Supreme Court of Civil Cassation, Section VI - 02/12/2022, No. 35526

With order No. 35526 dated 02/12/2022, the Supreme Court of Civil Cassation, Section VI, has once again ruled on the recognition of refugee status for religious reasons of the foreigner.

In the present case, the petitioner, a Chinese citizen adherent to the "Evangelical Church," challenged judgment No. 2051/2021, whereby the Court of Appeal of Milan had upheld the order rejecting international protection by the local court.

In particular, the complaint concerned the lack of a concrete and specific assessment carried out by the lower court regarding the existence of the prerequisites for recognising refugee status, to be conducted through research on the treatment reserved for the petitioner's religious group in their country of origin.

The Supreme Court overturned the lower court's decision rejecting the petitioner's application, categorically excluding the possibility that the limits on religious freedom provided by the Chinese legal system could be unjustified, reaffirming a legal principle already established in judgment No. 35102 of November 17, 2021. According to this principle, 'regarding refugee status, and with respect to the foreigner's religious freedom [...] the fear must be assessed in light of both the content of the legislation and its concrete application by the country of origin, concerning respect for the "internal" limits to religious freedom that arise from Article 19 of the Constitution and Article 9(2) of the European Convention on Human Rights. The judge must assess whether the interference by the country of origin in the petitioner's freedom to manifest their worship is provided by law, directed toward pursuing one or more legitimate purposes as provided therein, and constitutes a necessary and proportionate measure for the pursuit of such purposes.' This interpretation was reiterated in the order of January 4, 2023, No. 123, in which the Supreme Court once again emphasised that the lower court must conduct a concrete assessment regarding the existence of actual persecutory conduct in the country of origin.

The discussed order falls within the scope of the Supreme Court's nomophylactic action aimed at guaranteeing religious freedom for individuals through the respect of the parameters established by the Court itself, which are useful in guiding the lower court's assessment of claims for refugee status based on religious reasons. Indeed, these decisions aim to address the rather fluctuating trend in lower court jurisprudence, attributable to the existence of a sort of grey zone between the category of discrimination - which does not always reach the level of intensity justifying the recognition of refugee status - and that of religious persecution.

Therefore, the lack of a genuine and concrete investigation by the lower court regarding the existence, in the legal system of the country of origin, of limits on religious freedom that are necessary and proportionate to the pursuit of legitimate purposes is being criticised. For this reason, the lower court cannot limit itself to purely abstract considerations regarding the existence of persecutory aspects related to the asylum seeker's religious freedom, such as those elaborated with respect to the Chinese legal system, where the existence of persecutory initiatives is dismissed simply because the repression of religious pluralism in China is concealed with facade guarantees. Instead, the lower court must surpass the merely abstract data represented by legislative provisions and delve into an assessment of their concrete application in the petitioner's country of origin.

Therefore, the Supreme Court's nomophylactic function is commendably leaning toward a guarantee-oriented and substantial direction, hopefully shaping judicial interpretation to be more respectful of human rights.

Brigitta Marieclaire Catalano