Freedom of Religion
5 THIS CHAPTER CONSIDERS integration requirements in relation to the right to freedom of religion. While the connection between integration requirements as admission criteria and religious freedom may not be immediately obvious, the inclusion of this chapter was prompted by the fact that, at least in the Netherlands, religious servants form a specific target group of the Act on Integration Abroad (chapter 2, section VI.B.ii). This raises a number of questions, including whether the rights of religious servants or congregations may be affected by admission requirements such as the integration exam abroad and, if so, under which conditions limitations to these rights are allowed. The examination conducted in this chapter addresses several provisions protecting the right to freedom of religion, starting with Article 9 of the European Convention of Human Rights (ECHR) and Article 18 of the International Covenant on Civil and Political Rights (ICCPR). As in chapter 4 on the right to family life, regard is given to relevant interpretations developed in the case law of the European Court of Human Rights (ECtHR) and the jurisprudence of the Human Rights Committee (HRC). In addition to these international provisions, attention is paid to Article 6 of the Dutch Constitution. With regard to each of the above provisions an attempt is made to establish legal criteria for their application in relation to integration requirements. Where available and relevant, account is also taken of interpretations supplied by the Dutch courts. Afterwards, the Act on Integration Abroad is evaluated in the light of the criteria identified. Another question raised in this chapter is whether religious servants may be singled out as a particular target group for the purpose of applying integration requirements, or whether this constitutes discrimination on the grounds of religion. The above provisions regarding freedom of religion are therefore considered, together with those protecting the right to equal treatment (Arts 14 and 1 Twelfth Protocol ECHR, 2 and 26 ICCPR and 1 Dutch Constitution). An assessment of the Act on Integration Abroad in relation to this right is included in section VII.E. In view of the close connection with the right to freedom of religion, this issue is discussed here rather than in the chapters on equal treatment. Article 9(1) ECHR provides that everyone has the right to freedom of thought, conscience and religion. It is specified that ‘this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance’. Limitations to the freedom to manifest one’s religion or beliefs are allowed, provided they are in conformity with the conditions set out in the second paragraph of the Article. As discussed below, there is still little case law available on the applicability of Article 9 ECHR in cases involving the admission of aliens. Nevertheless it is argued that, in certain circumstances, a state’s refusal to admit a religious servant because of failure to comply with an integration requirement can come within the scope of Article 9 ECHR. The conditions under which the freedom of religion may be limited are then assessed in order to formulate criteria for defining integration requirements for religious servants. The freedom of religion as protected by Article 9 ECHR comprises various elements, including the right of the individual to hold (or not to hold) a religion or belief and to act in accordance with this religion or belief, for instance through the observance of religious customs or practices (such as praying, fasting or wearing a headscarf). Article 9 also protects the right to manifest one’s religion or belief in community with others. This ‘collective dimension’ of the freedom of religion includes the right of religious congregations to organise themselves and to manifest their religion in organised settings.1 With regard to the admission of religious servants, it can readily be assumed that Article 9 ECHR does not protect the right of a non-national to be admitted to a State Party in order to exercise his or her freedom of religion on its territory as an individual.2 This follows from the general assumption that the obligation of states to protect fundamental rights is normally limited to persons within their borders and that these fundamental rights do not entail an entitlement to exercise them anywhere in the world. Confirmation of this view can be found in ECtHR case law on the freedom of religion.3 However, the situation described above should be distinguished from one in which the admission of a religious servant is requested on behalf of a religious community in the receiving state. As mentioned above, the right to freedom of religion also has a collective dimension. Subjects of this right include ecclesiastical and religious bodies that are considered to exercise the right guaranteed by Article 9 ECHR on behalf of their adherents.4 ECtHR case law acknowledges that religious communities traditionally exist in the form of organised structures and, therefore, that the freedom of religion includes the freedom to participate in religious communities. Where the organisation of such communities is concerned, Article 9 ECHR must be interpreted in the light of Article 11, which protects the freedom of association. Thus, religious communities must be allowed to operate freely and without unjustified interference from the state. The ECtHR regards the autonomous existence of religious communities as indispensable for pluralism in a democratic society and, therefore, as being at the heart of the protection afforded by Article 9 ECHR.5 With regard to the protection afforded to religious communities, the Court has recognised that the personality of religious leaders is of importance to the members of such communities. In this respect it has concluded on several occasions that state measures favouring a particular person as the leader of a divided religious community were in violation of Article 9 ECHR.6 It can