AS TO THE ADMISSIBILITY OF
Application no. 25525/03
by Lamaiz EL MAJJAOUI and STICHTING TOUBA MOSKEE
against the Netherlands
The European Court of Human Rights (Third Section), sitting on 14 February 2006 as a Chamber composed of:
Mr B.M. Zupančič, President,
Mr J. Hedigan,
Mr C. Bîrsan,
Mrs M. Tsatsa-Nikolovska,
Mr V. Zagrebelsky,
Mr E. Myjer,
Mr David Thór Björgvinsson, judges,
and Mr V. Berger , Section Registrar,
Having regard to the above application lodged on 18 August 2003,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants,
Having deliberated, decides as follows:
The first applicant, Mr Lamaiz El Majjaoui, is a Moroccan national born in 1965 and resident in Flushing (Netherlands). The second applicant, Stichting Touba Moskee (formerly Stichting Islam Moskee), is a foundation (stichting) with legal personality under Netherlands law based in Flushing. The applicants are represented before the Court by Mr J.A. Platteeuw, a lawyer practising in Middelburg. The respondent Government are represented by their Agents, Mr R.A.A. Böcker and Mrs J. Schukking of the Ministry for Foreign Affairs.
A. The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
The second applicant, Stichting Touba Moskee, operates a mosque in Flushing catering to Muslim believers belonging to the local Moroccan ethnic community.
On 2 December 1999 the second applicant applied, via the District Employment Services Authority (Regionaal Bureau voor de Arbeidsvoorziening), for a work permit (tewerkstellingsvergunning) under the Foreign Nationals (Employment) Act (Wet Arbeid Vreemdelingen), which would allow it to appoint the first applicant as its imam.
On 30 October 2000 the General Directors of the Employment Services Authority (Algemene Directie voor de Arbeidsvoorzieningen), to whom the application had been forwarded, gave a decision refusing such a permit. It was considered that since the job vacancy had not been reported, it had to be assumed that an adequate supply of priority labour (i.e. European Union or European Economic Area nationals, or others with equivalent status as regards residence and the right to work, possessing the requisite qualifications) existed. In addition, it had not been shown that the first applicant would earn the statutory minimum wage. Furthermore, it had not been demonstrated that the second applicant had made sufficient efforts to fill the position with priority labour available on the labour market, for example by advertising the position in the local and national press.
The first applicant lodged an objection to the General Directors of the Employment Services Authority on 29 November 2000. It was stated, among other things, that the applicant had been admitted to the Netherlands already in November 1998, so that section 8 (1) (d) of the Foreign Nationals (Employment) Act did not apply to him, and that it was well known that there was a dearth of imams in the Netherlands.
The General Directors of the Employment Services
Authority gave their decision on 19 September 2001. It was found that
the second applicant had not investigated the labour market at the time
when the application for a work permit was made, and that moreover the
vacant position had not been reported to the Employment Services Organisation
organisatie) at least five weeks before the date of the application. The first applicant had been admitted to the country to work as a teacher of religion, not as an imam, and although the applicants had submitted a draft contract of employment naming a sufficient monthly wage it was not stated that this wage was linked to the statutory index. The information supplied by the applicants as to the alleged shortage of suitably qualified persons on the Netherlands and European Union labour markets was not persuasive. Finally, two training establishments for imams existed in the Netherlands; it had not been shown that the second applicant had tried to recruit its imam from one of these.
The first applicant appealed to the Regional Court (arrondissementsrechtbank) of The Hague on 16 October 2001 and submitted his grounds of appeal on 29 November 2001. So did the second applicant, as a “third party” with an interest in the decision. It was stated, among other things, that already in September or October 1999 the second applicant had made unsuccessful attempts to find a suitable imam through the Labour Exchange (Arbeidsbureau). Given the unreasonable length of time taken up by the pending proceedings (by this time, nearly two years already) and in the absence of any other candidate for the position, the first applicant had in the meantime started work as the imam of the second applicant’s mosque, and was functioning to the satisfaction of all concerned. It was also argued that the decision of 19 September 2001 violated Article 9 of the Convention.
Having held a hearing on 30 August 2002, the Regional Court gave its decision on 11 October 2002.
The Regional Court repeated the findings of the General Directors of the Employment Services Authority that the second applicant had not sufficiently investigated the availability of suitable alternative candidates, that the vacancy had not been reported to the Employment Services Organisation at least five weeks before a work permit was applied for, and – notwithstanding the submission of a bank statement and proof of payment in kind (viz. free housing) – that it had not been demonstrated that the first applicant was entitled to the statutory minimum wage. As to Article 9 of the Convention, it found that any interference that might have occurred was prescribed by law and necessary in a democratic society for the protection of public order – an expression construed by the Regional Court as encompassing the labour market.
The first and second applicants each lodged appeals with the Administrative Jurisdiction Division (Afdeling Bestuursrechtspraak) of the Council of State on 27 November 2002. It alleged that the Regional Court had erred in finding that the vacancy for a qualified imam had not been duly reported to the Employment Services Organisation. Prior to the application for a work permit, efforts had been made to find an imam with residence rights through the informal circuit, as was customary in the case of Moroccan imams. Only after the Labour Exchange had failed to produce a suitable candidate had the first applicant been identified as such and had a work permit been applied for. The first applicant was being paid the statutory after-tax minimum wage, but the tax authorities were refusing to accept payment of the various withholding taxes and social-security contributions. Of the two institutions in the Netherlands which trained imams, one had ceased its activities because it was not recognised by the Islamic community in the Netherlands and the other did not train imams capable of functioning within Moroccan religious communities. Finally, the second applicant invoked Article 9 of the Convention.
