Community religious rights and Article 9 ECHR: Hamat

In Hamat (Article 9 – freedom of religion: Afghanistan) [2016] UKUT 286 (IAC) the nub of the argument was whether or not the actions of Home Secretary Theresa May in refusing to grant asylum to Mr Hamat, an Afghan who had been working as the de facto imam of the Afghanistan Islamic Cultural Centre, had violated the Article 9 rights of the Afghan community to choose its own religious leaders.

Background

S 13 (Freedom of thought, conscience and religion) of the Human Rights Act 1998 declares that:

“If a court’s determination of any question arising under this Act might affect the exercise by a religious organisation (itself or its members collectively) of the Convention right to freedom of thought, conscience and religion, it must have particular regard to the importance of that right.”

Mr Hamat, a citizen of Afghanistan, was an illegal immigrant: his asylum claim and subsequent appeal were dismissed and reconsideration was refused. His statutory rights of appeal became exhausted in October 2007 and in February 2011, he was unsuccessful in his petition for judicial review [1]. The Afghanistan Islamic Cultural Centre (AICC) sought to intervene as an interested party in support of further submissions that resulted in a hearing on 11 November 2011 at which permission to seek judicial review was ordered. It was argued that the Secretary of State had unlawfully failed to take into account the benefit that Mr Hamat provided to the Afghan community and the impact on the community of his removal. Mrs May agreed to reconsider the claim but again rejected it; and at the subsequent appeal hearing, Mr Hamat withdrew his asylum claim as well as his claims under Articles 3 and for humanitarian protection [2].

He then appealed under Articles 8 and 9 ECHR and s 13 Human Rights Act 1998: after a comprehensive reassessment of the case, on 24 September 2013 the Secretary of State issued removal directions. Mr Hamat then appealed again, arguing once more that removal would violate his rights under Articles 8 and 9 ECHR and s 13 Human Rights Act 1998. That appeal was dismissed; but after further appeals, Singh J allowed him to pursue the challenge, identifying a double failure to address Article 9 of the ECHR and s 13 HRA [3-6]. Deputy Upper Tribunal Judge Saini decided on 19 August 2015 that the decision of the lower tribunal should be set aside. The Article 9 and s 13 points then came before Upper Tribunal Judge Jordan, in the present proceedings.

UTJ Jordan noted that this was one of the few cases that raised Article 9 and s 13 as a distinct and separate challenge to the Secretary of State’s removal decision; and that was the only element of the appeal that was pursued before him [6]. There was very little dispute about Mr Hamat’s activities. He had done voluntary work for the AICC: helping and advising on Islamic issues, organising prayer times, leading the congregation in daily and Friday prayers and, during Ramadan, reciting the Qu’ran, which he had memorised in its entirety. He also conducted Islamic nikah wedding ceremonies and assisted families with funerals, memorial services and pastoral visits. At present, he was not permitted to take up paid employment [9]. In response, the Secretary of State contended that Mr Hamat was not absolutely irreplaceable and that there was a public interest in removing those who had flouted immigration law [16 & 17].

The judgment

UTJ Jordan noted that s 13 HRA 1998 (Freedom of thought, conscience and religion) put freedom of thought, conscience and religion in a distinct category of protection and created a statutory right independent of  Article 9:

“(1) If a court’s determination of any question arising under this Act might affect the exercise by a religious organisation (itself or its members collectively) of the Convention right to freedom of thought, conscience and religion, it must have particular regard to the importance of that right.

(2) In this section, ‘court’ includes a tribunal.”

No other Convention right was afforded that treatment [22]; and the protection applied to organisations as well as to individuals [23]. Article 8 and Article 9 were quite separate: “neither one is subservient to the other. Any suggestion that the appellant’s Article 8 rights were improperly assessed by reason of the failure to consider his Article 9 rights is misplaced” [20]

A decision required him to consider 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” [52].

He concluded:

  • that the public interest criteria which came into play had to be assessed having regard to the views of the AICC and its members [81]; but,
  • that the public interest in Mr Hamat’s removal outweighed “the keen interest shown by the AICC and its membership” in retaining him [82].

In short:

“… 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” [62].

Though it was an Article 9 claim, it did not operate in a markedly different way from the proportionality exercise in the related Article 8 case; nor did it favour the AICC and its members on the issue of Article 9 proportionality [82]. Appeal dismissed.

Cite this article as: Frank Cranmer, "Community religious rights and Article 9 ECHR: Hamat" in Law & Religion UK, 30 June 2016, https://lawandreligionuk.com/2016/06/30/community-religious-rights-and-article-9-echr-hamat/

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