be inferred from this case law that the organisational autonomy of a religious community includes, in principle, the freedom to choose its own leadership. This brings us to the question of whether the refusal to admit a religious servant constitutes interference with the freedom of religion as protected by Article 9 ECHR or, in other words, whether this freedom includes the right to choose a religious leader who does not legally reside in the state where the community is based. This question is addressed below. This issue of the admission of religious servants in relation to the freedom of religion came up relatively recently in a decision by the ECtHR Grand Chamber in the case of El Majjaoui and Stichting Touba Moskee.7 The facts leading up to this case concerned a Dutch religious foundation, the Stichting Touba Moskee, that wanted to employ Mr El Majjaoui, a foreign national, as a religious minister, but was refused the necessary work permit. Dutch immigration law prescribed that such a permit had to be obtained by all employers wishing to employ foreign nationals. The requirement applied, in principle, to all labour migrants in the Netherlands and was not directed specifically at religious workers. After the case had been referred to the Grand Chamber, it was struck out of the list because the Dutch authorities decided to grant the work permit after all. Unfortunately, although the ECtHR in El Majjaoui made some observations concerning the scope of the protection granted by Article 9 ECHR, it failed to go to the heart of the matter. The Court held that Article 9 ECHR does not include a right for religious servants to be granted a work or residence permit; hence any requirements that have to be met before such a permit is granted do not constitute interference with the freedom of religion. It added that the Convention does not lay down for the Contracting States any given manner for ensuring its effective implementation and that the choice as to the most appropriate means of achieving this is in principle a matter for the domestic authorities.8 The text of the judgment does not indicate whether the ECtHR considered only the existence of a right on the part of the applicant or also on the part of the religious foundation.9 In any case, the Court did not address the actual question before it, which did not concern the right to a work permit but instead the right of the religious foundation to appoint Mr El Majjaoui as its minister.10 This omission was pointed out by three members of the Court in a dissenting opinion. While these members agreed that Mr El Majjaoui was not, as an individual, entitled to be admitted to the Dutch domestic labour market, they stated that in certain circumstances a measure which results in a religious community being prevented from appointing the minister of religion of its choice may constitute an interference with that community’s rights under Article 9, even if the minister concerned is a foreign national.11 According to the dissenters, the Grand Chamber should have examined whether the requirements maintained by the Netherlands for the issue of a work permit were compatible with the standards set by Article 9 ECHR, in particular the state’s duty of neutrality. Thereby regard should have been had to ‘the fact that in the choice of a religious minister/pastor/rabbi/imam much will depend on whether the religious community would have confidence in the person concerned’.12 It can be concluded that the ECtHR has not yet recognised that the appointment by a religious organisation of a minister from abroad may come within the scope of Article 9 ECHR. Nonetheless, the dissenters stated that this could be the case ‘in certain circumstances’. It is argued below that there are at least two situations in which refusal to admit a religious servant from abroad can affect the freedom of a religious community as protected by Article 9 ECHR. The first situation is that in which admission is refused with the specific aim of limiting the freedom of religion. The second concerns cases in which denying admission makes it impossible for the community to continue its religious activities. With regard to the argument that refusal to admit a religious servant constitutes an interference with Article 9 ECHR if it is specifically aimed at limiting the freedom of religion, support can be found in ECtHR case law and the decisions of the European Commission of Human Rights (EComHR). In Omkarananda and Öz, the Commission found that Both cases concerned religious servants who worked or sought to work for religious organisations in the respondent states. In Omkarananda the applicant’s residence permit was withdrawn and his deportation sought for reasons of public order. Öz concerned a religious servant of Turkish nationality who had been granted a residence permit to work for a particular religious organisation in Germany. The permit expired automatically upon the ending of his employment, after which he sought a new permit to work with another religious organisation. This request was denied on grounds of general immigration control and foreign policy (as the Turkish government had indicated that it wished the applicant to return to Turkey). The Commission’s approach was subsequently adopted by the ECtHR, as shown in the Court’s judgments in Perry and Nolan and K. In Perry, the applicant (an American citizen) was granted a different residence permit that did not allow him to continue the religious activities he had been performing in Latvia for several years.14 A similar situation occurred in Nolan and K, where the applicant, who had been working for a religious organisation in Russia, was refused re-entry into that country after travelling abroad.15 In both the above judgments, the ECtHR found that Article 9 ECHR had been violated because the measures taken by the state resulted in unjustified interference with the applicants’ freedom of religion.16 It appeared that in both cases the immigration measures had