EHRM, 23-03-2016, nr. 43611/11

The applicant was born in 1962 and lives in Sweden.

He entered Sweden on 16 November 2009 and applied for political asylum.

On 19 February 2010, counsel appointed the applicant made written submissions to the Migration Board (Migrationsverket) in which he developed the grounds for the applicant's request for political asylum.

On 24 March 2010 the Migration Board held an oral interview with the applicant in the presence of his counsel and an interpreter. The applicant handed over a declaration of 15 March 2010 from a pastor in Sweden certifying that the applicant had been a member of his congregation since December 2009 and had been baptised. The Migration Board official therefore started the interview by asking about that matter. The applicant replied that it was a private matter ‘in [his] heart’, adding: ‘It has nothing to do with this but if you want to ask questions you may. All problems in my home country are caused by Islam entering Iran …’. The Migration Board official explained that the reason why he was asking questions about it was that he had interpreted the certificate as though the applicant had relied on his conversion as a ground for asylum. The applicant stated: ‘no, it is not something I want to rely on. It is something private’. The Migration Board official then suggested a break in the interview in order for the applicant and his counsel to confer. After a ten-minute break, counsel stated: ‘the applicant wants to underline that he has not changed religion in order to enhance his chances of getting a residence permit but out of personal conviction’. When asked when he had converted, the applicant replied that this had happened after he had arrived in the Swedish town of X, where there were not many Iranians. He had got to know a person who went to church four times a week. This person knew that the applicant hated Islam. The applicant continued: ‘I do not regard Christianity as a religion’. When asked why that was so, the applicant replied: ‘if regarded as a religion it would be like Islam, but Christianity is about a kind of love you have for God’. He explained that he had been going to the congregation's gatherings two to four times per week and that he read the Bible. The applicant gave examples of miracles and prophecies from the Bible which had attracted him to Christianity. The Migration Board official asked why, if the applicant did not wish to rely on his conversion as a ground for asylum, he had nevertheless handed in the certificate from the pastor, to which the applicant replied: ‘I don't know. I never asked for it and I had not even considered handing it in, but you wanted it. They gave all converts a certificate like that’.

The rest of the interview dealt with the applicant's political past. The applicant explained that in Iran he had worked with persons connected to different universities who were known to oppose the regime. He had mainly worked on creating and publishing web pages. He and one of the other persons had been arrested in April 2007. He had been released after 24 hours and then hospitalised for ten days due to high blood pressure.

Before the elections on 12 June 2009, the applicant had worked with the Green Movement, who had supported Mousavi for the presidential position, by spreading their message via the Internet. The day before the elections, he and his friends had been arrested, questioned and detained in the polling station overnight.

After the elections, the applicant had participated in demonstrations and other activities. He had been arrested once again in September 2009 and imprisoned for twenty days. He had been ill-treated in prison. In October 2009 he had been taken before the Revolutionary Court, which had released him after a day on condition that he cooperate with the authorities and spy on his friends. He had agreed to the demands and given his business premises as a guarantee. He had also assured them that he would not participate in any demonstrations and that he would respond to their summons. Following his release in a park, he had found that his business premises had been searched. He had kept politically sensitive material there, which the authorities must have noticed, and his passport and other documents were missing.

Subsequently, the applicant was summoned to appear on 2 November 2009 before the Revolutionary Court. He had contacted a friend who, in turn, had obtained the help of a smuggler to enable him to leave the country. The applicant submitted a summons from the Revolutionary Court dated 21 October 2009 stating that he should present himself at Evin prison in Teheran on 2 November 2009.

The interview before the Migration Board lasted approximately two hours and the record was subsequently sent to the applicant and his counsel for comment. Counsel commented that the applicant had not read the certificate from the congregation's pastor before the interview as it had not been translated and that the applicant intended to submit the formal baptism certificate.

On 29 April 2010 the Migration Board rejected the applicant's request for asylum. By way of introduction, it stated that while the applicant had not proven his identity or citizenship he had established the probability thereof.

As regards the request for political asylum, the Migration Board held that participation in demonstrations or affiliation with the Green Movement could not, of itself, give rise to a risk of persecution, ill-treatment or punishment on his return to Iran. The Migration Board noted that the applicant had changed his story in some parts during the proceedings, and in particular, he had changed his statements concerning the number of times he had been arrested. Furthermore, he had not been able to name the park where he had been released in October 2009. Thus, the Migration Board found reason to question whether he had been arrested at all. The Migration Board further considered that the applicant's political activities had been limited. After the questioning in 2007 and until the elections in 2009, he had been able to continue working with the web pages that contained the critical material, even though, according to the applicant, already at that time the authorities had been aware of his activities. For these reasons, the Migration Board found that the applicant could not have been of interest to the authorities on account of his activities or the material he had in his possession.

As to the applicant's conversion to Christianity, the Migration Board noted that the conversion and baptism had not taken place in the Church of Sweden and that the applicant had not handed in any proof of his baptism. The certificate from the congregation's pastor could be regarded only as a plea to the Migration Board that the applicant should be granted asylum. The applicant had not initially wished to invoke his conversion as a ground for asylum and had stated that his new faith was a private matter. To pursue his faith in private was not found to be a plausible reason for believing that he would risk persecution upon return. In conclusion, the Migration Board found that the applicant had not shown that he was in need of protection in Sweden.

The applicant appealed to the Migration Court (Migrationsdomstolen), maintaining his claims and relying on both political and religious grounds for asylum. As regards the latter he handed in a baptism certificate of 31 January 2010. He reacted against the decision by the Migration Board, which in his view implied that a conversion within a ‘free church’ was of less relevance than if it had been within the Church of Sweden. He explained that the reason why he had not initially wished to rely on his conversion was that he did not want to trivialise the seriousness of his beliefs.

On 16 February 2011 the Migration Court held an oral hearing in the presence of the applicant, his counsel, an interpreter and a representative of the Migration Board.

The Migration Board did not question the fact that the applicant, at the time, professed the Christian faith, but found that this, by itself, was not enough to consider him in need of protection. It referred to the British Home Office's operational guidance note of January 2009.

