Hamat (Article 9 — Freedom of Religion)
| Jurisdiction | UK Non-devolved |
| Judge | UPPER TRIBUNAL JUDGE |
| Judgment Date | 06 June 2016 |
| Neutral Citation | [2016] UKUT 286 (IAC) |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Date | 06 June 2016 |
[2016] UKUT 286 (IAC)
Upper Tribunal
(Immigration and Asylum Chamber)
THE IMMIGRATION ACTS
UPPER TRIBUNAL JUDGE Jordan
For the Appellant: Mr S. Saeed, Solicitor Advocate for Aman Solicitors
For the Respondent: Mr S. Kandola, Senior Presenting Officer
Hamat (Article 9 — freedom of religion)
(i) Article 9 - the right to freedom of thought, conscience and religion – is a distinctive feature of the Human Rights Act to be considered separately from Article 8 when it applies.
(ii) Article 9 permits the same structured approach to the assessment of an Article 8 human rights claim identified by Lord Bingham in his 5-stage approach set out in paragraph 17 of Razgar [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.
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.
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.
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.
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.
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.
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.
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.
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’.
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...
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Upper Tribunal (Immigration and asylum chamber), 2016-06-06, [2016] UKUT 286 (IAC) (Hamat (Article 9 – freedom of religion))
...ar-SA } a:link { color: #0000ff } Upper Tribunal (Immigration and Asylum Chamber) Hamat (Article 9 – freedom of religion) [2016] UKUT 00286 (IAC) THE IMMIGRATION ACTS Heard at Field House Promulgated On 18 March 2016 ………………………………… Before UPPER TRIBUNAL JUDGE JORDAN Between Mr KASHMIR KHAN H......