been taken precisely with the aim of ending the religious activities of the applicants, which were considered by the national authorities as constituting a threat to national security or public order. In Nolan and K, the Court repeated the criterion formulated by the Commission that deportation does not . . . as such constitute an interference with the rights guaranteed by Article 9, unless it can be established that the measure was designed to repress the exercise of such rights and stifle the spreading of the religion or philosophy of the followers. Further on, it also stated that It can be derived from the above case law that immigration measures taken against religious leaders constitute interference with Article 9 ECHR if their target is to impede religious activities. On the other hand it can be assumed that immigration measures taken for other reasons, such as common crimes committed by the applicant or a lack of income, will not be considered interference with the freedom of religion. It may also be observed that the above decisions and judgments all concerned claims made by individual religious servants who had already been legally resident in the territory of the respondent states.18 It is submitted that, in such situations, there may be interference with the freedom of religion, even with regard to the individual religious leader, because termination of the work or residence permit interferes with the exercising of religious activities in the respondent state for which permission had previously been given.19 As argued above, this is not the case if the religious servant has not yet been admitted, as there is then normally no reason why he or she should be allowed to practise his or her religion in the particular state. However, the latter argument does not apply with regard to a religious organisation established in the respondent state. Therefore it may be assumed that the criterion formulated, inter alia, in the case of Nolan and K also applies to claims made by religious organisation seeking to appoint a foreign national as a religious leader: where it can be shown that admission is refused in connection with the exercising of religious freedom, such a refusal will come within the scope of Article 9 ECHR. It is submitted that the above criterion can be justified from a theoretical perspective: it respects the competence of Contracting States to control immigration in principle, but provides a correction to ensure that this competence is not abused to restrict the freedom of religion. Yet it must be noted that the criterion may be more difficult to apply in practice. In particular there is a risk that states will be able to ‘cover up’ potential violations of Article 9 ECHR by stating that the refusal of admission was based on reasons not related to religious freedom (but, for instance, to public order). In such cases, it may go beyond the (actual or legal) competence of the judiciary to establish the real reasons underlying the refusal.20 The second situation in which interference with the freedom of religion may be assumed is when the refusal to admit a religious servant would effectively prevent the organisation concerned from continuing its religious activities. This argument was put forward by Vermeulen and Aarrass.21 According to these authors, measures not expressly touching upon the freedom of religion – such as immigration regulations – do not normally come within the scope of Article 9 ECHR unless they have the effect, in a particular case, of rendering the exercise of religious freedom impossible. This may be the case if a religious organisation is unable to find a suitable leader in the country in which it is established and is not allowed to bring in someone from abroad. The above position has not been recognised as such by the ECtHR. Nevertheless, some support for it can be found in the Court’s case law. A similar criterion appears to have been applied in the judgment in Cha’are Shalom ve Tsedek, which concerned a Jewish association prohibited from engaging in ritual slaughter. The Court, taking as a point of departure that the association was in fact seeking the right to obtain glatt meat, determined that the slaughter regulations of the respondent state did not constitute an interference with Article 9 ECHR because it was not made impossible for ultra-orthodox Jews to eat meat from animals slaughtered in accordance with their religious prescriptions. In casu it was established that the applicants could also obtain glatt meat from Belgium.22 A comparable approach can also be found in ECtHR case law on the right to family reunification under Article 8 ECHR. As discussed in chapter 4 (section II.C.ii), an important consideration in the fair balance test in admission cases is whether it would be possible for the family to exercise their family life elsewhere, notably in the country of origin. This consideration can be explained by the assumption that a refusal to allow family reunification should not make it totally impossible to enjoy family life. In cases where the Court found that family life could not reasonably be exercised elsewhere (as, for example, in the case of Rodrigues Da Silva and Hoogkamer) it held that denying permission for family reunification resulted in a failure to comply with a positive obligation under Article 8 ECHR and thus in a violation of that provision. A problem concerning the above approach is that it may be difficult to determine in practice when a religious organisation has no other choice but to engage someone from abroad. Such determination will be hampered by state authorities having to exercise restraint in relation to theological issues in order to maintain a sufficient level of state neutrality.23 It is submitted that while the religious organisation may be expected to give reasons why it is seeking to employ a particular religious servant, the reasons provided will in principle have to be accepted by the responsible state body. As a final point, mention