The applicant stated that he did not wish to rely on his conversion as a reason for asylum but considered it something personal. He added that ‘it would, however, obviously cause [him] problems upon return’.

In respect of his political past he explained, inter alia, that he had had contact with the student movement and quite a lot of students and had helped them with their home pages. His computer had been taken from his business premises while he was in prison. Material that was critical of the regime was stored on his computer. While he had not personally criticised the regime, or President Ahmadinejad, or the highest leaders, the applicant had visited some websites and had received cartoons via e-mail. Therefore, in his view, there was enough evidence to prove that he was an opponent of the system. It was much the same as the material he had had on his computer in 2007.

The summons to appear before the Revolutionary Court on 2 November 2009 was also submitted to the Migration Court. The applicant explained that the summons had been served at his home and that his sister had brought it to him. He had left the summons with a friend when he left Iran. Subsequently, the said friend had sent it to another friend, who was going to Ukraine, and who had made sure that the summons was sent to the applicant in Sweden. He had not been summoned again and his family had not been targeted. Something might have happened, though, that his family did not wish to burden him with.

On 9 March 2011 the Migration Court rejected the appeal. It observed that the applicant was no longer relying on his religious views as a ground for persecution and it did not refer further to this issue in its conclusions.

The Migration Court found that the applicant's story in support of his request for political asylum had been coherent and trustworthy on the most essential points. It found that the uncertainties that had been pointed out by the Migration Board had been satisfactorily explained. However, as regards the summons to appear before the Revolutionary Court, the Migration Court found, regardless of the authenticity of the document, that it could not by itself substantiate a need for protection. The Migration Court pointed out in this respect that the document was merely a summons and that no reason had been given as to why the applicant should present himself at Evin prison. Moreover, the information concerning the applicant's political activities had generally been vague and lacking in detail. The applicant had only stated that he had participated in the campaign for the opposition before the elections in 2009 by joining demonstrations and having contact with the student movement and students in order to help them with their web pages. Furthermore, the applicant had stated that the material he had had in his possession when he was questioned in 2007 had not differed from the material he had in 2009. These circumstances, together with the fact that he had not been summoned again to appear before the Revolutionary Court after November 2009 and that his family had not been targeted, made the Migration Court doubt that his political activities had been of such a nature and extent as to have resulted in the consequences alleged. The Migration Court found that the applicant had exaggerated the importance of his political activities and their consequences and therefore also the authorities’ interest in him. For these reasons, it considered that the applicant had not made out that the Iranian authorities had a special interest in him and that therefore he was in need of protection.

On 30 March and 19 April 2011 the applicant requested leave to appeal to the Migration Court of Appeal (Migrationsöverdomstolen). He maintained his need for political asylum. He also alleged that before the Migration Court he had relied on his conversion. He submitted that the latter issue had been sensitive for him, that he had considered it a private matter and that had not wanted to tarnish the seriousness of his belief. This was the reason why he, in response to a direct question by the Migration Court, had stated that he was no longer relying on his conversion as a ground for asylum. After the oral hearing before the Migration Court he had become a member of another Christian congregation and had taken part in an initiation ceremony broadcast on the Internet. His fear that his conversion had become known to the Iranian authorities had therefore increased. He enclosed a letter of 13 April 2011 from his new congregation which supported his explanation. In particular, it stated that the applicant had converted shortly after his arrival in Sweden, that he had shown with honest intent and interest that he was willing to learn more about Christianity, and that he took part in church services, prayer meetings and social activities. It also stated that he became a member of the congregation in February 2011 and that his Christian beliefs were no longer private as the services he attended were broadcast on the Internet.

On 8 June 2011 the Migration Court of Appeal refused the applicant's request for leave to appeal. The removal order thus became enforceable.

On 6 July 2011 the applicant requested the Migration Board to stay the enforcement of his expulsion and to reconsider its previous decision in the light of new circumstances. He stated, inter alia, that the act of conversion from Islam to another religion was a taboo and punishable by death in Iran. The applicant submitted the above-mentioned letter of 13 April 2011 from his new congregation.

On 13 September 2011 the Migration Board refused to re-examine the applicant's request for asylum based on his conversion. The Migration Board noted that in the original asylum proceedings the applicant had stated that he had been baptised and had converted to Christianity. He had also stated that his conversion was a personal matter which he did not wish to rely on as a ground for asylum. The Migration Board found it noteworthy that the applicant now raised the question of conversion, when he had been given the chance to elaborate on it during the oral hearing before the Migration Court but had declined to do so. It thus concluded that the applicant's conversion could not be regarded as a new circumstance, which was a precondition for the Migration Board to re-examine the request.

The applicant appealed against the decision to the Migration Court, maintaining his claims. He submitted that since he had not previously relied on his conversion, it should be regarded as a new circumstance.

On 6 October 2011 the Migration Court rejected the appeal. It observed that the authorities had already been aware of the applicant's conversion in the original proceeding leading to the decision to expel him. Therefore, the conversion could not be considered as a ‘new circumstance’. The fact that the applicant had previously chosen not to rely on his conversion as a ground for asylum did not change the court's assessment in this regard.

The applicant's request for leave to appeal was refused by the Migration Court of Appeal on 22 November 2011.

Since under Chapter 12, section 22 of the Aliens Act, the validity of a deportation order expires four years after the date on which it acquired legal force, in the present case the deportation at issue expired on 8 June 2015.

The relevant provisions concerning the right of aliens to enter and to remain in Sweden are laid down in the Aliens Act (Utlänningslagen, 2005:716), as amended on 1 January 2010.

Chapter 5, section 1, of the Aliens Act stipulates than an alien who is considered to be a refugee or otherwise in need of protection is, with certain exceptions, entitled to a residence permit in Sweden. According to Chapter 4, section 1, of the Aliens Act, the term ‘refugee’ refers to an alien who is outside the country of his or her nationality owing to a well-founded fear of being persecuted on grounds of race, nationality, religious or political beliefs, or on grounds of gender, sexual orientation or other membership of a particular social group and who is unable or, owing to such fear, is unwilling to avail himself or herself of the protection of that country. This applies irrespective of whether the persecution is at the hands of the authorities of the country or if those authorities cannot be expected to offer protection against persecution by private individuals. By ‘an alien otherwise in need of protection’ is meant, inter alia, a person who has left the country of his or her nationality because of a well-founded fear of being sentenced to death or receiving corporal punishment, or of being subjected to torture or other inhuman or degrading treatment or punishment (see Chapter 4, section 2, of the Aliens Act).

