Case No. UKUT-00286-(IAC)

32. In El Majjaoui & Stichting Touba Moskee v. the Netherlands - 25525/03 [2007] ECHR 1124 the Grand Chamber of the European Court of Human Rights considered an application by the Dutch authorities to strike out the applicant’s claim to which the Court acceded. It did not therefore consider that the Court was required to continue to a full examination of the application. The principal applicant was a Moroccan national but the mosque (Stichting Touba Moskee) in which he worked as an imam had legal personality under Netherlands law and joined in the application to the ECHR. Together, they alleged that the refusal to issue a work permit to the applicant to enable him to work as imam for the mosque constituted an unjustified interference with their right to freedom of religion as guaranteed by Article 9 of the Convention and was also in violation of Article 18 of the Convention. Dutch domestic law provided that a work-permit was to be refused where there was an available supply of ‘priority labour’ (loosely similar to the resident labour test) and if the vacancy had not been previously notified to the Dutch equivalent of the Jobcentre. This latter requirement had not been met and, in refusing the application, it was said that insufficient steps had been taken to find priority workers to fill the vacancy. The Dutch government stated that Article 9 could not be construed as entitling a religious community to employ as a teacher and minister of religion a foreign national who did not meet statutory requirements set for the purpose of preserving peace and public order, the rough equivalent of the public interest in maintaining immigration control. 33. The Dutch government applied to strike out the claim under Article 37 because in the course of the proceedings, the government informed the Court that a new application for a work permit on behalf of the applicant had been successful; a work permit had been issued because the foundation had established that the statutory requirements necessary which included that the mosque had then established it had made sufficient efforts to fill the position with priority labour and had notified the authorities in due form of the vacancy. Indeed, the applicant had been granted a residence permit. In resisting the attempt to strike out the claim, the applicants relied on the fact that the principal applicant had effectively been deprived of his work as an imam, and the local Moroccan community had been deprived of an imam, until the work permit was finally issued. 34. In its decision to strike out the claim without a full consideration of the merits, the Court asked itself two questions, the second of which was whether the applicants had been provided with sufficient redress. The Court stated in paragraph 31 of its decision: As regards the second question, the Court considers that the mere fact that the applicant foundation had to comply with certain requirements before it was able to employ the applicant does not as such raise an issue under Article 9. The Court agrees with the former Commission that that provision does not guarantee foreign nationals a right to obtain a residence permit for the purposes of taking up employment in a Contracting State, even if the employer is a religious association (see Hüsnü Öz v. Germany , no. 32168/96, Commission decision of 3 December 1996). After all, the Convention does not lay down for the Contracting States any given manner for ensuring within their internal law the effective implementation of the Convention. The choice as to the most appropriate means of achieving this is in principle a matter for the domestic authorities, who are in continuous contact with the vital forces of their countries and are better placed to assess the possibilities and resources afforded by their respective domestic legal systems (see Swedish Engine Drivers' Union v. Sweden , judgment of 6 February 1976, Series A no. 20, p. 18, § 50; Chapman v. the United Kingdom [GC], no. 27238/95, § 91, ECHR 2001-I; and Sisojeva and Others , cited above, § 90). 35. Thus, in a somewhat oblique way in the course of an application to strike out, the ECtHR gave its view on the scope of, and limitations upon, the right to freedom of thought, conscience and religion. The decision had followed the decision using its earlier procedure in Cha'are Shalom Ve Tsedek v. France 27417/95 [2000] ECHR 351 in which a Jewish liturgical association, Cha'are Shalom Ve Tsedek, alleged a violation of Article 9 of the Convention on account of the French authorities' refusal to grant it the approval necessary for access to slaughterhouses with a view to performing ritual slaughter in accordance with the ultra-orthodox religious prescriptions of its members. The French authorities had granted approval to an organisation (the ACIP) that satisfied the majority of the Jewish community in France but the applicants were not satisfied this resulted in the slaughtered meat being ritually pure. In France, as in many other European countries, the ritual slaughter required by Jews and Muslims for religious reasons came into conflict with the principle that an animal to be slaughtered, after being restrained, must first be stunned in order to spare it any suffering. Ritual slaughter was nevertheless authorised under French law but might only be performed by authorised slaughterers and the applicant had not obtained that authorisation. 36. The Conseil d'Etat had in another earlier case held: In requiring ritual slaughter performed under conditions derogating from the provisions of ordinary law to be carried out only by ritual slaughterers authorised by religious bodies approved by the Minister of Agriculture on a proposal by the Minister of the Interior, the Prime Minister did not interfere in the affairs of religious bodies and did not infringe the freedom of worship but took the measures needed for exercise of that freedom in a manner consistent with public policy . 37. The de facto monopoly enjoyed by the ACIP with regard to ritual slaughter was not, however, the result of any deliberate intention on the part of the State, which would not have failed to grant the approval sought by the applicants if it had been able to prove that it was essentially a religious body and had wider support within the Jewish community. The fact that the exceptional rules designed to regulate the practice of ritual slaughter permit only ritual slaughterers authorised by approved religious bodies to engage in it did not in itself lead to the conclusion that there has been an interference with the freedom to manifest one's religion. The Court considered, like the Government, that it was in the general interest to avoid unregulated slaughter, carried out in conditions of doubtful hygiene, and that it was therefore preferable, if there is to be ritual slaughter, for it to be performed in slaughterhouses supervised by the public authorities. Importantly, the Court held: In the Court's opinion, there would be interference with the freedom to manifest one's religion only if the illegality of performing ritual slaughter made it impossible for ultra-orthodox Jews to eat meat from animals slaughtered in accordance with the religious prescriptions they considered applicable. 38. That was not the case because the applicants would easily obtain supplies of ritually pure meat in Belgium. Furthermore, there was evidence that a number of butcher's shops operating under the control of the ACIP made ritually pure meat available to Jews. Two strands might be detected in this decision. First, the Convention right to freedom of thought, conscience and religion includes the practical implementation of that belief in the form of religious practice or ritual (that is, it was not simply a freedom of thought ) and secondly a distinction was drawn between circumstances where the domestic regulation rendered the observance of religious practice or ritual impossible and those where practical observance remained possible, through constrained by domestic legislation lawfully imposed.