- Mr Blake, QC,
on behalf of Mr Farrakhan, described the challenge made to the decision of
the Secretary of State as a 'reasons challenge'. The Secretary of State had
explained the policy that he had applied when considering whether Mr Farrakhan
should be admitted to this country. He had failed, however, to give the reasons
why the application of that policy had led to the exclusion of Mr Farrakhan.
The consequence of the quashing of his decision was not that he was obliged
to admit Mr Farrakhan, but that, if he decided to continue to exclude him,
he would have to provide adequate reasons for so doing.
- It is correct
that the judgment of Turner J. is redolent with statements that the Secretary
of State had given inadequate reasons for his decision. But the basis upon
which his decision was quashed is encapsulated in the following sentence from
paragraph 48 of the judgment:
"The
inference which a court is bound to draw in the absence of a sufficiency of
justification (reasons) is that there are none which will support the conclusion
reached, or decision made, as being properly within the 'discretionary area
of judgment'."
- We do not believe
that, under established principles of judicial review, the absence of reasons
gives rise to the inference that none exists. Turner J. did not, however,
rest on the inference to which he referred. He held, in paragraphs 41 and
42, that it was appropriate to carry out a rigorous review of the 'reasons
provided and of the underlying circumstances' in order to decide whether the
Secretary of State had reached a conclusion which was not open to a reasonable
decision maker. In considering whether there was a basis for the supposition
that a likelihood or risk that disorder would occur if Mr Farrakhan were to
be admitted to this country, it was necessary to look at the history and at
the nature of Mr Farrakhan's teachings.
- Turner J. performed
that exercise and concluded that it had not been shown that there was more
than a 'nominal risk' that community relations would be harmed if Mr Farrakhan
visited this country. It was on that basis that he ordered that the Secretary
of State's decision should be quashed.
- Turner J's decision
was pronounced on 31 July 2001, but his reasoned judgment was handed down
on 1 October. The events of September 11 had intervened. We suspect that it
was with those events particularly in mind that Turner J., on October 1, emphasised
that his judgment had regard to the state of affairs pertaining on 31 July
and that nothing in his judgment could prejudge what decision might have been
taken if other domestic political or international circumstances had prevailed.
- Before us Mr
Blake emphasised the point, which was plainly correct, that if we were to
uphold Turner J's judgment, the Secretary of State would have to consider
afresh, in the light of the circumstances prevailing at the time, any renewed
application by Mr Farrakhan, to enter this country. The only practical significance
of this judgment lies in any guidance that it may afford to the Secretary
of State should he have to undertake that task.
The
legislative framework
- The position
of persons seeking to enter this country from abroad is governed by a complex
patchwork of statutory rules and regulations. Section 1 of the Immigration
Act 1971 empowers the Secretary of State to lay down rules for regulating
the entry into the United Kingdom of persons not having a right of abode here,
including visitors. Section 3 of that Act provides that a person who is not
a British citizen shall not enter the United Kingdom unless given leave to
do so in accordance with the provisions of, or made under, the Act.
- Lengthy Immigration
Rules (HC395) have been made pursuant to ss. 1, 3(2) of the 1971 Act. Rule
41 lays down requirements for leave to enter as a visitor with which Mr Farrakhan
would have complied. Rule 320(6) provides, however, that grounds for refusing
leave to enter include:
"Where
the Secretary of State has personally directed that the exclusion of a person
from the United Kingdom is conducive to the public good."
- Section 59 of
the Immigration and Asylum Act 1999 makes provision for an appeal to an adjudicator
against the refusal of leave to enter the United Kingdom. Section 60(9) of
that Act provides, however, that:
"Section
59 does not entitle a person to appeal against a refusal of leave to enter,
or against a refusal of an entry clearance, if-
(a) the
Secretary of State certifies that directions have been given by the Secretary
of State (and not by a person acting under his authority) for the appellant
not to be given entry to the United Kingdom on the ground that his exclusion
is conducive to the public good;
or
(b) the
leave to enter, or entry clearance, was refused in compliance with any such
directions."
The
history of the exclusion of Mr Farrakhan
- Mr Farrakhan
is a charismatic and a controversial figure. On various occasions, none of
which was later than 1998, his public pronouncements in the United States
embraced accusations, in extreme language, that those who had been guilty
of exploiting the black people included wealthy Jews. More recently he has
emphasised the need for black people to establish self-esteem, dignity and
self-discipline.