Moreover, if a residence permit cannot be granted on the above grounds, such a permit may be issued to an alien if, after an overall assessment of his or her situation, there are such particularly distressing circumstances (synnerligen ömmande omständigheter) as to allow him or her to remain in Sweden (see Chapter 5, section 6, of the Aliens Act).

As regards the enforcement of a deportation or removal order, account has to be taken of the risk of capital punishment or torture and other inhuman or degrading treatment or punishment. According to a special provision on impediments to enforcement, an alien must not be sent to a country where there are reasonable grounds for believing that he or she would be in danger of suffering capital or corporal punishment or of being subjected to torture or other inhuman or degrading treatment or punishment (see Chapter 12, section 1, of the Aliens Act). In addition, an alien must not, in principle, be sent to a country where he or she risks persecution (see Chapter 12, section 2, of the Aliens Act).

Under certain conditions, an alien may be granted a residence permit even if a deportation or removal order has gained legal force. This applies, under Chapter 12, section 18, of the Aliens Act, where new circumstances have emerged that mean there are reasonable grounds for believing, inter alia, that enforcement would put the alien in danger of being subjected to capital or corporal punishment, torture or other inhuman or degrading treatment or punishment, or there are medical or other special reasons why the order should not be enforced.

If a residence permit cannot be granted under Chapter 12, section 18, of the Aliens Act, the Migration Board may instead decide to re-examine the matter. Such re-examination is to be carried out where it may be assumed, on the basis of new circumstances invoked by the alien, that there are lasting impediments to enforcement of the nature referred to in Chapter 12, sections 1 and 2, of the Aliens Act, and that these circumstances could not have been invoked previously, or the alien shows that he or she has a valid excuse for not doing so. Should the applicable conditions not be met, the Migration Board will decide not to grant re-examination (see Chapter 12, section 19, of the Aliens Act).

Under the Aliens Act, matters concerning the right of aliens to enter and remain in Sweden are dealt with by three bodies: the Migration Board, the Migration Court and the Migration Court of Appeal. However, no appeal lies against a decision by the Migration Board not to grant a residence permit under Chapter 12, section 18, of the Aliens Act (see, a contrario, Chapter 14 of the Aliens Act). According to Chapter 16, section 11 of the Aliens Act leave to appeal is a condition for a case to be tried on the merits by the Migration Court of Appeal. Leave to appeal is granted if it is of importance for the guidance of the application of law that the Migrations Court of Appeal considers the appeal or there are extraordinary reasons for such a consideration.

Pursuant to Chapter 12, section 22, of the Aliens Act, the validity of a deportation order, which has not been issued by a general court (i.e. not as a consequence of a criminal conviction), expires four years after the date on which it acquired legal force. When a deportation order thus becomes statute-barred, the alien may apply anew for asylum and a residence permit. A new application entails a full examination by the Migration Board of the reasons put forward by the alien and the Board's decision may, if negative, be appealed against to the Migration Court and the Migration Court of Appeal in accordance with the rules pertaining to the ordinary proceedings concerning asylum and residence permits. An appeal against a negative decision by the Board has suspensive effect and the alien may accordingly not be expelled while the proceedings are pending.

On 30 November 2011 the Swedish Migration Court of Appeal delivered a judgment (MIG 5 (25), 2011:29) ruling on the assessment of the risk of persecution in cases of sur place conversion. It held that when assessing whether an alien had plausibly demonstrated that his or her conversion from one religion to another was genuine in the sense that it was based on a genuine personal religious conviction, an individual assessment should be made in accordance with the UNHCR Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention, on the 1967 Protocol relating to the Status of Refugees (hereinafter ‘the UNHCR handbook’) and the UNHCR Guidelines on International Protection regarding Religion-Based Refugee Claims (hereinafter ‘the UNHCR Guidelines’). An overall assessment should be made based on the circumstances in which the conversion took place and whether the claimant could be expected to live as a convert upon returning to his or her home country. Furthermore, in the case of individuals who had converted after having left their country of origin (conversion sur place), the credibility issue required particular attention. In a case where conversion was invoked shortly after the decision to expel the claimant became final and non-appealable, particular attention should be paid to the credibility of the statements made concerning the conversion. A complainant whose conversion was not deemed to have been based on genuine conviction had not plausibly demonstrated that, upon returning to his or her country of origin, he or she had the intention of living there as a convert and consequently attracting the interest of the authorities or individuals.

On 12 November 2012 the Director General for Legal Affairs at the Swedish Migration Board issued a ‘general legal position’ concerning religion as grounds for asylum, including conversion (Rättsligt ställningstagande angående religion som asylskäl inklusive konvertering, RCI 26/2012). It was based on the above-mentioned judgment by the Migration Court of Appeal (MIG 5 (25) 2011:29), the UNHCR Guidelines and the judgment of 5 September 2012 of the Court of Justice of the European Union in the case of Bundesrepublik Deutschland v. Y (C-71/11) and Z (C-99/11) (see § 50 below). According to the legal position, the credibility of a conversion must be carefully assessed in order to determine whether a genuine conversion has taken place; a person whose conversion is not based on genuine conviction will most likely not practise his or her new religion upon returning to his or her country of origin. Furthermore, if the complainant is not credible, an assessment must be made of whether adherence to the new religion is attributed to the individual upon return to his or her country of origin. In this assessment it is relevant to consider whether the conversion may have or will come to the attention of the authorities or any other actor which could constitute a threat. Finally, a person who has undergone a genuine change in his or her faith or who risks being attributed a new religious belief and who therefore risks persecution should not be compelled to hide his or her faith solely in order to avoid persecution.

