Case No. UKUT-00286-(IAC)

[2004] UKHL 27 save for the omission of the ‘economic well-being of the country’ criterion in Article 9(2). (iii) In an appeal where the violation is alleged to occur by reason of removal from the United Kingdom, the test of proportionality governs the exercise of Article 9 rights and not the more stringent approach involving whether the returnee is at risk of a flagrant denial or gross violation in his home country. (iv) A further distinctive feature is the creation of a statutory right in s.13 of the Human Rights Act 1998, independent of Article 9, enabling a religious organisation to benefit from the Convention right to freedom of thought, conscience and religion alongside its members collectively and individually. (v) Matters relied on by way of a positive contribution to the community are capable in principle of affecting the weight to be given to the maintenance of effective immigration control and should not be excluded from consideration altogether but are unlikely in practice to carry much weight. (vi) The operation of the Immigration Rules will not amount to an unlawful interference in the selection of a religious leader when the personality of the appellant has not influenced the decision and where anybody in the same position as the appellant who fails to meet the requirements of the Rules is likely to be refused. DECISION AND REASONS Introduction and immigration history 1. The appellant is a citizen of Afghanistan, who was born on 1 January 1989 and is now aged 27. He was encountered by immigration officials on 8 January 2007 concealed in the back of a lorry and was notified of his liability to be removed. At interview he claimed that he was 17 years of age but an age assessment concluded that he was over the age of 18. He claimed asylum but his application was refused on 29 May 2007. He appealed against that decision on asylum and human rights grounds, his appeal was dismissed and reconsideration was refused. His statutory rights of appeal became exhausted in October 2007. Eventually, in February 2011, the appellant sought judicial review of the respondent’s refusal to treat his further submissions as a fresh claim. Those were summarily refused by Thirlwall J on 1 June 2011 who considered that the respondent’s decision-making process had been lawful, that the proceedings were bound to fail and that renewal would not operate as a bar to removal. 2. It was at this stage that the Afghanistan Islamic Cultural Centre (AICC) sought to intervene as an interested party in support of further submissions which resulted in a hearing on 11 November 2011 at which permission to seek judicial review was ordered, it being arguable that the Secretary of State had unlawfully failed to take into account the benefit that the appellant provided to the community and the impact on the community of his removal, demonstrated by numbers of letters of support and a petition, signed by some 945 signatories in terms that the appellant ‘ contributed to serving our community, maintaining a peaceful and harmonious society ’. The Secretary of State agreed to reconsider the claim and a further decision was made on 17 August 2012 refusing his claims both under the Refugee Convention and the ECHR. This was subject to an appeal which was heard on 1 February 2013. At the appeal hearing, the appellant withdrew his asylum claim as well as his claims under Articles 3 and for humanitarian protection. 3. The appellant then placed reliance on Articles 8, 9 and s. 13 of the Human Rights Act. In support of this application he submitted a report of April 2009 dealing with the Afghan Muslim community in England, a report to which I shall make reference later. Eventually, the respondent conducted a comprehensive reassessment of the case and a further decision was made as long ago as 20 September 2013. On 24 September 2013 the Secretary of State issued removal directions. 4. The appellant appealed against these decisions repeating the claim that his removal would be a breach of his rights under Articles 8 and 9 of the ECHR and s. 13 of the Human Rights Act 1998. 5. First-tier Tribunal Judge Petherbridge promulgated his decision dismissing the appellant’s appeal on 25 May 2014. Subsequent to a successful challenge in accordance with the principles identified in Cart v The Upper Tribunal [2011] UKSC 28, permission to appeal to the Upper Tribunal was granted by Mr C. M. G. Ockelton, the Vice President, on 21 May 2015. In granting permission to pursue the Cart challenge, Singh J identified a double failure to address Article 9 of the ECHR as well as s. 13 of the Human Rights Act. 6. Deputy Upper Tribunal Judge Saini decided on 19 August 2015 that Judge Petherbridge’s decision should be set aside adopting as his reason the Judge’s failure to address Article 9 and s. 13. Both Article 9 of the Convention and s.13 of the Human Rights Act 1998 are largely unfamiliar to practitioners and this is one of the few cases to come before the Tribunal which expressly raises these provisions as a distinct and separate challenge to the respondent’s removal decision. It was only this aspect of the appeal that was pursued before me. The Afghan Community within the United Kingdom 7. Reliance was placed by the appellant and AICC on the general conditions in which the Afghan Muslim community lives in the United Kingdom. A report entitled ‘The Afghan Muslim Community in England - Understanding Muslim Ethnic Communities’ is one of 13 reports on England’s Muslim ethnic communities