Case No. UKUT-00286-(IAC)

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.