Case No. UKUT-00286-(IAC)

to the Immigration Rules. I have set out the Rules as an appendix to this decision. In essence they provide for a valid Certificate of Sponsorship in circumstances where the sponsor must confirm that the applicant is being sponsored to perform religious duties of a nature specified; confirms that the applicant will receive pay and conditions as specified; meets the requirements of the resident labour market test; establishes the applicant is qualified to do the job in respect of which he is seeking leave as a minister of religion and demonstrates, where necessary, that a national recruitment search was undertaken. 64. The appellant will himself, of course, face the prospect of mandatory refusal of entry clearance or leave to remain most obviously under paragraph 320(7B). Whilst the appellant will face real practical difficulties in making an out-of-country application for entry clearance as a minister of religion, this arises because of his own poor immigration record, compounded by his failure to mitigate his position by a voluntary return. Nevertheless, the option of returning to Afghanistan and making an out-of-country application for entry clearance is reasonable in the case of an individual who has no right to enter or remain in accordance with Chikwamba principles, Chikwamba v Secretary of State for the Home Department [2008] UKHL 40. Such a person cannot advance the argument that his immigration history renders it unreasonable to require an out-of-country application because he is at risk of refusal by reason of past breaches of immigration law. Were it otherwise, the reasonable requirement to regularise an individual's immigration status by an out-of-country application would favour an individual with a poor immigration history at the expense of others because his application is more likely to fail. This principle affects both the Article 9 consideration of the appellant’s own claim as well as the consideration that must be afforded to the rights of the religious organisation. The appellant’s personal claim to avoid removal 65. For the reasons I have given, the AICC, whose interests are co-extensive with the Muslim worshipping community in the Centre and, more generally, in London is entitled to due consideration as an organisation and through its collective membership. The community’s interest is distinct from the appellant’s personal claim seeking to avoid removal on proportionality grounds. Given the appellant’s immigration history, for which he is responsible, the appellant’s personal claim to avoid removal is easily out-weighed by the public interest in enforcing immigration controls either where the individual does not meet the requirements to remain under the Immigration Rules or where the individual is an illegal entrant or overstayer or otherwise in breach of immigration law. There is no doubt an interference sufficient to engage Article 9 but the interference is in accordance with the law and is necessary to provide the sanction of removal in the case of illegal entrants and overstayers and/or to discourage others who enter illegally or extend their stay unlawfully. As a result of his poor immigration history and the legitimate process of seeking his removal, the appellant’s personal claim to remain is extremely weak and is clearly outweighed by the wider public interest engaged by Article 9. He will be free to practice his religion without any obvious constraint when he returns to Afghanistan and he cannot claim the right to practice it in the United Kingdom notwithstanding his breaches of immigration law. The Communities’ interest in the exercise of proportionality 66. I use the term ‘Communities’ (in the plural) because the appeal engages the interest of two communities: the relevant Afghan Muslim community on the one hand, whose interests have been extensively articulated in the wealth of the supporting material and, on the other, the wider community whose interests the Secretary of State represents but in circumstances where that interest is less well articulated (in the sense that it is not expressed by personal letters or expressions of opinion). However, the public at large has an interest in maintaining a system of immigration control that distinguishes between those entitled to remain and others and, in the case of the latter, provides a means of removal without thereby infringing protected rights, including the right to right to freedom of thought, conscience and religion. This appeal therefore raises a proportionality balance to be exercised between one community and another. 67. The general principle that such a body as the AICC is not entitled to employ as a teacher and minister of religion a foreign national who does not meet the statutory requirements properly identified as forming part of the public interest in maintaining immigration control was not disputed by the ECtHR in El Majjaoui & Stichting Touba Moskee v. the Netherlands . Article 9 does not guarantee a foreign national the right to obtain permission to reside in another country even for the purpose of working as a religious leader or teacher. The domestic authorities have a margin of appreciation in setting the rules that permit (or prevent) entry or leave to remain for such purposes, see paragraph 31 of El Majjaoui , cited in [21] above. 68. The Immigration Rules cannot properly be construed as a deliberate attempt to stifle the free exercise of the practice of their religion by the AICC and Afghan Muslim community in the United Kingdom and London in particular. The Rules (see the appendix to this determination which sets out the material provisions in full) are permissive and allow ministers of religion to enter and remain subject to reasonable conditions as to the terms of their employment and the protection of the resident labour market. 69. I recognise that it is not permissible in the implementation of the Rules (notwithstanding the fact that they normally operate consistently with Article 9) to make the free exercise of religion a practical impossibility. Thus in the case of Cha'are Shalom Ve Tsedek v. France if a religious community genuinely needed meat to have been ritually slaughtered in a way prevented by domestic law, the prescription contained in domestic law would be a violation of their Article 9 rights. 70. I would however regard the general principle referred to in the preceding paragraph to be subject to reasonable limitations. Thus, the practice which is said to be made impossible must have obtained a sufficient level of ‘cogency, seriousness, cohesion and importance’ (to adopt the expression used by the ECtHR) to merit protection notwithstanding its contravening domestic law. I suggest this means that alterations to traditional practice brought about by domestic laws (for example, hygiene or health and safety) do not demand protection but only do so when the prohibition goes to the core of what it means to the individual to be a Muslim, a Hindu or a Christian. 