Case No. UKUT-00286-(IAC)

was (and remains) hampered by this poor immigration history. Attention therefore focuses on the intervention of the Afghanistan Islamic Cultural Centre (AICC) and the effect that the appellant’s removal will have on it as an a organisation and as acting on behalf of the Afghan Muslim community in the United Kingdom, and London in particular. 52. This decision requires consideration to be given to the following elements: (i) The AICC as a religious organisation. (ii) The effect of the appellant’s positive contribution to the Afghan Muslim community in the United Kingdom and its interface with the wider community. This positive contribution is, not inappropriately, sometimes referred to as ‘good works’. (iii) The claim by the AICC of an unlawful interference with its freedom of choice in the selection of a minister. (iv) Findings of fact in relation to the availability of a replacement to serve the needs of the Afghan Muslim Community in the event of the appellant’s departure. (v) The competing interests of the Afghan Muslim community in retaining the presence of the appellant and preserving the benefits he provides to the community on the one hand and, on the other, the wider community whose interests the Secretary of State represents in the maintenance of a system of immigration control. 53. I shall deal with each of these matters in turn. The AICC as a religious organisation 54. Judge Petherbridge was not satisfied that the AICC was a religious organisation. I have not explored what material was before him although in finding that there was a material error of law, Judge Saini referred to the statement of Mr Hanafi and the AICC Chairman which cumulatively reflected upon whether the organisation was one that is principally or substantially religious in character, thereby engaging Article 9. Judge Saini found the First-tier Tribunal Judge failed to have due regard to this material. 55. I suspect that I have a much more complete picture. In a supplementary bundle there is a Certificate of Registration of a Place for Religious Worship in the registration district of Brent. The certificate emanates from the General Register Office in Southport and states that the premises are registered as a place of meeting for religious worship in accordance with the Places of Worship Registration Act, 1855. There are also entries provided by the Charity Commission in relation to the Afghan Islamic and Culture Centre naming the trustees, the date of registration, the adoption of the Constitution and providing that its charitable object is to advance Islamic religion in accordance with the teachings of the Qu’ran and Sunnah Prophet Mohammed (S.A.W.) to the Muslim community. I have no doubt that the Judge would have reached a different conclusion had he seen these documents. In addition, the Constitution of the AICC has been provided, the object of which (alongside offering facilities for recreation and leisure in the interests of social welfare) is that of advancing Islamic religion to the Muslim community. There is, therefore, overwhelming evidence that this is both an organisation in the sense that it is a legal entity as well as a religious organisation. 56. For my part, I would not regard it as a requirement of the definition of religious organisation that the organisation should have a legal personality. Whilst many religious communities or organisations may well have a distinct legal personality, it may not always be the case. Some may have charitable status such as to provide them with a legal personality but not all will. However, an established community of believers (or, perhaps, non-believers) whose activities are organised in the sense of having a group of elders, a board or governing committee might well be able to establish that, collectively, it is an organisation sufficient for the purposes of s. 13. The purpose, I assume, of making reference to an organisation is that, if the organisation may properly be treated as a separate entity, the elders, board or committee are able to speak as a collective voice on behalf of the community as a whole and thereby carry greater weight than the individual members who write or speak. Whilst the weight that is to be attached to the voice of an organisation will depend upon the specific circumstances of that organisation, its membership and decision-making capability (and will vary from case to case), it is reasonable that a religious community as a whole should have its views and interests taken into account. Good works and the appellant’s activities as a benefit to the community 57. In UE (Nigeria) & Ors v Secretary of State for the Home Department [2010] EWCA Civ 975, the Jjudge took into account the fact that the appellants had known for many years that they had no legal status in the United Kingdom and had taken no steps to bring themselves to the attention of the authorities for two-and-a-half years after their return from Ireland. In addition he took account of the effect of removal on each of the appellants in terms of their individual activities: in one case as a writer, poet and performer; in other cases on their educational progress and their work and cultural activities. The judge was not, however, prepared to put into the balancing exercise the value of the appellants' various activities to the community in the United Kingdom. The question for the Court of Appeal was whether it was relevant on any basis that the person in question is of value to the community in the United Kingdom, a value of which that community would be deprived if he were to be removed. 58. Sir David Keene described this as a separate consideration from the consequences for the appellant himself but concluded that it was a material and lawful factor: 9. It should be noted that this is a different question from asking what would be the impact on the individual in question of removing him, even though that question also would involve considering the extent to which he may have been involved in community activities. That latter question is directed at ascertaining the strength of the individual's own ties to this country and the degree, consequently, of private life which he has established here, whether in terms of friends, education, work or leisure activities. That latter question considers the extent to which his right to private life would be interfered with by removal, an issue which arises both under Article 8(1) and then if there would be such interference again under Article 8(2) as part of the balancing exercise. But the first question, that now under scrutiny, is dealing with the effect of his removal on the community in the United Kingdom… . 