Kashmir Khan Hamat v The Secretary of State for the Home Department

Article 9 is a free-standing Convention right and must be assessed separately from Article 8 where it applies. The structured proportionality approach used for Article 8 claims applies to Article 9, subject to the omission from Article 9(2) of economic well-being as a listed legitimate aim.

In a removal case alleging interference with religious freedom in the United Kingdom, proportionality applies. The heightened test of a flagrant denial or gross violation concerns violation alleged to occur abroad. Section 13 of the Human Rights Act 1998 protects a religious organisation and its collective membership independently. Community benefit may reduce the weight of immigration control but normally carries limited weight. Neutral operation of immigration rules does not unlawfully select a religious leader where the religious community can continue its practice without its preferred minister.

The appellant, an Afghan national and illegal entrant whose asylum and earlier human-rights claims had failed, performed voluntary religious and community functions for the Afghanistan Islamic Cultural Centre (AICC). He led prayers, taught children and assisted with religious ceremonies. The AICC and many members supported his remaining in the United Kingdom.

The Secretary of State refused further human-rights claims and issued removal directions. The First-tier Tribunal dismissed the appeal. Following a successful Cart v The Upper Tribunal challenge, the First-tier Tribunal decision was set aside because it had not addressed Article 9 or section 13 of the Human Rights Act 1998.

The Upper Tribunal reheard only the Article 9 and section 13 issues. The central question was whether removal would disproportionately interfere with the appellant's and the AICC's freedom of religion.

1. Appeal dismissed. Removal interfered sufficiently with Article 9 to engage it, but the interference was lawful, necessary for effective immigration control and proportionate.

2. Article 9 is free-standing and neither subsumed within nor assessed through Article 8. The five-stage approach in Razgar, [2004] UKHL 27, provides an appropriate structure for Article 9, with the omission of economic well-being from Article 9(2). The heightened foreign-case standard in Ullah and Do, [2004] UKHL 26, did not apply because the alleged interference arose from the United Kingdom's removal decision.

3. Section 13 of the Human Rights Act 1998 is independent of Article 9 and section 6. It required particular regard to the importance of religious freedom. The AICC was a religious organisation, and its collective interest was distinct from the appellant's personal claim.

4. Removal did not amount to unlawful state interference in the AICC's choice of religious leader. The decision was a neutral application of immigration law, uninfluenced by the appellant's personality or by a preference for another imam.

5. The AICC had not shown that its religious practice would become impossible without the appellant. It could recruit within the Afghan Muslim population or from abroad under the Immigration Rules. His several functions could be divided among others, even if that was less convenient or more costly. The community had existed before his arrival and would not cease to function on his departure.

6. The appellant's positive community contribution and the AICC's substantial support could reduce the weight of immigration control, but did not outweigh his adverse immigration history. The substituted decision therefore dismissed the appeal on all grounds.

• Upper Tribunal (Immigration and Asylum Chamber): The First-tier Tribunal decision was set aside for failure to address Article 9 and section 13 of the Human Rights Act 1998. The Upper Tribunal remade the decision and dismissed the appeal.

• First-tier Tribunal: Judge Petherbridge dismissed the appeal on 25 May 2014.

• Administrative Court / Cart challenge: Following a successful challenge under Cart v The Upper Tribunal, [2011] UKSC 28, permission to appeal was granted on 21 May 2015. Deputy Upper Tribunal Judge Saini set aside the First-tier Tribunal decision on 19 August 2015.