On 10 June 2013 the Director General for Legal Affairs at the Swedish Migration Board issued a ‘general legal position’ concerning the methodology for assessing the reliability and credibility of applications for international protection (Rättsligt ställningstagande angående metod för prövningen av tillförlitlighet och trovärdighet, RCI 09/2013), which was based on, inter alia, the assessment by the UNHCR in its report ‘Beyond Proof; Credibility Assessment in EU Asylum Systems’, of May 2013. It sets out that it is the duty of the applicant to submit all relevant elements needed to substantiate his or her application for international protection, and that the initial burden of proof rests on the applicant. However, responsibility for the assessment of an application for international protection lies jointly with the applicant and the examining authority. Furthermore, it also follows from the legal position that the evidence in an asylum case consists not only of the applicant's statements but also of supporting evidence, such as documents, testimony and country information.

Council Directive 2004/83/EC of 29 April 2004 on minimum standards for the qualification and status of third country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted (the Qualification Directive), replaced by Council Directive 2011/95/EU 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, which applies from 9 January 2012, provided, in so far as relevant, as follows:

Article 4: Assessment of facts and circumstances

Article 5: International protection needs arisingsur place

Article 9: Acts of persecution

Article 10: Reasons for persecution

Council Directive 2005/85/EC of 1 December 2005 (the Asylum Procedures Directive) on minimum standards on procedures in Member States for granting and withdrawing refugee status, was replaced by Directive 2013/32/EU of the European Parliament and of the Council of 26 June 2013 on common procedures for granting and withdrawing international protection, which applies from 19 July 2013. The former, stipulated, inter alia, as follows:

CHAPTER III: PROCEDURES AT FIRST INSTANCE

SECTION II

Article 25: Inadmissible applications

SECTION IV

Article 32: Subsequent application

CHAPTER V: APPEALS PROCEDURES

Article 39: The right to an effective remedy

On 5 September 2012 the Grand Chamber of the Court of Justice of the European Union (‘the CJEU’) delivered its judgment in the case of Bundesrepublik Deutschland v. Y (C-71/11) and Z (C-99/11). It concerned two asylum-seekers from Pakistan, who claimed that they had been ill-treated because of their membership of the Muslim Ahmadiyya community, an Islamic reformist movement, and for that reason had been forced to leave their country of origin. The German authorities had found that Y and Z were deeply committed to their faith and that their life had been actively shaped by it in Pakistan. They continued to practise their religion in Germany and considered that the public practise of their faith was essential in order for them to preserve their religious identity. The references for a preliminary ruling concerned the interpretation of Articles 2(c) and 9(1)(a) of Council Directive 2004/83/EC of 29 April 2004 on minimum standards for the qualification and status of third country nationals or Stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted. The German Federal Administrative Court (Bundesverwaltungsgericht) had asked the CJEU three questions. First, it was asking to what extent an infringement of freedom of religion, and in particular the right of the individual to live his faith openly and fully, was likely to be an ‘act of persecution’ within the meaning of Article 9(1)(a) of Directive 2004/83/EC. Next, the national court was asking the CJEU whether the concept of an act of persecution was to be restricted to infringements affecting only what was referred to as a ‘core area’ of freedom of religion. Finally, it was asking the CJEU whether a refugee's fear of persecution was well-founded within the meaning of Article 2(c) of Directive 2004/83/EC where the refugee intended, on his return to his country of origin, to perform religious acts which would expose him to danger to his life, his freedom or his integrity or whether it was, on the contrary, reasonable to expect that person to give up the practice of such acts. In its conclusion CJEU held as follows:

On 2 December 2014 the Grand Chamber of the CJEU delivered its judgment in the case of A (C-148/13), B (C-149/13), C (C-150/13) v. Staatssecretaris van Veiligheid en Justitie. It concerned third country nationals who had lodged an application for asylum in the Netherlands because they feared persecution in their respective countries of origin on account, in particular, of their homosexuality. The Dutch Council of State (Raad van State) requested a preliminary ruling concerning the interpretation of Article 4 of Council Directive 2004/83/EC of 29 April 2004 as to whether EU law limited the actions of Member States when assessing requests for asylum made by an applicant who feared persecution in his country of origin on grounds of sexual orientation. In its conclusion, the CJEU held as follows:

On 28 April 2004 the UNCHR issued Guidelines on International Protection regarding Religion-Based Refugee Claims, which under the heading, ‘Substantive Analysis, A. defining ‘religion’ stated, inter alia:

According to the guidelines, religious belief, identity or way of life is considered as so fundamental to human identity that one should not be compelled to hide, change or renounce it in order to avoid persecution. Restrictions on the freedom to manifest one's religion or belief are permitted if these limits are prescribed by law and are necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others. Even though discrimination for reasons of religion is prohibited under international human rights law, all discrimination does not necessarily rise to the level required for recognition of refugee status. Furthermore, where individuals convert after their departure from the country of origin, this may have the effect of creating a sur place claim. In such situations, particular credibility concerns tend to arise and a rigorous and in-depth examination of the circumstances and genuineness of the conversion will be necessary. Issues which need to be assessed include the nature of and connection between any religious convictions held in the country of origin and those now held, any disaffection with the religion held in the country of origin, for instance, because of its position on gender issues or sexual orientation, how the claimant came to know about the new religion in the country of asylum, his or her experience of this religion, his or her mental state and the existence of corroborating evidence regarding involvement in and membership of the new religion. So-called ‘self-serving’ activities do not create a well-founded fear of persecution on a Convention ground in the claimant's country of origin, if the opportunistic nature of such activities will be apparent to all, including the authorities there, and serious adverse consequences would not result if the person were returned.

The UNCHR has also published a handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention on the 1967 Protocol relating to the Status of Refugees (the UNHCR handbook). Paragraph 67 of the handbook states as follows:

Of relevance also is the UNHCR report ‘Beyond Proof: Credibility Assessment in EU Asylum Systems’ of May 2013.