- On 16 January
1986, the then Home Secretary, Mr Douglas Hurd, gave his personal direction
that Mr Farrakhan should be excluded from the United Kingdom on the ground
that his presence would not be conducive to the public good. He expressed
the belief that Mr Farrakhan's public statements in the United States gave
reasonable cause to believe that, if he came to the United Kingdom, he would
be likely to cause racial disharmony and possibly commit the offence of inciting
racial hatred.
- No attempt to
challenge Mr Farrakhan's exclusion appears to have been made until 1997. In
September of that year the late Mr Bernie Grant MP invited Mr Jack Straw,
who was then Home Secretary, to reconsider Mr Farrakhan's continued exclusion.
Mr Straw replied on the 30 October 1997 as follows:
"As
in all cases where individuals have been excluded from the United Kingdom
the need for Mr Farrakhan's continued exclusion is the subject of regular
review. The most recent review was carried out in July this year at an official
level. Other Government Departments were consulted and all representations
made, whether they were in support of Mr Farrakhan's admission or against
it, were taken into consideration at the time. My Department were advised
at the time that it was possible that some of Mr Farrakhan's public statements
could, if repeated in the United Kingdom, contravene the Public Order Act
1996. It was concluded that the threat Mr Farrakhan posed to the maintenance
of racial harmony in the United Kingdom remained. The exclusion was therefore
maintained.
In
the light of your letter I have decided personally to conduct a full review
of the decision. The exclusion will stand until I have reached a final conclusion,
and you will understand that my review of this case does not in any way pre-empt
the final conclusion I may reach.
The
balance between the need to preserve the freedom of speech and the undesirability
of giving a platform here to those espousing views which would be deeply offensive
to the public or large sections of the community is, of course, a very delicate
one."
- On 9 June 1998,
while Mr Straw's review was in progress, the British Vice-Consul in Chicago
wrote to Mr Farrakhan, inviting him to sign an undertaking. The letter stated
that this document, once signed, would be submitted to the Secretary of State
for a final decision on Mr Farrakhan's exclusion. Mr Farrakhan signed the
undertaking, which was in the following terms:
"I
understand that Britain is a diverse multi-cultural society which places a
high value on the maintenance of good relations between the different communities.
I confirm that I would not engage in conduct during any visit which would
jeopardise those good relations.
In
particular I will ensure that I do not say anything during any visit which
would vilify any group within the United Kingdom or which would otherwise
incite discord in the community. I understand that the long standing right
to freedom of speech which is enjoyed in Britain must be exercised with due
care to the rights of others to live in a society where abusive and threatening
behaviour is not tolerated.
I
am aware that Britain has legislation which makes it a criminal offence to
incite racial hatred. I understand that under the Public Order Act 1986 it
is a criminal offence in Great Britain to use threatening, abusive or insulting
words or behaviour with the intention or likelihood of thereby stirring up
racial hatred. I understand that the same test also applies to the display
of written material; the publication or distribution of written material;
the distribution, showing or playing of a recording; and the possession of
racially inflammatory material. I understand that in this context "racial
hatred" means hatred against a group of persons in Great Britain defined by
reference to colour, race, nationality (including citizenship) or ethnic or
national origins. I understand that similar offences exist in Northern Ireland.
During any visit I will abide by this legislation.
I
understand that should I breach this undertaking on any visit the question
of my exclusion from the United Kingdom at the personal direction of the Secretary
of State for the Home Department will be reconsidered."
The
Secretary of State has proffered no explanation of why Mr Farrakhan was invited
to sign this document.
- On 29 June there
was a highly publicised disturbance outside the building where the Stephen
Lawrence Inquiry was being held. Three members of the Nation of Islam were
arrested and charged, two with obstructing the police in the execution of
their duty and one with affray contrary to the Public Order Act 1986.