35. For my part, therefore, I conclude that it is open to this court to find that the loss of such public benefit is capable of being a relevant consideration when assessing the public interest side of proportionality under Article 8 and as a matter of principle I do so find. That is where this aspect comes into the proportionality exercise. 59. Richards LJ, though saying that there was very little between himself and Sir David Keene on the issue, did in fact articulate the approach is somewhat different terms: 40. Factors are relevant to the assessment of proportionality under Article 8 in such a case only in so far as they impact either on the weight to be given to the maintenance of effective immigration control or on the weight to be given to the individual's private life. It is not a question of dropping into the scales all aspects of the public interest for or against removal or anything that might be relevant to the exercise of a discretion under the statute or Immigration Rules. It is a more specific and targeted exercise. 41. For those reasons I consider that contribution to the community is not a freestanding or stand-alone factor to be put into the Article 8 balance as an independent consideration in its own right. It can affect the balance only in so far as it is relevant to the legitimate aim or the private life claim. 42. It is common ground that community activities may affect the strength of the private life claim, and this was something that the Immigration Judge had properly in mind in his determination. 43. As to the other side of the balance, in MA (Afghanistan) [2006] EWCA Civ 1440 at paragraph 28 Moses LJ suggested that "It may well be that the benefit of the community of the work performed by the applicant diminishes the weight to be given to the public interest in immigration control." So far as I can recall and can discern from the material we have been shown, that judgment was not drawn to the court's attention, and the possibility of contribution to the community being factored into the analysis in that way was not explored or even raised, in RU (Sri Lanka) [2008] EWCA Civ 753 . Faced with the issue in the present case, however, I would accept that the matters relied on here by way of contribution to the community are indeed capable in principle of affecting the weight to be given to the maintenance of effective immigration control. I agree that that public interest aim can and should be viewed sufficiently widely and flexibly to accommodate such considerations. But they do not have as obvious a bearing as, for example, delay by the Secretary of State in processing a claim or the applicability of a specific immigration policy favouring the applicant, and I doubt if they would in practice carry a lot of weight even on the relatively favourable facts of the present case. But I do agree that they should not be excluded from consideration altogether. 60. This line of reasoning must apply with equal force to Article 9 cases but there is this difference: s. 13 of the Human Rights Act provides the express requirement that in any question arising under the Human Rights Act that might affect the exercise by a religious organisation of the Convention right to freedom of thought, conscience and religion, it must have particular regard to the importance of that right. This is an express requirement of the religious community’s interests as distinct from those of the appellant. Unlawful interference with the AICC’s freedom of choice 61. The appellant claims that the actions of the respondent amount to interference with the AICC selection of a religious leader. In so submitting they rely upon the decision of the ECtHR in Hasan and Chaush v. Bulgaria , 30985/96 [2000] ECHR 511. This case concerned the actions of the Bulgarian government in relation to what the two applicants said was the forced replacement of the leadership of the Muslim religious community in Bulgaria. One of the applicants was the Chief Mufti of the Bulgarian Muslim who claimed that the state authorities had interfered in the organisational life of the Muslim community by refusing to register its leadership which had been elected. The Court found that the authorities had failed to remain neutral and that led to the conclusion that they violated Article 9; the government had proclaimed changes in the leadership of the Muslim community which were not justified. 62. The application of Hasan and Chaush v. Bulgaria , 30985/96 [2000] ECHR 511 does not assist the appellant in this appeal. Whilst the effect of the appellant’s removal inevitably has the effect of depriving the AICC and its membership of the imam of their choice, this was not the motive of the respondent’s actions (unlike the motive of the Bulgarian authorities which was to deprive the applicant of his position). In contrast, the United Kingdom authorities were applying immigration law as they saw it to be. Even if they were wrong, the decision had not interfered with the freedom of choice of the Afghan Muslim community because their actions have not been prompted by a wish to favour one imam over another. The personality of the appellant has not influenced the decision: anybody in the same position as the appellant who does not meet the requirements of the Rules is likely to be refused. The availability to the Afghan Muslim Community of finding a replacement 63. It must be noted that the appellant and, more importantly, the AICC and the worshipping community served by the appellant have a lawful route available to secure the care of the appellant or another imam. The requirements or attributes for Tier 2 (Ministers of Religion) Migrants are set out in Appendix A 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.