commissioned by the Cohesion Directorate of Communities and Local Government (CLG). It describes the Afghan community in these broad terms: In Afghanistan the dominant religion has traditionally been the sect of Sunni Islam following the Hanafi School of Jurisprudence. A large proportion of the Sunni population in Afghanistan also adheres to the Deobandi tradition, which is believed to have had a strong influence on the Taliban. The majority of Afghans in the UK are also Sunni Muslims, but there is a significant minority of Shi’a, particularly those of the Hazara ethnic group. There are also reported to be some ‘important Sufi families’ in London and a large Afghan Sikh community. Views about religion are contradictory. Some sources suggest that there is a ‘stricter’ form of Islamic practice driven by people who have arrived during the later stages of the recent conflicts in Afghanistan, as well as a visible tendency towards greater religiosity among young people. Others however suggest that most Afghans in the UK are more culturally Muslim than devout in their religious practice, and that there is a sizeable part of the community with communist sympathies that does not subscribe to any form of religion at all. Culture and ethnicity appear to play a more significant role in the way Afghans identify themselves than religion. Most respondents expressed their relationship with Islam as something personal and in the background, something that informs their values and attitudes to life, but which does not play an outwardly visible role. In the past, Afghans attended mosques established by other communities, including contributing to the building of mosques in collaboration with other Muslim groups. However Afghan cultural practices, particularly funereal rites, differ substantially from those of other Muslim communities, and this factor is thought to have contributed significantly to the development of separate mosques for the community. It certainly seems to have been a strong influential factor in the decision to build the Afghan mosque in Neasden, along with pressure from other communities concerning accepted rituals and forms of worship. 8. Reliance, in particular, is placed on the passage above which refers to the differences in practice between Afghan Muslims and others: ‘ Afghan cultural practices, particularly funereal rites, differ substantially from those of other Muslim communities ’. Facts 9. There is very little dispute about the activities performed by the appellant. These are described in his statement dated 2 May 2014. The appellant described how over the years, he had established strong links with the Afghan community in the United Kingdom. For many years, he had performed the voluntary work for the AICC and has built up strong and close relationships with many people there and in the Afghan embassy. He describes how he performed this voluntary work out of a desire to help others. In paragraphs 20 to 24 of his statement he describes his activities as including helping and advising the community on Islamic issues, organising prayer times, leading the congregation in daily prayers and congregate Friday prayers. In particular, he led prayers during Ramadan reciting the Qu’ran which he has committed to memory in its entirety (a Hafiz, lit. a guardian or memoriser of the Qu’ran). He also assists families with funerals, arranging memorial services, participating in and leading the ceremonies for the dead and visiting families in their homes. He assists in mediating in domestic problems. He conducts Islamic Nikah ceremonies in what he asserts is a somewhat complex procedure for which he is qualified (and has been for the last six years). In addition he teaches over 100 children at the AICC. He works with the young and with the local police on issues concerning youth, street crimes and public disorder. He is concerned with the building of community relations as well as seeking to build a more unified Muslim community in the United Kingdom. At present, he is not permitted to take up paid employment. The above description of his functions is confirmed by a number of witnesses who have made statements. 10. The material in support of the appellant’s claim included a petition, letters of support from various Afghan community associations, correspondence from, and to, members of Parliament and numerous other supporting letters from councillors, solicitors, friends and supporters. This support included a Note Verbal dated 15 April 2014 from London’s Ambassador at the embassy of the Islamic Republic of Afghanistan. 11. Although the ambassador is plainly speaking only in a personal capacity, his words echoed much of what others had said. He spoke of his contact with the appellant through the embassy. Embassy staff visited the AICC during the last 10 days of Ramadan in 2013. There, the prayers were led by the appellant who also leads the weekly Friday prayers at the AICC and funeral prayers. He also leads a regular weekly service on Sundays at the AICC. The embassy was so much impressed by the appellant's recitation of the Qu’ran that, in the Note Verbal of 15 April 2014, the ambassador spoke of inviting him to recite suitable verses at large events or anniversaries. The appellant also acts providing advice on issues within the Afghan community and, as a minister of religion, the appellant is appreciated throughout the Afghan community. He teaches at the Madrasa. He speaks Pashtu and Dari fluently, which is said to be rare. 12. The bundle supplied by the appellant's solicitors on 6 May 2014 contains over 100 pages of witness statements and letters of support. It includes support from the Chairman and the Trustees of the AICC. He is described as having a strong charismatic personality with a good positive influence upon those around him. I have no reason to doubt the high regard in which the appellant is held by the Afghan Muslim community. 