Hamat (Article 9 – freedom of religion): UTIAC 6 Jun 2016

Article 9 – Freedom of Religion : Afghanistan
(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 t he 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.

ordan UTJ
[2016] UKUT 286 (IAC)
Bailii
Immigration Rules, European Convention on Human Rights 9
England and Wales

Immigration

Updated: 18 January 2022; Ref: scu.565878