- On 6 July 1998
an official in the Asylum and Appeals Policy Directorate wrote to Mr Farrakhan
to inform him that the Secretary of State was minded to maintain his exclusion
from the United Kingdom on the grounds that his presence here 'would not be
conducive to the public good for reasons of race relations and the maintenance
of public order'. Early in the letter the writer explained:
"The
Home Secretary is able personally to exclude from the United Kingdom any individual
whose presence here would not be conducive to the public good. An individual
who holds views which are deeply offensive to large sections of the population
would not normally be excluded unless the Home Secretary was also satisfied
that that individual posed a threat to the public order here or was likely
to commit criminal offences here, in particular under the racial hatred provisions
of the Public Order Act 1986."
- The letter referred
to a number of matters considered by the Secretary of State, which weighed
in favour of admitting Mr Farrakhan. It also referred to a number of anti-Semitic
remarks said to have been made by Mr Farrakhan. It referred to conflicting
reactions of two different groups of consultees:
"He
has also formally consulted several groups representing the black and Muslim
population in the United Kingdom and has considered their views. All these
groups expressed the basic sentiment that refusing to allow you into the United
Kingdom without any firm evidence that your presence would lead to racial
disturbance ran counter to the liberal and tolerant traditions of this country.
....
The
Home Secretary has received numerous representations against the lifting of
your exclusion from Members of Parliament here and from Jewish representative
bodies. They have suggested that your views are bigoted and racially divisive;
that they exceed the right to freedom of speech and that the spreading of
such views incites anti-Semitism. In the circumstances the Home Secretary
considers there is a serious concern that you would, whilst in the United
Kingdom, use language which would constitute an offence under the public Order
Act 1986 of stirring up racial hatred."
- The letter then
referred to the disturbance at the Stephen Lawrence Inquiry and to a sequel
to this:
"The
Home Secretary considers that the actions taken at this Inquiry by members
of the Nation of Islam undermine your claims that if permitted to enter the
United Kingdom you would not come to stir racial or religious tension. Furthermore,
the incident gives rise to serious concern that any visit by you would pose
a serious threat to public order as a result of the actions taken by Nation
of Islam members here and the raising of racial tension."
- The letter ended
with the following provisional decision:
"The
Home Secretary accordingly remains of the view that your presence here would
be deeply offensive to large sections of the population. He has considered
your application with great care, taking account of your representations and
your willingness to sign an undertaking. But the issue before him is whether
he can be satisfied that the undertaking is sufficient to ensure that the
damage to race relations and the risk of serious disorder caused by your presence
here is acceptably low. In the light of all the information he has received
during the review he cannot be so satisfied and is therefore minded to maintain
your exclusion from the United Kingdom."
It
invited further representations before a final decision was taken.
- On 23 July 1999
the Immigration and Nationality Directorate wrote to Mr Farrakhan's solicitors
in the following terms:
"This
is to inform you that, after very careful consideration of all the circumstances
of his case, the Home Secretary has now decided that Mr Farrakhan should continue
to be excluded form the United Kingdom. In reaching his decision the Home
Secretary took into account, inter alia, the racist and offensive views Mr
Farrakhan had expressed whilst in the United States and the threat to public
order in the United Kingdom posed by some of his supporters, as evidenced
by the behaviour of some members of the Nation of Islam at the Stephen Lawrence
Inquiry on 29 June last year.
You
asked for details of the review process culminating in the Home Secretary's
decision. On 24 November 1997 the Immigration and Nationality Directorate
informed Mr Farrakhan that the Home Secretary had decided personally to review
his exclusion. Mr Farrakhan was invited to submit representations and the
views of a range of groups representing ethnic minority communities were sought.
I can confirm that the Home Secretary received and considered views from Mr
Farrakhan, his representative, Minister Ava Muhammad and the groups mentioned
above. He also received a large number of unsolicited letters from other bodies,
members of the public and from Members of Parliament, both for and against
maintaining the exclusion. I am afraid that we are not prepared to disclose
to you which groups he consulted or the content of the representations they
made but I can assure you that the Home Secretary took great care to ensure
that a broad range of views was canvassed.
The
review process was nearing its completion when the Home Secretary learnt of
the events at the Stephen Lawrence Inquiry. On 6 July last year the Immigration
and Nationality Directorate wrote to Mr Farrakhan to inform him that the Home
Secretary was minded to maintain the decision to exclude him and inviting
a further response from Mr Farrakhan. After very careful consideration of
the response sent on Mr Farrakhan's behalf by Ms Muhammad and other representations
he received over this period, the Home Secretary decided, for the reasons
given above, that Mr Farrakhan should continue to be excluded. I am directed
to inform you that there is no right of appeal against this decision."
