beliefs. In particular, such an applicant does not necessarily have to demonstrate the public performance of acts linked to those beliefs or mandated by them or the abstention from acts incompatible with those beliefs, or prove — backed by documentary evidence — the veracity of his claims in that regard, under penalty of his application being rejected.
  4. The existence of persecution, within the meaning of Article 9 of Directive 2011/95, based on religious grounds is dependent, first, on the severity of the interference with the freedom of religion of the applicant for asylum and, second, on the seriousness of the acts to which that applicant is exposed by virtue of exercising that freedom in his country of origin. The fact that the restrictions on religious freedom imposed in the applicant’s country of origin, as well as the penalties provided for if the prohibitions linked to such restrictions are infringed, are justified by the requirement of maintaining law and order or public security, health or morality in that country does not mean that the existence of persecution within the meaning of Article 9 of Directive 2011/95 may be ruled out automatically. The fact that the law of the country of origin of the applicant for asylum punishes conduct linked to the exercise of the freedom of religion, such as a religious conversion or religious proselytism, by imposing disproportionate or discriminatory penalties, or even by the death penalty, is enough to find there to be persecution within the meaning of Article 9 of Directive 2011/95 if it is shown that such penalties are actually applied and that the applicant runs a proven risk of being subject to them should he return to that country.