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Immigration tribunal dismisses freedom of religion case for Afghan imam


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Interesting case where the appellant did not run a Refugee Convention or Article 3 ECHR case against his removal, instead relying on Article 9 ECHR, the right to freedom of religion. He argued that his religious work for and with the Afghanistan Islamic Cultural Centre in the UK, of which he had become the leader, engaged Article 9 and his case was supported by a 1,000 name petition and over 100 pages of letters of support, including one from the Afghan ambassador. The tribunal referred to the case of UE (Nigeria) & Ors v Secretary of State for the Home Department [2010] EWCA Civ 975 on the positive contribution a person could make being relevant to the balancing exercise and also took into account the appellant’s poor immigration history before dismising the appeal:

…it would be a curious result if, as a result of a petition containing 1000 signatures, the system of United Kingdom law and regulation were to be suspended. That does not mean those who petition should not influence legislators or local councillors or decision makers. Their views should be taken into account. That however is a far cry from claiming that their views should be determinative or, indeed, very influential; all the more so when the interest they represent is local, perhaps even parochial.

The official headnote:

(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 fromthe 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.

Source: Hamat (Article 9 – freedom of religion : Afghanistan) [2016] UKUT 286 (IAC) (6 June 2016)

Interested in refugee law? You might like Colin's book, imaginatively called "Refugee Law" and published by Bristol University Press.

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Colin Yeo

Immigration and asylum barrister, blogger, writer and consultant at Garden Court Chambers in London and founder of the Free Movement immigration law website.