must be made of the argument put forward by Kortmann that the above criterion is too narrow. According to this author, generally applicable immigration rules should in principle be interpreted so as to respect as much as possible the freedom of religious organisations to appoint religious servants from abroad, subject to restrictions based on public order or similar grounds.24 This stance appears to be based on the assumption that this freedom is in principle covered by the right to freedom of religion as protected inter alia by Article 9 ECHR, including when refusal to admit a religious servant would not make it impossible to continue the religious activities of the organisation concerned. The approach favoured by Kortmann would imply a significant limitation of the legal competence of the Contracting States to the ECHR to control the immigration of religious servants. At the reverse of the question of whether such a limitation would be justified is the question of whether it is (still) reasonable to uphold that the opportunities available to religious communities to exercise their freedom of religion are in principle limited to the state in which they are established and, as far as their leadership is concerned, to that state’s community of nationals and legal residents. This is a fundamental question that cannot be given a definite answer here. Nonetheless, it may be noted that the ECtHR does not appear readily inclined to expand the scope of Article 9 ECHR so as to cover the admission of religious servants from abroad. It is submitted that this approach is acceptable as long as provision is made for exceptional situations such as those described above, in which immigration decisions are designed to curb the freedom of religion or in which the exercise of religious activities by a particular community would effectively be rendered impossible.25 As mentioned above, limitations to the freedom to manifest religion or beliefs are allowed, providing they are in conformity with the conditions set out in the second paragraph of Article 9 ECHR. Under this paragraph, limitations to the manifestation of religion or belief must be ‘prescribed by law’ and be ‘necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals or for the protection of the rights and freedoms of others’. These conditions are briefly discussed here, with particular attention for criteria that may be relevant to integration requirements for the admission of religious servants. The condition that a limitation of the freedom of religion must be ‘prescribed by law’ means it must have a basis in domestic law (including international or EU law applicable in the Contracting State). The ECtHR has not formulated any procedural requirements concerning the way in which national legislation must be adopted (for example, by a democratically elected body). Nevertheless, if they are to count as ‘law’ within the meaning of Article 9(2) ECHR, national rules must meet the requirements of ‘accessibility’ and ‘foreseeability’, both of which have been developed to a certain extent in ECtHR case law.26 Regarding the legitimate aims mentioned in Article 9(2) ECHR, it has been observed that these are relatively few compared to those in similar limitation clauses in other Convention articles.27 The aims are all formulated in broad terms, whereby the meaning of ‘protecting public order’ does not differ substantially from that of ‘preventing disorder’ in Articles 8, 10 and 11 ECHR.28 Nonetheless, the ECtHR emphasised in Nolan and K that ‘the exceptions to the freedom of religion listed in Article 9(2) must be narrowly interpreted, for their enumeration is strictly exhaustive and their definition is necessarily restrictive’.29 In this respect, the Court observed that the omission of the aim of protecting national security was not accidental but reflected the primordial importance of religious pluralism as ‘one of the foundations of a “democratic society” within the meaning of the Convention’ and the fact that a State cannot dictate what a person believes or take coercive steps to make him change his beliefs.30 Although ECtHR case law shows that limitations to the freedom of religion are not often found to lack justification because of not serving a relevant legitimate aim, the judgment in Nolan and K demonstrates that this possibility cannot be disregarded altogether. Notwithstanding the above conditions, the validity of limitations to the freedom of religion will largely depend on their level of necessity. According to established ECtHR case law, the requirement that a limitation must be ‘necessary in a democratic society’ implies that it must serve a ‘pressing social need’ and be proportionate in relation to the aim pursued. Thereby the reasons adduced by the state to demonstrate the measure’s necessity must be relevant and sufficient.31 In connection with the above criteria, regard must be had in cases involving the freedom of religion to the requirements of neutrality and impartiality that govern the relationship between church and state. The ECtHR has repeatedly emphasised the role of the state as a neutral and impartial organiser of religious pluralism.32 It may be observed that the concept of neutrality is not uniform and can be applied in different ways, depending on the national context of the Contracting State.33 Nevertheless, interference with Article 9 ECHR will not be considered necessary if, for instance, it favours one religious denomination over another or attempts to enforce religious unity.34 Also, states should not adopt regulations (such as planning provisions) that are directed against minority groups and should ensure that education provided to children is sufficiently objective and pluralistic and does not amount to indoctrination.35 Before examining what the above criteria mean in relation to integration requirements for the admission of religious servants, one more remark must be made. As discussed in chapter 4 (section II.B), in cases