13. More recently there has been unfortunate division amongst the Muslim community and on 6 March 2016, according to the evidence of Mr Zubair Mohammadi, the Secretary of the AICC, a group of its members attempted to stage a coup against the board of the AICC. He has been locked out of his office. He described how the situation became quite ugly and the police were called. Fortunately no violence ensued. Mr Mohammadi maintains his view that the AICC could not function without the appellant and cites the view of those involved in the attempted coup that, although they tried to depose the appellant, they could not do so because there was nobody to replace him. 14. Mr Mohammadi describes the AICC placing an advertisement in the Eastern Eye newspaper in which a replacement for the appellant is advertised in these terms: Wanted: Farsi-Pashto Speaking Imam Salary - £27,000 per annum Minimum requirements-the applicant must: • Be an experienced Hafiz and Qari (i.e. must have memorised all Holy Qu’ran with correct recitation) • Be fluent in Farsi and Pashto • Have minimum three years experience as an imam in a mosque • Have minimum three years of experience in teaching Holy Qu’ran and Islamic Studies to kids • Possess high degree of Islamic etiquette • Provide minimum five references from the prominent members of the Afghan Muslim community in London Main duties • Leading all daily prayers • Teaching Holy Qu’ran and Islamic Studies to children • Carrying out marriage and funeral services etc 15. Mr Mohammadi told me there had been no response to that advertisement. In addition, in paragraph 10 of his statement of 2 May 2014 [Tab B pages 52-3] he had said that, in response to advertisements, he had received 8 applications and had interviewed 5 candidates from the Afghan community as well as other nationals. The candidates interviewed were either not Hafiz of the Qu’ran or had little knowledge of Afghan cultures and could not speak Pashto and Dari or understand Islamic law. The Secretary of State’s response 16. The appellant’s work is not disputed by the respondent. However, the issue arises as to whether the applicant is, in effect, irreplaceable. If he is not absolutely irreplaceable, the respondent contends the appellant and the AICC have failed to establish he cannot be replaced for all reasonable and practical purposes. 17. The Secretary of State relies upon the appellant’s poor immigration history and the public interest in the removal of those who have flouted immigration law, the fact that the Immigration Rules permit ministers of religion (a wide-ranging term that would include the appellant) to enter the United Kingdom lawfully and that there are in any event some 56,000 Afghans in the United Kingdom as a potential source of recruitment for an individual to replace him. She points out that there has been no extensive national or international effort at recruitment. Further, the respondent noted that the appellant’s educational background is limited: he arrived in the United Kingdom at the age of 17 or 18 and had only previously received 3½ years study at a Madrasa. The Convention and Statutory Provisions 18. Article 9 ECHR states as follows: ARTICLE 9 Freedom of thought, conscience and religion 1. Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance. 2. Freedom to manifest one’s religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others. 19. A distinctive feature of the Human Rights Act’s treatment of the right to freedom of thought, conscience and religion is to place it in a distinct category of protection and to create a statutory right which is independent of the Article 9 Convention right. This is found in s.13: 13. Freedom of thought, conscience and religion (1) If a court’s determination of any question arising under this Act might affect the exercise by a religious organisation (itself or its members collectively) of the Convention right to freedom of thought, conscience and religion, it must have particular regard to the importance of that right. (2) In this section “court” includes a tribunal. 20. It is first necessary to consider the relationship between Article 8 and 9. The two Articles are quite separate; nether one is subservient to the other. Any suggestion that the appellant’s Article 8 rights were improperly assessed by reason of the failure to consider his Article 9 rights is misplaced. An individual’s Article 9 rights are free-standing. So much is clear from s. 1 of the Human Rights Act which incorporates the ECHR into domestic law and does so without creating a hierarchy of rights such that Article 9 rights are seen as a constituent part of the individual’s Article 8 rights: 1 The Convention Rights E+W+S+N.I. (1)In this Act “the Convention rights” means the rights and fundamental freedoms set out in— (a)Articles 2 to 12 and 14 of the Convention, 21. The Convention rights are domesticated into United Kingdom law by s.6: 6 Acts of public authorities E+W+S+N.I. (1)It is unlawful for a public authority to act in a way which is incompatible with a Convention right. 