EHRM, 28-02-2006, nr. 27034/05

The applicants, Z. born in Pakistan in 1973 and T. born in Pakistan in 1965 are Pakistani citizens currently resident in Hull. They are represented before the Court by Mr D. Foster, a solicitor practising in Guildford.

The applicants complained under Article 9 that if returned to Pakistan they will be under fear of attack and will not be able live openly and freely as Christians.

The applicants also invoked Article 8, complaining that they were prevented from living in the United Kingdom with their parents, brothers and sister.

The applicants complained that they would be unable to live openly and freely as Christians if returned to Pakistan, invoking Article 9 which provides:

The Court recalls that it is a fundamental principle under the rule of exhaustion of domestic remedies contained in Article 35 § 1 of the Convention that complaints intended to be brought subsequently before the Court should have been made to the appropriate domestic body, at least in substance and in compliance with the formal requirements laid down in domestic law (see Aksoy v. Turkey, judgment of 18 December 1996, ECHR 1996-VI, §§ 51–52, and Akdivar and Others v. Turkey, judgment of 16 September 1996, ECHR 1996-IV, §§ 65–67). It observes that in the present case neither applicant applied for statutory review by the High Court following the refusal of permission to appeal by the Immigration Appeal Tribunal and that the second applicant did not raise her Article 9 complaint before the Adjudicator. The applicants argue that the High Court would in any event have been bound by the House of Lords approach in Ullah (cited above) which they claimed was too restrictive. No explanation is given as to why the second applicant did not raise Article 9 before the Adjudicator.

However, even assuming that the applicants have complied with the requirements of Article 35 § 1, the Court considers that their complaints must be rejected for the reasons set out below.

The Court's case-law indicates that while religious freedom is primarily a matter of individual conscience, it also implies, inter alia, freedom to manifest one's religion not only in community with others, in public and within the circle of those whose faith one shares, but also alone and in private (see Kokkinakis v. Greece, judgment of 25 May 1993, Series A no. 260-A, p. 17, para. 31). Article 9 lists a number of forms which manifestation of one's religion or belief may take, namely worship, teaching, practice and observance. Nevertheless, Article 9 does not protect every act motivated or inspired by a religion or belief. Moreover, in exercising his freedom to manifest his religion, an individual may need to take his specific situation into account (Kalaç v. Turkey, judgment of 1 July 1997, Reports of Judgments and Decisions 1997-IV, § 27).

In this case, the alleged breach arises from the assertion that if the United Kingdom returns the applicants to Pakistan they will be unable, due to the prevailing situation in that largely Islamic country, to live as Christians without risking adverse, if not worse, attention or taking steps to conceal their religion.

It is true that the responsibility of a Contracting State may be engaged, indirectly, through placing an individual at a real risk of a violation of his rights in a country outside their jurisdiction. This was first established in the context of Article 3 (Soering v. the United Kingdom, judgment of 7 July 1989, Series A no. 161, § 88). The case-law that followed, and which applies equally to the risk of violations of Article 2, is based on the fundamental importance of these provisions, whose guarantees it is imperative to render effective in practice (see e.g. Soering v. the United Kingdom, cited above, § 88). The Court emphasised in that context the absolute nature of the prohibition of Article 3 and the fact that it encapsulated an internationally accepted standard and abhorrence of torture, as well as the serious and irreparable nature of the suffering risked. Such compelling considerations do not automatically apply under the other provisions of the Convention. On a purely pragmatic basis, it cannot be required that an expelling Contracting State only return an alien to a country where the conditions are in full and effective accord with each of the safeguards of the rights and freedoms set out in the Convention (see Soering, cited above, § 86 and F. v. the United Kingdom, no. 17341/03, dec. 22.6.04, where the applicant claimed that he would be unable to live openly as a homosexual if returned to Iran). Nonetheless the Court has not excluded that issues may also arise under Article 6, where the person being expelled has suffered or risks suffering a flagrant denial of a fair trial in the receiving country, particularly where there is the risk of execution (see Soering, cited above, § 113; Mamatkulov and Askarov v. Turkey[GC], nos. 46827/99 and 46951/99, § 91, ECHR 2005-…), or possibly under Article 5, if the prospect of arbitrary detention was sufficiently flagrant (Tomic v. the United Kingdom, 17387/03, dec. 14.10.03).

This case raises the question of what approach should be applied to Article 9 rights allegedly at risk on expulsion. The applicants argue that a flagrant denial test should not be applied in the context of Article 9, as was done by the House of Lords in Ullah, as this would fail to respect the primacy of religious rights; and it is contended that effectively requiring them to modify their conduct, concealing their adherence to Christianity and forgoing the possibility of talking about their faith and bearing witness to others, in order to avoid hostile attention would be to deny the right per se.

