Article 9 ECHR proportionality assessment in the context of removal from the register of Independent Education Institutions in England

Monday 3 October 2016

Cityside Primary Trust v Secretary of State for Education [2016] 2600.INS, 6 August 2016 Cityside Primary Trust appealed against the decision of the Secretary of State to remove Ayasofia Primary School from the register of Independent Education Institutions in England.

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Cityside Primary Trust v Secretary of State for Education [2016] 2600.INS, 6 August 2016

Cityside Primary Trust appealed against the decision of the Secretary of State to remove Ayasofia Primary School from the register of Independent Education Institutions in England.

Although not registered or designated as a faith school, Ayasofia had been created in order to provide education to Muslim pupils and its curriculum was centered around the Muslim faith.

Ofsted undertook a number of inspection visits and found that Ayasofia was failing to meet a significant number of standards. The Secretary of State consequently took enforcement action pursuant to s.115 Education and Schools Act 2008 in de-registering the school.

During the course of the appeal, Cityside challenged the proportionality of the Secretary of State’s enforcement action in circumstances where the right to religion and belief in the context of education was engaged. It was asserted on behalf of Cityside that alternative and more proportionate enforcement action was open to the Secretary of State, such as requiring the school to submit a further Action Plan.

Although not expressly addressed, it appears that the Tribunal accepted that Article 9 was engaged but found that the Secretary of State’s actions had been proportionate. The Tribunal held that Article 9 rights did not require a different approach by the Secretary of State to the regulation of the school.

It further held that closure of Ayasofia would not deny the pupils or their parents the right to exercise their religion and education.

The Tribunal’s purported analysis of proportionality was supported by the following reasoning;

"….we find the Secretary of State’s decision proportionate and consistent with the maintenance of educational standards for all children and to the interests of and avoidance of detriment to the particular children attending Ayasofia and their parents [at 61].

We are not persuaded that there is a binary consequence, that is attendance at Ayasofia a school judged to have significant failings or home schooling with attendant risks. The Borough has many schools and evidence was given of alternative independent faith schools [at 62]

For the reasons above we do not consider that proportionality requires a school to continue in circumstances where failings as identified during the Ofsted inspection process have been identified [at 63]. 

Parents’ religious views cannot override fundamental requirements appropriate for the safe and effective delivery of education to their children whilst attending school. The issues relate to provision of minimum educational standards [at 68]."

Link to judgment: http://www.bailii.org/cgi-bin/format.cgi?doc=/uk/cases/UKFTT/HESC/2016/587.html&query=(Cityside)+AND+(Primary)+AND+(Trust)+AND+(v)+AND+(Secretary)+AND+(of)+AND+(State)+AND+(for)+AND+(Education)+AND+([2016])

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