The US Supreme Court judgments, United States v. Steeger, 380 U.S. 163 (1965) and Welsh v. United States 15 June 1970, concerned conscientious objectors and the ‘test of religious belief’ provided by the US Supreme Court under § 6(j) of the Universal Military training and Service Act. In the former judgment the Supreme Court ruled that the test of religious belief under § 6(j) is whether it is a sincere and meaningful belief occupying in the life of its possessor a place parallel to that filled by the God of those admittedly qualified for the exemption. Thus conscientious objector status was not reserved to individuals of a traditional religious background. In the latter judgment, the Supreme Court found that although Welsh denied any religious foundation for his beliefs, whereas Seeger had characterized his pacifist beliefs as ‘religious,’ Welsh's conviction was nevertheless valid. More specifically it stated, among other things:

The Court made it clear [in Steeger] that these sincere and meaningful beliefs that prompt the registrant's objection to all wars need not be confined in either source or content to traditional or parochial concepts of religion. It held that § 6(j) ‘does not distinguish between externally and internally derived beliefs,’id. at 186, and also held that ‘intensely personal’ convictions which some might find ‘incomprehensible’ or ‘incorrect’ come within the meaning of ‘religious belief’ in the Act. Id. at 184–185. What is necessary under Seeger for a registrant's conscientious objection to all war to be ‘religious’ within the meaning of § 6(j) is that this opposition to war stem from the registrant's moral, ethical, or religious beliefs about what is right and wrong and that these beliefs be held with the strength of traditional religious convictions. Most of the great religions of today and of the past have embodied the idea of a Supreme Being or a Supreme Reality — a God — who communicates to man in some way a consciousness of what is right and should be done, of what is wrong and therefore should be shunned. If an individual deeply and sincerely holds beliefs that are purely ethical or moral in source and content, but that nevertheless impose upon him a duty of conscience to refrain from participating in any war at any time, those beliefs certainly occupy in the life of that individual ‘a place parallel to that filled by … God’ in traditionally religious persons. Because his beliefs function as a religion in his life, such an individual is as much entitled to a ‘religious’ conscientious objector exemption under § 6(j) as is someone who derives his conscientious opposition to war from traditional religious convictions.

The relevant background material includes the United Kingdom Home Office's ‘Iran, Country of Origin Information (COI) Report’ of 26 September 2013 describing, among other things, the ‘History and Recent Developments’ (chapters 3 and 4), ‘Summonses’ (chapter 11.53) and the ‘Green Movement’ (chapter 15.49). Of interest also is the UN Special Rapporteur's report on the situation of human rights in the Islamic Republic of Iran of 13 March 2014, and the UK Foreign and Commonwealth Office's report, ‘Iran, Country of Concern’ of 10 April 2014.

Just after the elections in Iran on 12 June 2009, the Political Affairs Committee of the Parliamentary Assembly of the Council of Europe (PACE) on 1 October 2009 adopted a declaration in which it considered the violent reactions of the Iranian authorities to peaceful protests to be a serious breach of Iranian citizens' human rights. It also called upon governments of other countries not to expel Iranian citizens to Iran. Furthermore, the United States Department of State's 2010 Human Rights Report on Iran, in Section 2 ‘Freedom of Speech and Press/Internet Freedom’ (8 April 2011) noted:

The UK Home Office's Operational Guidance Note on Iran, dated November 2011, stated the following: ‘3.7.11 … There is a real risk that high profile activists and political opponents who have come to the attention of the authorities would on return to Iran face a real risk of persecution and should be granted asylum for reason of his or her political opinion’.

The Danish Immigration Service's ‘Update on the Situation for Christian Converts in Iran’, June 2014, stated, inter alia, as follows:

The United Kingdom Home Office's, ‘Iran, Country of Origin Information (COI) Report’ of 26 September 2013, stated, inter alia:

Religious demography

…

Proposed law on apostasy

…

Prosecution of apostates

…

Christians

Muslim converts to Christianity

…

…

The applicant complained that owing to his political past in Iran and his conversion from Islam to Christianity in Sweden it would be in breach of Articles 2 and 3 of the Convention to expel him to Iran. Those provisions read as follows:

Article 2

Article 3

Article 41 of the Convention provides:

When assessing a risk at the individual level in an asylum case the circumstances to be considered can be of a more or less general nature. As regards Muslims who have converted to Christianity in Iran, country reports show that there are risks in certain situations. However for a convert who keeps a low profile, in the sense that he is not proselytising or does not manifest his Christianity in a political context, but attends home services and keeps religious materials in the home, there is not normally a risk of ill-treatment of a degree or nature sufficient to engage Articles 2 and 3. The applicant's initial unwillingness to rely on his conversion to Christianity meant that he was de facto treated in the same way as would be any former Muslim who relies on a ‘low profile’ practice of Christianity.

A basic principle developed in the Court's case-law for assessing a risk that leads to a prohibition of expulsion is that it is for the applicant to adduce evidence capable of proving that there are substantial grounds for believing that he would be exposed to a real risk of ill-treatment. According to UNHCR principles, although the burden of proof generally rests on the person making the assertion, there is a shared duty between the applicant and the examiner to ascertain and evaluate all the relevant facts (see paragraph 109 of the judgment). I subscribe to this view.

There are two explanations as to why the applicant did not invoke his conversion in the first set of proceedings before the Migration Board and the Migration Court. (As regards the appeal to the Migration Court of Appeal, it is reiterated that that court functions mainly as a body for development of jurisprudence and did not deal with the case on the merits.) Apart from the possibility that the conversion was not genuine at the time when his asylum request was assessed — which I do not suggest —, the applicant either did not understand the severity of the danger of his conversion and the way he planned to practise his new religion, or he did not intend to practise it in any way that would pose a danger to him in Iran.

The question is what danger the applicant should have been aware of at the time of the proceedings at national level, and subsequently what danger the authorities were supposed to assess. In this respect a distinction must be made between a person who has fled his or her country on account of persecution on religious grounds and a person, like the applicant, who has converted sur place. In the latter situation it is not only the applicant who has to imagine what his situation may be upon return, on the basis of his foreseen religious activities, but the national authorities must also try and assess, not difficulties already experienced, but those which can be expected. It should be noted that the CJEU case of Germany v. Y and Z (see paragraph 50 of the judgment) did not concern sur place conversions but an assessment of future risks pertaining to persons who allegedly had already been victims of persecution on the basis of their religious beliefs and practices. That case did not deal with the procedural requirements of the national authorities. In contrast, the CJEU in the A, B, C case (see paragraph 51 of the judgment) disapproved of the practice of carrying out detailed questioning as to the sexual practices of persons seeking asylum on the ground of risks of persecution based on their homosexuality, and found that a lack of credibility could not be concluded merely because an applicant for asylum did not rely on his declared sexual orientation on the first occasion he was given to set out the ground for persecution. However, in my opinion, that case cannot be compared to the case at hand. A person's sexual affiliation may be a most sensitive and intimate aspect of an individual's life and the CJEU recognises that it may be difficult to bring such an issue out in public or in front of an authority's decision makers. That is not the situation in our case, where the applicant from the very beginning of his conversion was attending public meetings and services in Swedish churches. Furthermore, in the present case the applicant's credibility is not an issue, but rather his vagueness in respect of his intended future practice of a new-found religion and the Swedish authorities' lack of automatic investigation in this respect.