The Court's case-law indeed underlines that freedom of thought, religion and conscience is one of the foundations of a democratic society and that manifesting one's religion, including seeking to convince one's neighbour, is an essential part of that freedom (Kokkinakis, § 31). This is however first and foremost the standard applied within the Contracting States, which are committed to democratic ideals, the rule of law and human rights. The Contracting States nonetheless have obligations towards those from other jurisdictions, imposed variously under the 1951 United Nations Convention on the Status of Refugees and under the above-mentioned Articles 2 and 3 of the Convention. As a result, protection is offered to those who have a substantiated claim that they will either suffer persecution for, inter alia, religious reasons or will be at real risk of death or serious ill-treatment, and possibly flagrant denial of a fair trial or arbitrary detention, because of their religious affiliation (as for any other reason). Where however an individual claims that on return to his own country he would be impeded in his religious worship in a manner which falls short of those proscribed levels, the Court considers that very limited assistance, if any, can be derived from Article 9 by itself. Otherwise it would be imposing an obligation on Contracting States effectively to act as indirect guarantors of freedom of worship for the rest of world. If, for example, a country outside the umbrella of the Convention were to ban a religion but not impose any measure of persecution, prosecution, deprivation of liberty or ill-treatment, the Court doubts that the Convention could be interpreted as requiring a Contracting State to provide the adherents of that banned sect with the possibility of pursuing that religion freely and openly on their own territories. While the Court would not rule out the possibility that the responsibility of the returning State might in exceptional circumstances be engaged under Article 9 of the Convention where the person concerned ran a real risk of flagrant violation of that Article in the receiving State, the Court shares the view of the House of Lords in the Ullah case that it would be difficult to visualise a case in which a sufficiently flagrant violation of Article 9 would not also involve treatment in violation of Article 3 of the Convention.

In the present application, the applicants have failed to make out a case of persecution on religious grounds or to substantiate that they were at risk of a violation of Articles 2 or 3. Neither applicant had herself been subject to any physical attack or prevented from adhering to her faith. Both have claimed to have received unpleasant telephone calls and to have felt at risk of attack. The essence of their case rests on the general situation in Pakistan where there have been, over the past few years, attacks on churches and Christians. The domestic authorities however gave weight to the fact that the Christian community in Pakistan was under no official bar and indeed had their own parliamentary representatives and that the Pakistani law enforcement and judicial bodies respectively were taking steps to protect churches and schools and to arrest, prosecute and punish those who carried out attacks.

The applicants have emphasised that the police themselves fear the Islamic extremists and that the authorities have failed in the past to protect Christian churches despite the presence of guards. Nonetheless it is not apparent that the authorities are incapable of taking, or are unwilling to take, appropriate action in respect of violence or threats of violence directed against Christian targets.

In those circumstances, the Court finds that, even assuming that Article 9 of the Convention is in principle capable of being engaged in the circumstances of the expulsion of an individual by a Contracting State, the applicants have not shown that they are personally at such risk or are members of such a vulnerable or threatened group or in such a precarious position as Christians as might disclose any appearance of a flagrant violation of Article 9 of the Convention..

It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

The applicants complain that the decision of the United Kingdom authorities to grant most of their family asylum and to deny refugee status to themselves breaches Article 8 of the Convention, which provides:

The Court observes that where immigration is concerned Article 8 cannot be considered to impose on a State a general obligation to respect immigrants’ choice of the country of residence and to authorise family reunion in its territory (see Gül v. Switzerland, cited above, loc. cit., Ahmut v. the Netherlands, cited above, § 67, and P.R. v. the Netherlands (dec.), no. 39391/98, 7 November 2000). As a matter of well-established international law and subject to its treaty obligations, a State has the right to control the entry of non-nationals into its territory. Moreover, while the exclusion of a person from a country where his or her immediate family resides may in some circumstances raise an issue under Article 8, relationships between adult relatives do not necessarily attract the protection of that provision without further elements of dependency involving more than the normal emotional ties (cf. Ezzoudhi v. France, no. 47160/99, 13.2.2001, § 34).

The Court notes that the present applicants are adults, with families of their own, and that they were living separately from their parents and siblings when the 2001 attack on the Bahawalpur Church occurred. They continued living in Pakistan for three years after their parents and brother left. In the circumstances the Court discerns no elements of dependency involving more than the normal emotional ties between the applicants and the members of their family now living in the United Kingdom.

It follows that this complaint is manifestly ill-founded and must be rejected pursuant to Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court unanimously

Declares the application inadmissible.

Josep CASADEVALL

President

Françoise ELENS-PASSOS

Deputy Registrar