concerning the admission of family members the ECtHR has mainly applied the ‘fair balance’ test instead of the ‘necessity’ test of Article 8(2) ECHR. The former makes no clear distinction between the question of whether the refusal to admit an alien comes within the scope of the right concerned and the question of whether a limitation to this right is justified. Instead, what takes place is a general balancing exercise between the interests of the individual applicants (in casu the religious community) and the public interests of the host state. In general, application of the ‘fair balance’ test leaves more scope for justification to the respondent state and hence makes it less likely that a violation of the Convention will be found. In case law on Article 8 ECHR, the ‘fair balance’ test is usually applied in cases involving the admission of family members (which is often considered by the ECtHR as a (potential) positive obligation on the part of the state). It is possible that the Court would take the same approach in cases concerning the admission of religious servants. Thus far, however, the ‘fair balance’ test has not been applied in connection with the freedom of religion and the ECtHR has not devised any criteria to this effect. This chapter consequently proceeds on the assumption that, where Article 9 is applicable, requirements concerning the admission of religious servants must be in accordance with Article 9(2). It may be recalled, however, that admission cases will not normally come within the scope of Article 9 (section II.A); hence, it is not the case that religious servants are in principle entitled to admission, whereas family members are not. Rather, both under the ‘fair balance’ test of Article 8 and the interpretation of Article 9(1) proposed above, a primary issue will be whether the admission of the alien constitutes the only way in which the right to family life or to religious freedom can be exercised. As explained in chapter 4 (section II.B.iii), the scope of the ECtHR’s appraisal of state measures concerning the admission of religious servants is influenced by the margin of appreciation left to the respondent state. The breadth of this margin depends on a range of factors. As the Court regards freedom of religion as being of fundamental importance in a democratic society, limitations to this freedom are normally subjected to strict scrutiny, especially where ‘the need to secure true religious pluralism’ is at stake.36 Nevertheless, there are some areas in which a wider margin of appreciation is applied, due for instance to the different traditions existing between the Contracting States. These include the regulation of relations between church and state.37 Finally, as mentioned in chapter 4, there are also indications that the Court will grant a wider margin of appreciation where immigration or integration policy is concerned. It appears beyond doubt that a general requirement for all religious servants appointed by a religious community to comply with integration conditions would come within the scope of the freedom of religion as protected by Article 9 ECHR. However, as explained above, this is not self-evident where the requirement applies to religious servants who are foreign nationals and have not yet been admitted to the state where the community is based. In this situation, a state decision to deny admission, including when based on failure to comply with an integration requirement, will not normally interfere with the religious freedom of the community, let alone with that of the individual religious servant. It has, however, been argued that there are two situations in which such a decision can nevertheless be covered by Article 9 ECHR. One of these situations is when it can be established that the decision was in fact designed to curb the exercise of religious freedom. General immigration measures, such as the work permit requirement in the El Majjaoui case that applied to all labour migrants, will not easily fall foul of this exception. However this may be different with regard to measures specifically addressing religious servants. In this respect it may be recalled that religious servants constitute a specific target group of the Dutch Act on Integration Abroad because of the presupposed effect of their activities on the process of immigrant integration in the Netherlands. It is their position within the religious community that is believed to give them a certain influence in this integration process, and it is because of this influence that they are required to know the basics of Dutch language and Dutch society. Where integration requirements for the admission of religious servants are based on arguments such as the above, it seems clear that they are not general measures that happen to touch upon the exercise of the freedom of religion, but instead measures specifically enacted in connection with that freedom. Nonetheless, to determine whether integration requirements come within the scope of Article 9 ECHR, careful attention must be paid to the particular nature of such measures. One element to be taken into account is whether, in effect, their aim is to ‘repress’ the exercise of the freedom of religion, as stated by the ECtHR in Nolan and K (section II.A.ii.b). Where this is not the case, it must be asked whether less far-reaching aims, such as a wish to exercise control over the internal organisation of religious communities, are also capable of qualifying a measure as interfering with Article 9.38 A second relevant factor is whether the activities that the state seeks to control or influence are of an essentially religious nature (such as ecclesiastical ceremonies or the interpretation of religious texts) or whether they correspond to tasks that can also be performed by secular bodies (such as social counselling or the provision of charity). Even though the distinction between these types of activities is not always easy to make, the freedom of religion is more likely