The applicant did not explain, either before the Migration Board or in any of the national courts, how he intended to observe his new-found religion in Iran. He never mentioned that he intended to proselytise or publish Christian texts. The applicant has, since his application was first brought to the Court, claimed that he intends to practise his new faith in an extrovert manner. Whether this applied also at any time while his asylum application was being dealt with in the first set of proceedings by the Swedish authorities is simply not known, because he did not explain this. The fact that he mentioned in the Migration Court that the conversion would be problematic upon his return to Iran is of course something that the court could have elaborated upon, but as we have seen there could be other explanations for this. It is clear from what his counsel replied at the hearing before the Grand Chamber that the applicant would encounter problems with his family and friends in Iran, who would not accept his conversion, and that he would therefore suffer socially from the conversion for these reasons. Such consequences, however, are not a ground for asylum.

The applicant had lived most of his life in Iran, was experienced in use of the internet and spoke English. Furthermore he was represented throughout the asylum proceedings by legal counsel. The applicant discussed the conversion issue with counsel on several occasions beginning at the stage of the initial interviews before the Migration Board. It is thus difficult to imagine that the applicant, being advised by counsel, was in any way precluded from bringing any relevant fact or risk to the attention of the authorities and courts. Furthermore the Migration Board asked him about his conversion (already at the interview of 24 March 2010) and thus actively brought the issue into the case, and he was given opportunity to reflect on it.

It is common knowledge that conversion to Christianity is, in itself, not enough to provoke ill-treatment by the Iranian authorities. There has to be an element of extrovert observance of the faith in order for that to be so. This was most certainly known by the applicant and the Swedish authorities. In Sweden tens of thousands of asylum applications are normally dealt with every year by the Migration Board, and the four Migration Courts deal with several thousand asylum cases per year. Officials and judges are specialised in the situation in particular countries, including Iran.

Bearing in mind the specific situation of the applicant, in particular his knowledge of the situation in his home country, the legal assistance he was provided with and also the low-level risk for converts who practise Christianity discreetly, it would in my opinion be reasonable to expect of the applicant that he should at least mention that he is intending to observe his new-found faith in an extrovert and therefore dangerous manner. Had the applicant adduced this circumstance, it would have been up to the authorities to investigate how it would affect the risk assessment and to evaluate these facts. This, in my opinion, is how far the UNHCR principle on shared duty would go in a situation such as the present one. Consequently I am not convinced that the Swedish authorities failed in their obligation to carry out an assessment of relevant facts or risks in the original asylum proceedings.

The question is whether there were circumstances, such as developments as regards his observance of his new religion, which called for a second fresh assessment of the applicant's asylum claim on the basis of his conversion. In the second set of proceedings it would have been vital to assess whether there had been a development in the manner in which the applicant might be expected to observe his new-found religion in Iran, just as any other sur place activities should be assessed. The applicant did not himself give any further explanation in the second set of proceedings as regards the manner in which he foresaw how he would practise his new religion in Iran; he gave no account of any activity beyond the low-profile practice that is generally accepted in that country. It is therefore not surprising that the applicant was considered not to have invoked new circumstances in this regard and I am therefore not able to conclude that the Swedish authorities failed in their obligations as regards the second set of proceedings.

However, the applicant has brought new material before the Court in which he explains how he will practise his religion in Iran if expelled. The circumstances presented to the Court are of a kind that may reveal a risk of ill-treatment and should therefore be taken into account by the Swedish authorities before any new decision is taken as regards his possible expulsion. For that reason I have voted with the majority for a potential violation of Articles 2 and 3 of the Convention.

Although I have voted with the majority in respect of Articles 2 and 3, I would have preferred to see the application struck out of the Court's list of cases for the following reasons.

Article 37 § 1 of the Convention provides:

According to the Court's established case-law in cases concerning the expulsion of an applicant from a respondent State, once the applicant has been granted a residence permit and no longer risks being expelled from that State, the Court considers the case to have been resolved within the meaning of Article 37 § 1 (b) of the Convention and strikes it out of its list of cases, regardless of whether the applicant agrees (see, inter alia, M.E. v. Sweden (striking out) [GC], no. 71398/12, § 32, 8 April 2015; H v. Norway (dec.) no. 51666/13, 17 February 2015; I.A. v. the Netherlands (dec.), no. 76660/12, 27 May 2014; O.G.O. v. the United Kingdom (dec.), no. 13950/12, 18 February 2014; Isman v. Switzerland (dec.), no. 23604/11, 21 January 2014; M.A. v. Sweden (dec.), no. 28361/12, 19 November 2013; A.G. v. Sweden (dec.), no. 22107/08, 6 December 2011; and Sarwari v. Austria (dec.), no. 21662/10, 3 November 2011). The reason for this is that the Court has consistently approached the issue as one of a potential violation of the Convention, being of the view that the threat of a violation is removed by virtue of the decision granting the applicant a right of residence in the respondent State concerned (see M.E. v. Sweden, cited above, § 33). In cases concerning the expulsion of an applicant from a respondent State where it is clear from the information available that he or she is not, at the moment and for a considerable time to come, at risk of being expelled and subjected to treatment allegedly in breach of Article 3 of the Convention, and the applicant can challenge a future removal decision before the domestic authorities and the Court, the latter has in several cases considered that it is no longer justified to continue the examination of the case and that it must be struck out of its list of cases by virtue of Article 37 § 1 (c) of the Convention (see, among others, I.A. v. the Netherlands, no. 76660/12, 27 May 2014; mutatis mutandis, under Article 8, Atayeva and Burman v. Sweden (striking out), no. 17471/11, §§ 19–24, 31 October 2013; P.Z. and Others v. Sweden (striking out), no. 68194/10, §§ 14–17, 18 December 2012; and B.Z. v. Sweden (striking out), no. 74352/11, §§ 17-20, 18 December 2012). In all these cases the Court found that there were no special circumstances regarding respect for human rights, as defined in the Convention and its Protocols, which required the continued examination of the case (Article 37 § 1 in fine).

