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July 10, 2018
The human rights approach to serious harm offers a more principled framework for defining “being persecuted” because it prevents judges from weighing harm to determine whether they believe the persecution is “serious enough” to meet a nebulous, subjective threshold of suffering. The 1951 Convention Relating to the Status of Refugees (the Convention) requires that refugees have a “well-founded fear of being persecuted.” The two main components of “being persecuted” are serious harm and the state’s failure to protect. The Convention does not specifically define “being persecuted,” leaving Member States to determine its meaning.
Countries Lack Clear and Objective Standards for Serious Harm Determinations
U.S. immigration law fails to define “being persecuted” even though the term “persecution” is part of its statutory definition of “refugee.” Without a clear definition of persecution or specific guidelines to determine serious harm, U.S. decisionmakers frequently fall into a subjective approach to assess an applicant’s well-founded fear of “being persecuted.” This approach is problematic. It leads judges to make subjective determinations, simply based on whether the harm was “bad enough” in his/her opinion, resulting in inconsistent decisions. Other jurisdictions like Australia and Austria have also fallen into this subjective approach.
The U.S. Sixth Circuit Court of Appeal’s subjective, standard-less basis for rejecting a German family’s asylum claim in the case Romeike v. Holder highlights the courts’ need for a clear and objective method of determining serious harm. A German family, the Romeikes, decided to homeschool their children for religious reasons despite Germany’s compulsory school attendance laws. Germany responded with a truancy action, heavy fines, and on one occasion, sending the police to escort the children to school. The Romeikes sought asylum in the United States in pursuit of freedom to homeschool according to their beliefs.
The Sixth Circuit held the Romeike’s inability to homeschool for religious reasons did not amount to persecution. The court asserted the asylum analysis should focus on whether the applicant had a well-founded fear of persecution. However, the court failed to define persecution or present any method to do so. While correct that “[a] petitioner cannot obtain asylum merely by proving a treaty violation,” under the human rights approach an international treaty violation could at least satisfy the serious harm element of the persecution analysis. Instead of quickly dismissing the importance of a treaty violation, the court should have considered this violation in its persecution analysis more specifically. Because the Romeike’s inability to homeschool their children for religious reasons violated an important human rights treaty, the court would have found that they suffered serious harm under the human rights approach. Following this approach would have kept the court from engaging in the subjective harm weighing that leads to inconsistent and unprincipled decisions.
The Human Rights Approach to Serious Harm
Under the human rights approach, there is a risk of serious harm for the purposes of the “being persecuted” if the applicant is at risk of a sustained or systemic denial of a broadly accepted human right. Three steps inform this analysis. First, the interest at stake must be found in a human rights norm as defined by a widely ratified international human rights treaty. Secondly, the denial cannot fall within a legitimate limitation of that right. And finally, the harm cannot be de minimis.
Germany’s homeschool ban satisfies the three-part test and qualifies as serious harm under the human rights approach. First, Germany’s homeschool ban likely violates The International Covenant on Civil and Political Rights (“ICCPR”) Article 18(4). The text of Article 18(4) clearly assures that parents have the ability to provide their children with a religious education, stating that “[t]he [ICCPR parties]] undertake to have respect for the liberty of parents … to ensure the religious and moral education of their children in conformity with their own convictions. According to General Comment No. 22, a state’s education system does not violate Article 18(4) if (1) public school instruction on subjects like the general history of religions and ethics are “given in a neutral and objective way;” and (2) if public education does instruct on a particular religion or belief, there must be “non-discriminatory exemptions or alternatives that would accommodate the wishes of parents and guardians”.
The ICCPR interprets the word “religion” broadly and Article 18’s protection is not confined to traditional religion. The UNHCR includes “religion as a way of life” in its “religion” definition. And the meaning of “religion” may include theist or non-theistic beliefs. This broadly construed definition guides the evaluation of whether Germany’s public school education is “religious.”
In Hartikainen v. Finland, the Human Rights Committee (“the Committee”), held that a Finish law stipulating that children attend Finish school where they would be instructed in the history of religion and ethics, did not violate ICCPR Article 18(4) because of the neutral and objective instruction and the school’s effective exemption system. As for the curriculum itself, the Committee found that it was not obviously biased toward a religion. The Committee also found that the Finish law complied with Article 18(4) because its exemption system was effective since it allowed for comparable instruction to be made available outside school and it provided a non-discriminatory “alternative course of instruction  given in a neutral and object way….” As a result, the implementation of this system actually respected the atheist parents’ convictions.
In Leirvag v. Norway, the Committee held that the ‘Christian Knowledge of Religious and Ethical Education’ (“CKREE”), a school subject teaching Christian religion and philosophy, violated Article 18(4) because its implementation was not impartial and neutral since the school did not offer non-discriminatory, practical alternatives. The Committee looked to personal experiences of the students to determine the exemption system’s effectiveness. While exemption systems can mend a school’s otherwise non-neutral religious education, implementing an exemption system will not put the state out of breach unless it is actually possible to implement it in a non-discriminatory and effective manner that “accommodate[s] the wishes of the parents….” The Committee found the school’s exemption system discriminatory since it imposed a “considerable burden” on exemptees, and because the exemptees were subsequently bullied for their parents’ beliefs.