22. Turning to s. 13 of Human Rights Act, the reference to the ‘importance of the right’ to freedom of thought, conscience and religion is striking in that no other Convention right is afforded this treatment. 23. Secondly the right to freedom of thought, conscience and religion is protected not only for the benefit of individuals but organisations: ‘a religious organisation…itself’ . This is something of a contradiction in terms: a human right enjoyed by an organisation . This is comprehensible by reference to the members of an organisation enjoying human rights but s. 13 goes further by distinguishing between the human rights of its members and the human rights of the organisation: ‘ a religious organisation (itself or its members collectively) ’. Thus, for example, the Church of England has the Convention right to freedom of thought, conscience and religion alongside its members collectively and individually. 24. Section 13 of the Human Rights Act appears to be the result of the decision of the ECtHR in X and the Church of Scientology v Sweden (Case 7805/77) in which the Court considered, as a preliminary issue, whether the Church of Scientology, which had legal personality, was capable of exercising Article 9 (1) rights. The Commission, reversing its earlier position, considered that the distinction between Church and its members was essentially artificial. The Court upheld the Commission’s revised view: the church in its application was in reality doing so on behalf of its members. 25. Thirdly, s.13 is itself free-standing. It is entirely separate from the domestication into United Kingdom law of the ECHR. Hence the right to freedom of thought, conscience and religion is protected by two independent sections of the Human Rights Act: s.6 and s.13. In granting permission Deputy Upper Tribunal Judge Saini said The Tribunal erred in its consideration of Article 8 in relation to the appellant’s functions for the Afghan Islamic Cultural Centre (“AICC”) and the effect his removal will have upon the Article 9 ECHR rights of the congregation through s. 13 HRA 1998. 26. Insofar as this passage might suggest there was a correlation between Article 8 and 9 such that the Article 9 claim is advanced through the medium of Article 8 and, further, that Article 9 is the prism through which s.13 is assessed, I have concluded that this is not the correct analysis of the relationship between these various provisions for the reasons I shall later give. Each is independent of the other and requires separate assessment. 27. Fourthly, it is directed towards Courts and Tribunals. They alone bear the statutory duty to apply it. Nevertheless, out of a due sense of deference, decision makers themselves might properly take its provisions into effect, if they are not already doing so. Articles 8 and 9 compared 28. Both Article 8 and Article 9 are expressed in terms that are not absolute. Each is a qualified right. However, the qualified nature of the right is expressed in different terms. This is best demonstrated by a synoptic version of the two Articles: 29. It is readily understandable that an individual’s human rights may be outweighed by the economic well-being of the country: hence a claim to remain which operates as a burden upon the state may be a legitimate reason for refusing the claim; it is often expressed as the public interest in maintaining immigration control. The economic well-being of the country is however omitted from the factors that qualify the right to freedom of thought, conscience and religion. Whilst the concept of a right to freedom of thought, conscience and religion can less obviously be seen as operating in the realm of economic activity (the biblical antithesis, perhaps, between God and mammon) the fact that a person who claims the right to exercise his freedom of religion may result in his being a burden on the state or the public at large is just as significant a factor in an Article 9 case as it is in an Article 8 case. The applicability of the Razgar test 30. The concept of proportionality nowhere finds expression in the qualified nature of an individual’s Article 8 or 9 rights. It is most often articulated in Article 8 cases by reference to Lord Bingham’s 5-stage approach identified in paragraph 17 of Razgar [2004] UKHL 27: In considering whether a challenge to the Secretary of State's decision to remove a person must clearly fail, the reviewing court must, as it seems to me, consider how an appeal would be likely to fare before [the First-tier Tribunal], as the tribunal responsible for deciding the appeal if there were an appeal. This means that the reviewing court must ask itself essentially the questions which would have to be answered by [the First-tier Tribunal Judge]. In a case where removal is resisted in reliance on Article 8, these questions are likely to be: (1) Will the proposed removal be an interference by a public authority with the exercise of the applicant's right to respect for his private or (as the case may be) family life? (2) If so, will such interference have consequences of such gravity as potentially to engage the operation of Article 8? (3) If so, is such interference in accordance with the law (4) If so, is such interference necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others? (5) If so, is such interference proportionate to the legitimate public end sought to be achieved? 31. Such a structured approach to the assessment of a human rights claim has equal force when considering Article 9 save of course for the omission of the economic well-being of the country criterion in Article 9.