71. In the context of this appellant the functions that he performs (and which his removal would prevent occurring) must reach a level such that the AICC or its membership cannot properly function without him as a worshipping Muslim community. 72. It must be noted that, in the context of a religious community transplanted into another country by the process of migration, religious practices often or always adapt to the changed environment. Thus, for example, the practice of cremating human remains in ghats and committing the ashes to the Ganges is inevitably different in the diaspora and practice has changed to reflect that difference. 73. The issue in this appeal, therefore, is whether it is impossible for the Afghan religious community to operate in accordance with their religious beliefs and practices without the presence of the appellant. In addressing this issue, the Tribunal must be alive to the possibility that, in seeking to retain the appellant as a religious worker, the community may formulate a job description that effectively excludes any applicant save the claimant. Thus, for example, a job description for an individual to replace the appellant might prescribe the following requirements: The applicant must be a male, aged between 25 and 30, and have been in the United Kingdom for at least eight years. He must be a Hafiz and speak Pashtu and Dari. He must have had experience in teaching in a Madrasa and have experience in community building. He must have a charismatic personality and have the respect of the Afghan Muslim community as a whole. He must be able to deal with Embassy functions. 74. There is a marked similarity between this description of the work that the appellant has described doing and the advertisement which I have set out in paragraph [14] above. The AICC claim that the appellant is uniquely able to perform the functions they wish and that attempts to advertise for a replacement have failed to produce a suitable candidate. Caution should be exercised when considering the weight to be attached to the responses to an advertisement. If the job description is tailored to the specific attributions of the appellant, it will not be surprising that only the appellant himself will readily qualify. It should be remembered that the applicant himself would not have qualified for the job if he had been faced with the same criteria as those set out in paragraph [14] when he started working for the AICC in 2007. 75. I have concluded that the AICC has failed to establish that the Afghan Muslim community cannot operate without the continued presence of the appellant. First, it is accepted that there are some 56,000 Muslim Afghans in the United Kingdom and this provides an adequate source of suitable alternative candidates, albeit an individual may not presently have the same experience and qualities as the appellant. 76. Second, the Immigration Rules do not prevent the AICC from recruiting a suitable applicant from abroad. 77. Third, it is not necessary that the various functions currently performed by the applicant continue to be performed by a single person. If he performs several roles, it is not a violation of Article 9 that those roles are carried out by several others. This is so even if it is more costly and less convenient to use several individuals. 78. Fourth, it cannot reasonably be said that the Afghan Muslim community in the UK would cease to continue as a religious community were the appellant to be removed. The community operated without his presence prior to 2007. The appellant has only been in the United Kingdom since then, when he arrived aged 17 or 18, having spent some 3½ years at a Madrasa. His undoubted popularity and ability must be the result, in part at least, of his growing experience developed over time. Hence it cannot be a violation of Article 9 if the AICC were placed in the position that a less experienced religious worker has to be retained. This merely replicates the position in which the AICC must have found themselves when the applicant joined them. 79. Finally, it cannot reasonably be said that the Afghan Muslim community in the United Kingdom would similarly face the prospect of the practical inability to practice their religion were the appellant to die or become so seriously ill as to be unable to continue his work or if the appellant himself decided to leave. If that is correct as it relates to a cessation of his activities brought about by circumstances beyond the control of the AICC or its members, it must also apply in the case of an enforced removal. Conclusion 80. It is inevitable in an application of this nature, as I have suggested in paragraph 47 above, that the evidence will be directed towards reasons why the appellant should not be removed. This is all the more so when the religious organisation is articulate, well-educated, committed and focused. Their support does them credit. However, their claim leaves out of the account the fact that the appellant is an illegal entrant and an overstayer. 81. I have no doubt that the public interest criteria which come into play have to be assessed having regard to the views of the AICC and its members. In doing so, I accept that in accordance with the judgment of Richard's LJ in UE (Nigeria) & Ors v Secretary of State for the Home Department the benefit to the community of the work performed diminishes the weight given to immigration control. Nevertheless, it would be a curious result if, as a result of a petition containing 1000 signatures, the system of United Kingdom law and regulation were to be suspended. That does not mean those who petition should not influence legislators or local councillors or decision makers. Their views should be taken into account. That however is a far cry from claiming that their views should be determinative or, indeed, very influential; all the more so when the interest they represent is local, perhaps even parochial. 82. For these reasons I am satisfied that notwithstanding the keen interest shown by the AICC and its membership (itself and collectively) in retaining the appellant, the public interest in his removal outweighs it. I accept his positive place in the community diminishes the public interest in his removal. I also accept that it is comparatively rare for any community (not simply a religious community) to rally round and offer such vocal support to an illegal immigrant and overstayer. However, for the reasons I have given, it is not easy to attach significant weight to a section of public opinion such as to render it a proportionate response to make an exception to the operation of the Immigration Rules. Although this is an Article 9 claim, based on the right to freedom of thought, conscience and religion, I do not regard that it operates in a markedly different way from the proportionality exercise in the related Article 8 case or that, in doing so, it favours the AICC and its members on the issue of Article 9 proportionality. DECISION The Judge made an error on a point of law and I substitute a determination dismissing the appeal on all the grounds advanced. ANDREW JORDAN UPPER TRIBUNAL JUDGE 12 April 2016 Appendix Appendix A