GPPi researcher says EU’s Court of Justice is failing to develop asylum law

The Court of Justice of the European Union – the EU’s top court – is failing expectations as the only supranational court in asylum matters, writes GPPi Research Associate Julian Lehmann in the April 2014 issue of the International Journal of Refugee Law.

In the article, Lehmann comments on a 2012 case in which the court of Justice of the EU, for the first time in history, discussed the meaning of the term ​“persecution” in the context of religious freedom. The court ruled that interference with freedom of religion counts as persecution when the person concerned runs a risk of being prosecuted or subject to inhuman or degrading treatment or punishment.

Lehmann argues that the ruling relied too heavily on the case law of the European Court of Human Rights. This case law is based on the interpretation of a regional human rights treaty and should not have been decisive for international refugee law, says Lehmann.

The ruling by the Court of Justice of the EU came about following a quarrel in German asylum law. German courts had for a long time held the view that people who practice their religion in public where they risk being harmed do not qualify as being persecuted and thus do not qualify for refugee status.

The Court of Justice rightly rejected that view, argues Lehmann, but its own definitions of relevant harm and persecution in the 2012 ruling is similar to the very German case law it had intended to challenge in the first place.

There may be no perfect test to circumscribe the meaning of persecution when it comes to religious freedom, says Lehmann, but the Court of Justice has chosen the easiest way out by falling back on a narrow definition of relevant harm.

The court’s first ruling on the term ​“persecution” will not be its last, Lehmann says.