Having held a hearing on 17 February 2003, the Administrative Jurisdiction Division gave its decision on 28 February 2003.
The applicants were held not to have corroborated with documentary evidence their allegation that the second applicant had sought to find a suitably qualified imam prior to lodging the application for a work permit, nor had they shown sufficient diligence in trying to find priority labour available on the labour market to fill the vacancy. The applicants’ statement that it would have been pointless for the second applicant to approach the one remaining training institute for imams operating in the Netherlands was also found to be unsubstantiated. Article 9 of the Convention could not be construed as entitling a religious community to employ a foreign national as a teacher and minister of religion who did not meet statutory requirements set for the purpose of preserving peace and public order.
B. Relevant domestic law and practice
1. The Foreign Nationals (Employment) Act
“1. It is forbidden for an employer to employ a foreign national in the Netherlands without a work permit. ...”
“1. A work permit shall be refused:
a. if, for the position (arbeidsplaats) concerned, there is a supply of priority labour available on the labour market ;
b. if the position is one whose availability has not been reported to the Employment Services Organisation at least five weeks before the application was lodged;
d. if the foreign national concerned is one who has not been admitted [to the country] before, and who does not earn, from the work concerned, for a period of one month a sum equal to the minimum wage ...”
“A work permit may be refused:
a. if the employer cannot show evidence of sufficient efforts to fill the position with priority labour available on the labour market; ...”
It seems that from 1 February 2001 until 1 January 2002 the Central Organisation for Work and Income (Centrale Organisatie voor Werk en Inkomen), which had replaced the General Directors of the Employment Services Authority shortly before, followed a policy of not applying section 8 (1) (b) to ministers of religion.
On 5 January 2005, in reply to questions from members of parliament introduced on 2 December 2004, the Minister for Immigration and Integration (Minister voor Vreemdelingenzaken en Integratie) provided the following information (Handelingen Tweede Kamer – Records of the Lower Chamber of Parliament – 2004-05, No. 692, Annex, p. 1463):
· During the previous four years, 196 temporary residence permits had been issued for the purpose of taking up paid employment as a minister of religion or teacher of religion;
· No records were kept of the religious denominations involved;
· One residence permit as referred to above had been withdrawn and 49 had not been extended, the reason being that the applicable conditions were not fulfilled;
· No temporary residence permits granted to ministers or teachers of religion had been transformed into permanent residence permits;
· Ordinary immigration law applied. Residence rights to ministers or teachers of religion (and their families) were granted on a temporary basis except in the case of those who could claim permanent residence under Decision No 1/80 of the Association Council set up by the Agreement establishing an Association between the European Economic Community and Turkey of 19 September 1980.
The applicants complained of a violation of their rights guaranteed by Article 9 of the Convention. It is their claim that the refusal of a work permit to the first applicant constituted an “interference” with their rights under this provision that was not “necessary in a democratic society” for any of the reasons set out in its second paragraph.
Article 9 of the Convention provides as follows:
“1. Everyone has the right to freedom of thought, conscience and religion; 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.
2. Freedom to manifest one’s religion or beliefs shall be subject only to such limitations as are prescribed by law and are 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.”
The Government viewed the case not as one involving an interference with freedom of religion, but rather as one involving the admission of a foreign national to the domestic labour market. The applicable conditions, namely that the vacant position should be reported to the competent authority at least five weeks before a work permit was applied for and that the foreign national should earn at least the statutory minimum wage, had not been fulfilled. Consequently there was no question of an interference with the applicants’ rights under Article 9.
In the alternative, it could not be said that the measures complained of interfered with freedom of religion: it had been open to the second applicant to engage an imam, quite possibly even the first applicant, provided that the conditions prescribed by law were met.
In the further alternative, the measures complained of were justified in terms of Article 9 § 2, the interest concerned being that of regulating the domestic labour market.
Although it was true that from 1 February 2001 until 1 January 2002 the Central Organisation for Work and Income (Centrale Organisatie voor Werk en Inkomen) did not apply section 8 (1) (b) of the Foreign Nationals (Employment) Act to ministers of religion, this did not affect the case of the applicants, since “Mr El Majjaoui’s application [dated] from after the period in question”.
The applicants stated in reply that it had been very difficult for the second applicant to find a person suitable for appointment as their imam, whether through official or unofficial channels. They took the view that any restriction on the freedom of the second applicant to appoint whomsoever it wished as imam was unwarranted in terms of Article 9 of the Convention. In the alternative, they argued that it was for the Government to show that suitable persons were available in the European Union and the European Economic Area and not for them to prove otherwise.
They submitted in addition that the request for a work permit had first been lodged on 2 December 1999. Since the General Directors of the Employment Services Authority gave their decision on 19 September 2001, the temporary policy of not applying section 8 (1) (b) of the Foreign Nationals (Employment) Act to ministers of religion ought to have been followed in the present case even as a matter of domestic law.
The Court considers, in the light of the parties’ submissions, that the complaint raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The Court concludes therefore that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.
For these reasons, the Court unanimously
Declares the application admissible, without prejudging the merits of the case.
Vincent Berger Boštjan
EL MAJJAOUI & STICHTING TOUBA MOSKEE v. THE NETHERLANDS
EL MAJJAOUI & STICHTING TOUBA MOSKEE v. THE NETHERLANDS