CONCURRING OPINION OF JUDGE BIANKU

I agree with the finding of a violation in this case. However I would like to add the following remarks.

Today’s judgment correctly confirms the Court’s position in paragraph 115, observing that “[a] full and ex nunc evaluation is required where it is necessary to take into account information that has come to light after the final decision by the domestic authorities was taken”. This has been the consistent approach of the Court in relation especially to deportation cases, in order to make its protection practical and effective.

I consider it necessary to recall that the Court established the principles relevant to its assessment of the risk of ill-treatment in the judgment in Cruz Varas and Others v. Sweden (20 March 1991, §§ 74-76 and 83, Series A no. 201), and further clarified and consolidated these principles in Vilvarajah and Others v. the United Kingdom (30 October 1991, §§ 107-08, Series A no. 215).

It is therefore clear, since those 1991 judgments, that for the purposes of the risk assessment analysis under Article 3 of the Convention, the ex nunc analysis approach has been used by the Court in relation both to developments in the destination country and to the developing situation of the applicants themselves while in the country where they are seeking asylum – the so-called sur place activities (see S.F. and Others v. Sweden , no. 52077/10, §§ 68-71, 15 May 2012) [1] . Today’s judgment is a confirmation of the application of the ex nunc analysis in relation to sur place activities.

Paragraph 156 of the present judgment affirms that “regardless of the applicant’s conduct, the competent national authorities have an obligation to assess, of their own motion, all the information brought to their attention before taking a decision on his removal to Iran” (emphasis added) .

I merely wish to point out that this should have been clear to the national authorities, as for more than twenty years now they have had such a procedural obligation. In view of the consistent approach of ex nunc analysis taken in Strasbourg, also used by national courts for many years in their risk assessment [2] , and now codified at EU level [3] , I would have preferred it if today’s judgment had found clearly that, because of the lack of ex nunc risk assessment, combined with an ex proprio motu investigation and analysis of material by the Swedish authorities (see Vilvarajah and Others , cited above, § 107) [4] , the latter had not conducted an Article 3 compliant assessment of the applicant’s situation. I believe that only an assessment at national level which is compliant with Article 3, as established by the Court, would gradually reduce the need for Strasbourg to intervene and proceed itself with an ex nunc analysis of continuously evolving and difficult situations at a second stage.

PARTLY CONCURRING, PARTLY DISSENTING OPINION OF JUDGE JÄDERBLOM, JOINED IN RESPECT OF PART 1 BY JUDGE SPANO

1. Potential violation of Articles 2 and 3 of the Convention

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 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 present 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 who must also try and assess, not difficulties already experienced, but those which can be expected. It should be noted that the judgment of the Court of Justice of the European Union (CJEU) in Bundesrepublik Deutschland v. Y and Z (see paragraph 50 of the present 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 A and Others v. Staatssecretaris van Veiligheid en Justitie (see paragraph 51 of the present 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 the 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 from 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 the 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.

2. It is no longer justified to continue the examination of the application

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:

“The Court may at any stage of the proceedings decide to strike an application out of its list of cases where the circumstances lead to the conclusion that

(a) the applicant does not intend to pursue his application; or

(b) the matter has been resolved; or

(c) for any other reason established by the Court, it is no longer justified to continue the examination of the application.

However, the Court shall continue the examination of the application if respect for human rights as defined in the Convention and the Protocols thereto so requires.”

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 , cited above; 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.