The present judgment has been delivered well over four years after the final decision at domestic level and after the removal order expired. The order thus cannot be enforced. The applicant may institute new and full proceedings for asylum explaining how his extrovert religious practice will lead to ill-treatment in Iran, and his claims will be examined on the merits by the Migration Board and, in the event of appeal, by a court. Indeed, the applicant has stated that if the Court discontinues the examination of the case, he will submit a fresh application for asylum and rely on his conversion to Christianity as one ground. The applicant is not, at the moment and for a considerable time to come, at risk of being deported to Iran. Should his new asylum request be rejected by the domestic authorities and courts, he will be able to lodge a new application with the Court.

The practical effects of the expiry of the removal order and the finding of a potential violation in the present case are the same, namely that an ex nunc assessment of the consequences of the applicant's conversion will take place. The majority's reasoning does not bring forward any new substantial principles in the Court's case-law. In these circumstances it is no longer justified to continue the examination of the present application and I cannot find any special circumstances regarding respect for human rights, as defined in the Convention and its Protocols, which require the continued examination of the case. Accordingly, it is appropriate to strike the case out of the list pursuant to Article 37 § 1 (c) of the Convention.

Although the validity of the deportation order expired on 8 June 2015, we are of the view that the applicant's victim status remains unaffected, since he has not been granted a residence permit in Sweden, and the result of any new asylum proceedings that he might bring is uncertain. Had the Court discontinued the examination of the applicant's case, the Chamber judgment would have become operative, with the strong possibility of its being regarded uncritically in any future proceedings by the national authorities and courts. In view of the respondent Government's tooth and nail resistance to the applicant's complaints at the level of both the Chamber and the Grand Chamber, the Chamber judgment would have palpably increased the risk of the applicant's deportation in clear violation of his fundamental human rights.

It is undisputed that in the original asylum proceedings, the applicant specifically stated that he did not want to rely on his conversion to Christianity as a ground for asylum. The crux of the case is then whether, since the authorities were aware of the applicant's conversion, they should nevertheless, of their own motion, have carried out an assessment of that risk as well.

We are of the view that the national authorities and courts had an obligation to assess, of their own motion, the applicant's need of international protection in the light of all the circumstances that were known or could have been known to them. The national authorities did not have the choice of not considering a known risk under Article 3, for religious reasons, simply because the asylum seeker did not actively pursue it in the domestic proceedings or did not fully understand the consequences of not formally relying on it as a ground for asylum. Instead, the national authorities preferred to address the applicant's situation as if he had renounced any reliance on the risk resulting from his religious conversion.

We do not accept, as a matter of fact, that the applicant did renounce any reliance on such risk. The file does not provide evidence of any informed and voluntary waiver on the part of the applicant. Furthermore, taking into account the absolute nature of the prohibition of refoulement and the non-derogable rights in Articles 2 and 3 of the Convention, such a waiver, even if it were proven, which was not the case, would not have been a relevant consideration. The national authorities and courts, therefore, had an obligation to consider the risk to the applicant, following his conversion, in the event of his return to Iran. They failed to do this.

In actual fact, the Migration Board noted that the applicant had not initially wished to invoke his conversion as a ground for asylum and had stated that his faith was a private matter and that therefore he was not in need of protection in Sweden5.. Subsequently, the Migration Court did not even refer to this issue, in view of the fact that the applicant was no longer relying on his religious views as a ground for persecution6.. In spite of the applicant's explicit argument based on the risk resulting from his religious beliefs, as used in his request for leave to appeal to the Migration Court of Appeal, the appellate court ignored the argument and refused the applicant's request for leave to appeal7.. Later on, when seeking the re-examination of his case, the applicant insisted on the danger to life, attendant upon conversion from Islam to another religion, that he would face in Iran8.. Again the Migration Board dug in its heels and stated that the applicant had initially given up the idea of invoking his new religious beliefs and that he was therefore precluded from raising the issue as if it were a new circumstance9..

The Migration Board's position, which was confirmed by the Migration Court and the Migration Court of Appeal10., was subsequently rejected by the 2013 ‘general legal position’ of the Director General for Legal Affairs at the Swedish Migration Board concerning the methodology for assessing the reliability and credibility of applications for international protection. This document in effect provides that the initial burden of proof rests on the applicant, stressing at the same time that the responsibility for the assessment of an application lies jointly with the applicant and the examining authority11.. In this connection, the said ‘general legal position’ is consistent with the burden of proof standards set by this Court12. and by the Office of the United Nations High Commissioner for Refugees (UNHCR)13..

Even though they accepted the genuine character of the applicant's conversion, the national authorities and courts proceeded on the assumption that the applicant would not be at risk, if deported to Iran, because he could change his social behaviour in order to keep his new faith a strictly private matter. In other words, the Swedish authorities and courts presupposed that the applicant would, or indeed should, refrain in Iran from taking part in church services, prayer meetings and social activities, unlike what he had been doing in Sweden. Such position was explicitly stated by the Migration Board, which considered that to pursue his faith in private was not considered to be a plausible reason for believing that he would risk persecution upon return14..

Neither the Migration Court nor the Migration Court of Appeal rejected this position. Yet some months later the Director General for Legal Affairs at the Swedish Migration Board delivered a new ‘general legal position’, of 12 November 2012, concerning religion as grounds for asylum, which clearly affirmed that a converted person should not ‘be compelled to hide his or her faith solely in order to avoid persecution’15.. Coincidentally, the Grand Chamber of the Court of Justice of the European Union (CJEU) had just delivered its judgment in the case of Bundesrepublik Deutschland v. Y. (C-71/11) and Z (C-99/11), on 5 September 2012, holding:

Both the Director General's general legal position and the CJEU judgment were based on the long-standing guideline of the UNHCR on international protection regarding religion-based refugee claims, of 28 April 2004, according to which one should not be compelled to hide, change or renounce one's religious beliefs in order to avoid persecution16..