to be affected if the state measures concern activities that are clearly of a religious nature.39 On the other hand, where the same activities are also performed by secular bodies the question can be raised as to why the measures do not also apply to workers employed by those bodies (section VII.E). The second situation in which, it is argued, admission criteria for religious servants may interfere with the rights conferred by Article 9 ECHR is when a religious community can only continue to exist by appointing a servant from abroad. This criterion can be applied equally with regard to integration requirements. Thus, whether a refusal of admission because of non-compliance with an integration requirement constitutes an interference with the freedom of religion will depend on the alternatives available to the community to find a religious servant within the country. However, the suitability of available candidates is a matter to be decided by the religious community itself as the principle of neutrality requires state authorities to be reticent on this point. If it can be established that the integration requirements imposed by a state do in fact constitute a limitation of Article 9 ECHR, it then has to be determined whether this limitation can be justified. As explained above, this primarily requires there to be a domestic law that prescribes that admission can be refused in the event of non-compliance with integration requirements. This law must moreover be sufficiently accessible and foreseeable. As a second condition, the integration requirements must pursue at least one of the legitimate aims set out in Article 9(2) ECHR (public safety, the protection of public order, health or morals or the protection of the rights and freedoms of others). Whether this condition is met has to be judged in the light of the integration objectives pursued by the Contracting State. However, it is conceivable in principle for integration requirements to have been introduced in pursuit of one of the above interests. In this regard it may be observed that, despite the restrictive reading proposed by the ECtHR (section II.B), the concept of ‘public order’ has been interpreted to include more than the prevention of crime or disturbances of the physical environment. In the case of Serif, for instance, the respondent state (Greece) claimed that, by protecting the authority of a lawfully appointed religious leader (mufti), it sought to prevent disputes between different religious factions and to protect its international relations with Turkey. The ECtHR consequently accepted that the interference at stake served the protection of public order.40 It has also been argued, on the basis of the Leyla Sahin case concerning the ban on Islamic headscarves at Turkish universities, that the concept of public order also includes the constitutional principles on which a state is founded (such as the principle of secularism in Turkey).41 In view of the above, it seems plausible that the notion of ‘public order’ in Article 9(2) ECHR would also cover integration objectives such as preserving social cohesion (including peaceful relations between different religious groups) and ensuring respect for the constitutional principles of the state concerned. It is also submitted that religious servants can be required to acquaint themselves with existing legal limitations on the freedom of religion (such as the right of individuals to leave a religious community) as a way of ensuring respect for the rights and freedoms of others. However, it is clear from the ECtHR’s judgment in Nolan and K that a state may not seek to abolish or restrict religious pluralism or ‘dictate what a person believes or take coercive steps to make him change his beliefs’ (section II.B; see also section II.D.i. of chapter 4). The aim of the ‘protection of the economic well-being of the state’, which is often an important goal of integration policies, is also not mentioned in the second paragraph of Article 9 ECHR. It is therefore doubtful whether an integration measure solely directed towards economic aims (such as economic self-reliance) could constitute a legitimate restriction of the freedom of religion.42 Thirdly, it has to be determined whether integration requirements for the admission of religious servants are also ‘necessary in a democratic society’. Again, the outcome of this determination will depend to a large extent on the particular features of the measure at stake and on the circumstances of the case. Some remarks can, nevertheless, be made. As a first requirement, it will have to be established that the integration requirements are needed in order to address a ‘pressing social need’. This criterion will probably be satisfied if the state can demonstrate the existence of problems relating to immigrant integration, for instance low levels of participation amongst immigrant groups. Still, the ‘necessity’ test also requires the interest of the state in addressing these problems to be balanced against the interference with the rights of the religious community. This proportionality test needs to be conducted not only in abstracto, but also with regard to the particular circumstances of the case.
Freedom of Religion
I. INTRODUCTION
II. FREEDOM OF RELIGION AS PROTECTED BY ARTICLE 9 OF THE EUROPEAN
CONVENTION OF HUMAN RIGHTS
A. Scope of Article 9 ECHR – the Right of Religious Communities to Self-organisation and the Admission of Religious Servants
i. Individual and Collective Dimension of the Freedom of Religion
ii. Admission of Religious Servants
a. El Majjaoui and Stichting Touba Moskee: the Question Left Unresolved
b. Omkarananda and Afterwards: Immigration Measures Used to Curb the Freedom of Religion
c. Impossibility for Religious Organisations to Continue their Activities
d. Final Remarks Concerning the Scope of Article 9 ECHR
B. Limitations to the Freedom of Religion: Article 9(2) ECHR
C. Margin of Appreciation
D. Article 9 ECHR in Relation to Integration Requirements