According to the Committee’s application of Article 18(4), in order to comply with this article school instruction on subjects like religion and ethics must, in practice, be taught in a neutral or objective manner. And schools’ instruction on a specific religion or belief must provide a “nondiscriminatory exemption or alternative” for students that actually allows parents to guard the religious nature of their children’s education.
Article 18(3) Limitations
If a breach of Article 18(4) is found, we look to see if the breach falls within an Article 18(3) limitation. Article 18(3) states, “Freedom to manifest one’s religion or beliefs may be subject only to such limitations as are prescribed by law and are necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others.” UN General Comment No. 22 on Article 18 explicitly and specifically explains that “the liberty of parents and guardians to ensure religious and moral education cannot be restricted.” The General Comment’s two-part test to determine if a state’s education system complies with Article 18(4) is clear and unambiguous: “public education that includes instruction in a particular religion or belief is inconsistent with Article 18.4 unless provision is made for non-discriminatory exemptions or alternatives that would accommodate the wishes of parents and guardians.” Therefore, if the German law violates Article 18(4), Germany cannot justify its law under any of the Article 18(3) limitations. Because the Romeike’s claim is based on their inability to ensure a religious education for their children, the Article 18(3) limitations analysis is not relevant to their claim.
The Homeschool Ban Breaches Article 18(4)
In light of General Comment No. 22 and the Committee’s jurisprudence, it is likely Germany’s homeschooling ban violates Article 18(4). To address this issue, we need to know whether (1) the content of public school curriculum teaches on specific beliefs or religion; (2) it presents teachings in a neutral and objective way; and (3) Germany offers a non-discriminatory alternative to this type of “religious” instruction.
While the Romeike opinion did not present specific details of German public school instruction or school experience that raised their fear of the school’s influence, the Romeike’s brief mentioned Germany’s reasons for banning homeschooling. Germany’s compulsory public education law is rooted in achieving philosophical uniformity and it was instituted, in part, “to prevent religiously and philosophically-motivated ‘parallel societies'” from forming.
This motivation strongly indicates that Germany’s curriculum uses non-neutral and subjective instruction on religion, beliefs, or philosophy as a way of achieving philosophical uniformity. The Romeike’s fear of the public curriculum’s non-Christian influence, if well-founded, is a strong indication that beliefs and religious/philosophical ideas are promulgated in German public schools, likely in a non-neutral or subjective fashion. If the public school’s curriculum were purely objective, it is not likely the Romeikes would have a well-founded fear that public school would influence their children against the family’s Christian values.
Germany grants no alternatives for families like the Romeikes who want to opt out of classes instructing on beliefs or religion inconsistent with their own. Not only does Germany fail to grant religiously motivated exemptions, but in extraordinary circumstances unrelated to religion when it does allow exemptions, the state often sends a teacher to the children’s house for individual instruction. Given the evidence of Germany’s desire to unify the nation’s philosophical outlook, the absence of religious exemptions, and the Romeike’s concern about the curriculum’s content, it is reasonable to conclude that German schools do instruct on specific religions or beliefs in a non-neutral manner. Therefore, the German law violates Article 18(4) since the public schools provide no alternative to this instruction.
The Romeikes suffered serious harm under the human rights approach because their inability to provide their children with a religious education under German law violated Article 18(4) of the ICCPR and did not fall into a legitimate limitation. The Sixth Circuit should have carefully laid out a standard for serious harm instead of simply rejecting the violation of a human right as an insufficient basis for granting asylum. Had it done so, its opinion would have been clearer, its standard of serious harm visible, and the Romeikes would very likely have met this element of the asylum test. Given the problem of subjective persecution assessments and the lack of standards, countries would do well to adopt a clearly defined system of analyzing the persecution element.
 Hathaway & Foster, The Law of Refugee Status, 187, 193-95 (2014).
 Id. at 185.
 Id. at 189.
 Id. at 188-89.
 Id. at 187.
 In this note, I will assume the nexus requirement is met and set aside the issue of the failure of state protection also relevant to the persecution analysis. For more information on nexus and the government’s role in persecution, See Hathaway & Foster, supra note 1, at 362-82.
 Id. at 195.
 Id. at 204.
 Id. at 205.
 Id. at 206.
 See Brief for Petitioner at 18-19, Romeike v. Attorney General, 718 F.3d 528 (2013) (No. 13-471), 2013 U.S. App. LEXIS 9652.
 Id.at 19, 25 (citing Konrad Bundesverfassungsgericht [BVerfG] [Federal Constitutional Court] Apr. 29, 2003, 1 BvR 436/03 (Ger.).
Suggested Citation: Erin Liechty, Taking Subjectivity Out of the Serious Harm Determination, RefLaw (July 10, 2018), http://www.reflaw.org/taking-subjectivity-out-of-the-serious-harm-determination/.