We agree with this principled position, which is totally in line with the Court's well-established case-law on the State's duty of neutrality in religious matters and the incompatibility of this duty with any power on the State's part to assess the legitimacy of religious beliefs or the ways and forms in which those beliefs are expressed17.. As the United Kingdom Supreme Court ruled in a case where the claim for asylum was based on homosexuality, using a convincing historical allusion, to hold otherwise would countenance the return of Anne Frank to Nazi-occupied Netherlands, had she managed to escape from there, on the basis that she could have hidden in the attic and therefore could have successfully avoided the possibility of Nazi detention18.. The Supreme Court held that such a position would be ‘absurd and unreal’. Thus, we cannot accept the respondent State's assumption that the applicant would not be persecuted in Iran because he could engage in a low-profile, discreet or even secret practice of his religious beliefs. Not only is the external manifestation of one's faith an essential element of the very freedom protected by Article 9 of the Convention, but at least — and certainly — in the case of Christianity, bearing external witness to that faith is ‘an essential mission and a responsibility of every Christian and every Church’19..

Therefore, we conclude that there has been a procedural violation of Articles 2 and 3 of the Convention on account of the serious shortcomings affecting the domestic proceedings and the ensuing final decision.

Under the Convention, an asylum-seeker cannot be subjected to refoulement to his or her country of origin or any other country where he or she risks incurring serious harm caused by any identified or unidentified person or public or private entity. The act of refoulement may consist in expulsion, deportation, removal, extradition, formal or informal transfer, ‘rendition’, rejection, refusal of entry or any other measure which would result in compelling the person to remain in or return to his or her country of origin. The risk of serious harm may result from foreign aggression, internal armed conflict, extrajudicial killing, enforced disappearance, death penalty, torture, inhuman or degrading treatment, forced labour, trafficking in human beings, persecution, trial based on a retroactive or indeterminate criminal law or on evidence obtained by torture or inhuman and degrading treatment, thus from a ‘flagrant violation’ of the essence of any Convention right in the destination State (direct refoulement) or from further delivery of the person by the destination State to a third State where there is such a risk (indirect refoulement). We note that the prohibition of refoulement is a treaty rule in respect of which no derogations are permitted and no reservations are admitted20.. Furthermore, the prohibition of refoulement is a principle of customary international law, binding on all States, even those which are not parties to the United Nations Refugee Convention or any other treaty for the protection of refugees. The Court has clearly recognised the principle of non-refoulement as a binding rule of international law in, among other cases, Hirsi Jamaa and Others v. Italy [GC]21..

Born in Iran, the applicant became a Christian soon after entering Sweden, at least by December 2009. His conversion is sufficiently borne out by his baptism certificate of 31 January 2010, the declaration of 15 March 2010 from a pastor in Sweden certifying that the applicant had been a member of his congregation since December 2009 and had been baptised, and the letter of 13 April 2011 from his new congregation, which stated that the applicant had converted shortly after his arrival in Sweden, that he had shown with honest intent and interest that he was willing to learn more about his new faith and that he took part in church services, prayer meetings and social activities22.. The respondent Government did not dispute any of this.

The applicant's conversion to Christianity is a criminal offence punishable by death in Iran23.. In addition to the risk of social persecution as a Christian24., the applicant risks criminal prosecution for the crime of apostasy25.. Although the Iranian State has never codified the crime of apostasy, it authorises the enforcement of certain Islamic laws even when the crime is not specifically mentioned in the Criminal Code. Since apostasy is not explicitly proscribed by the Iranian Criminal Code and there are many different interpretations of Islamic law on apostasy, judges have the discretion to adjudicate apostasy cases based on their own understanding of Islamic law26., which they can impose invoking Article 167 of the Iranian Constitution27..

Moreover, the crime of apostasy is punishable even when there is no social unrest, which further aggravates the intrinsically introspective character of the criminal punishment. Furthermore, the crime of apostasy applies differently to men and women, Muslims and non-Muslims, Shia and Sunni Muslims, and Muslims born to Muslim parents and Muslims born to non-Muslim parents. Members of other religious communities and non-believers may become Muslims, without fearing any prosecution. Women apostates are not liable to the death penalty as men are.

In our view, the criminalisation of apostasy breaches international human rights law28.. Such punishment is inherently arbitrary, in so far as the criminalisation of the act of changing one's religion violates the right to freedom of religion and it effectively coerces Muslim citizens to refrain from adopting a different faith. As Article 18 of the Universal Declaration of Human Rights puts it, freedom of religion encompasses necessarily the ‘freedom to change [one's] religion or belief’29.. Furthermore, as a matter of law, both the objective and subjective requirements for the criminal punishment of the act of apostasy are uncertain and ambiguous, as are the penalties applicable, the differences of treatment between the categories of legal subjects being discriminatory.

Finally, the commission of such an offence may be proven in accordance with evidential rules which are at odds with the basic tenets of equality and fairness. Not only do the evidential rules discriminate between testimony provided by male and female, or by Muslim and non-Muslim witnesses, worse still, they admit the use of the private ‘knowledge of the judge’ to ground a criminal conviction. In the light of the above, prosecution and trial for apostasy as a criminal offence represents a flagrant denial of justice30..

In sum, the order for the applicant's deportation to Iran, where he could be tried under the above-mentioned criminal and procedural law, equates to a violation of principles deeply enshrined in the universal legal conscience. The deportation order subjected him to the serious risk of being tried under a criminal law in flagrant breach of the right to freedom of religion and the principle of criminal legality, and in a criminal trial which would constitute a flagrant denial of justice. The implementation of such a deportation order would amount to a grave violation of the principle of non-refoulement.

Consequently, we conclude that there has been a substantive violation of Articles 2 and 3 of the Convention on account of the deportation order issued against the applicant. In the light of the above, we further add that, rebus sic stantibus, the respondent State should not deport the applicant to Iran.