Z. and T. v. the United Kingdom (dec.)

Avrupa İnsan Hakları Mahkemesi

Karar Metni

Information Note on the Court’s case-law No. 83

February 2006

Z. and T. v. the United Kingdom (dec.) - 27034/05

Decision 28.2.2006 [Section IV]

Article 9

Article 9-1

Manifest religion or belief

Impending expulsion of Christians to Pakistan: inadmissible

Article 3

Expulsion

Impending expulsion of Christians to Pakistan: inadmissible

Facts: The applicant sisters are Pakistani Christians. Their parents were active in the Christian community in Bahawalpur, their father Mr M. being a Methodist minister since more than 30 years. In 1990, the second applicant married her cousin, also a Christian and the son of a priest. From 1999 she worked as a teacher in a convent school. The first applicant married a fellow Christian in 1997. In 2001, after the attacks in the United States on 11 September, machine guns were fired into the church in Bahawalpur and many worshippers were killed or injured. Mrs M. was among those severely injured. Mr and Mrs M., and their son Dr H. fled to the UK to obtain medical treatment for Mrs M. Their son I. was already in the UK. All were granted asylum as was the applicants' sister A. In 2004 the first applicant travelled to the UK with her children on a visitor's visa to see her mother who continued to be unwell. Later in 2004 Mrs M. died and the second applicant came to the UK with her family to attend the funeral.

A day after her arrival in the UK, the first applicant applied for asylum, along with her husband and daughter. She stated that there had been a bomb threat on their church in Sukkur in 2002, while in October 2003 her husband and his brother had been attacked by extremists. In the latter incident no-one had been hurt in the shooting but the assailants had absconded with her husband's motorbike. She and her husband had also received threatening telephone calls. The Secretary of State refused asylum, considering that the first applicant had never been physically attacked or ill-treated on the basis of her beliefs and had not been present during the bomb threat at the church where the police had successfully intervened. He noted that Christians were a recognised minority group under the Constitution of Pakistan, that the Pakistani Government were taking measures to curb acts of sectarian violence and that they were willing and able to take action to protect Christian churches and communities. The Adjudicator refused the first applicant's appeal, finding that the Pakistani authorities offered protection to churches, inter alia convicting six men for an attack on a Christian church. He also noted that the first applicant had not herself been personally or directly threatened with violence and that she had lived some distance from Bahawalpur, having no direct connection with the incident there. He noted that the assault on her husband in 2003 had been reported as robbery without any mention of religious motivation for the attack. He found no problem arising under Article 9 as there was no bar on Christianity as shown by the fact that her father had been a Methodist minister for 38 years. He concluded that she had not shown that she was personally at risk. The Immigration Appeal Tribunal refused permission to appeal further, finding in line with a recent UK authority that the situation of Christians in Pakistan who, for example, had their own representatives in Parliament was not so flagrantly bad as to allow exceptionally a case to proceed under Article 9 where there were no grounds under Article 3.

In 2004 the second applicant also applied for asylum, together with her children and husband, claiming that she feared that if she returned to Pakistan she would be subjected to attack by Muslim extremists because she was a Christian. She referred to having received nuisance telephone calls during the night after the incident on the Bahawalpur Church. The Secretary of State again refused asylum, considering, in particular, that the applicant had not been at risk because of the incident at Bahawalpur as she had lived in Peshawar and since the incident had suffered nothing more serious than nuisance telephone calls. He found no ground for a breach of Article 9 as she had not shown any risk of a flagrant denial of her rights. The Adjudicator refused the second applicant's appeal, noting that she had not applied for asylum at the time of the 2001 attack but had remained in Pakistan for another three years. While she claimed to have received unpleasant telephone calls, she had been able to deal with them by switching off the phone. The Adjudicator found no indication that there would be insufficient protection offered to her by the authorities who had placed guards on the churches and on the school where she worked. The Immigration Appeal Tribunal refused permission to appeal further, noting that the second applicant had not raised her Article 9 complaint before the Adjudicator, even though represented by specialist advocates, and finding no error in the Adjudicator's decision.

Article 9 – 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 but applies equally to the risk of violations of Article 2. 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. 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 or possibly under Article 5, if the prospect of arbitrary detention was sufficiently flagrant.

In the present case the question arose as to what approach should be applied to Article 9 rights allegedly at risk on expulsion. The Court's case-law indeed underlined that freedom of thought, religion and conscience was one of the foundations of a democratic society and that manifesting one's religion, including seeking to convince one's neighbour, was an essential part of that freedom. This was 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. 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, 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. 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 where the person concerned ran a real risk of flagrant violation of that provision in the receiving State, 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. The applicants had 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 had claimed to have received unpleasant telephone calls and to have felt at risk of attack. The essence of their case rested on the general situation in Pakistan where there have been, over the past few years, attacks on churches and Christians. The UK authorities however had placed weight on 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. It was not apparent to the Court therefore that the Pakistani authorities were incapable of taking, or unwilling to take, appropriate action in respect of violence or threats of violence directed against Christian targets. Even assuming that Article 9 was in principle capable of being engaged in the circumstances of the expulsion of an individual by a Contracting State, the applicants had not shown that they were 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 that provision: manifestly ill-founded.

Article 8 – 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. The applicants in question were adults, with families of their own, and had been living separately from their parents and siblings when the 2001 attack on the Bahawalpur Church had occurred. They had continued living in Pakistan for three years after their parents and brother had left. The Court therefore discerned 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: manifestly ill‑founded.

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