- This led Mr
Farrakhan's solicitors to write, on 25 August, seeking particulars of Mr Farrakhan's
"racist and offensive views" and details of the "threat to public order in
the United Kingdom" perceived by the Home Secretary. The Directorate replied
on 14 October 1999, annexing a schedule of "anti-Semitic and racially divisive
views" which Mr Farrakhan was alleged to have expressed. The letter explained:
"......the
Secretary of State is of the view that a visit to the United Kingdom by Minister
Farrakhan poses an unacceptable risk that, as a result of the words and behaviour
of the Minster, racial tension will be increased to a point where supporters
of the National of Islam would commit public order offences or others would
be provoked to commit such offences, as evidenced by the events of 29 July
1998 at the Stephen Lawrence Inquiry, however contrary to the wishes of the
Minister this might be."
- Mr Farrakhan's
solicitors replied at great length to this letter on 8 March 2000. They gave
details of the seven day visit that Mr Farrakhan wished to make to the United
Kingdom. This would include meetings with community leaders and local community
groups to promote 'positive, crime-free, drug-free and socially responsible
behaviour within the community' and a public speech on 'Atonement, Reconciliation
and Responsibility'. The letter addressed the suggestion that the behaviour
of members of the Nation of Islam outside the Stephen Lawrence Inquiry was
cause for concern, tracing the subsequent prosecution of one member for affray
and the vigorous criticism of this course by Otton LJ in the Court of Appeal.
The letter contended that apparently offensive comments said to have been
made by Mr Farrakhan had been taken out of context and that two of these had
been wrongly attributed to him.
- We have set
out at the beginning of this judgment the most significant passage from the
Secretary of State's decision letter of 20 November 2000. Because of the attack
that has been made on the adequacy of the reasons given by him, it is right
that we should set out the earlier part of that letter:
"The
Home Secretary has carried out a personal review of the exclusion, taking
into careful account all the circumstances and the points raised in your letters.
He
has attached particular weight to the following points which you raise:
a. Copies
of many of Mr Farrakhan's speeches are in free circulation within the United
Kingdom and have not been the subject of legal proceedings.
b. A
dialogue between the Nation of Islam and certain Jewish groups has been opened
in the USA.
c. The
Nation of Islam has a reputation for advocating social responsibility.
d. Apart
from the incident at the Stephen Lawrence inquiry on 29 June 1998, there is
no record of violent disorder associated with the group in the UK.
The
Secretary of State has also taken into account, as matters favourable to Mr
Farrakhan, the following:
a. Mr
Farrakhan is not excluded from any other country.
b. The
Secretary of State finds nothing objectionable in Mr Farrakhan's conduct during
his visit to Australia, Canada and Israel.
c. Mr
Farrakhan has signed assurances as to his behaviour should he be allowed to
visit the United Kingdom.
d. Mr
Farrakhan's current message of reconciliation.
The
Secretary of State has also taken into account that freedom of expression
is a fundamental right, recognised both by the common law and by the European
Convention on Human rights. It encompasses not only ideas that are favourably
received but also those that offend shock or disturb. Any restrictions of
this freedom must be prescribed by law and be necessary in a democratic society.
And any restrictions must pursue a legitimate aim and be proportionate. It
is, however, permissible to impose greater restrictions on the political activity
of aliens than of a State's own citizens.
The
Home Secretary nevertheless remains satisfied that Mr Farrakhan has expressed
anti-Semitic and racially divisive views, notwithstanding the explanations
offered in relation to the particular examples in the correspondence. For
example, the tenor of the remarks by Mr Farrakhan listed in paragraphs 5 to
9 of the appendix to your letter of 8 March 2000 indicate that Mr Farrakhan
apparently believes in an extensive Jewish conspiracy. Further, the Home Secretary
is aware that sections of the community, in particular the Jewish community,
clearly associate Mr Farrakhan with anti-Semitic views. The Home Secretary
does not consider this perception to be without foundation."
The
decision of Turner J.
- Turner J noted
that the decision letter referred inferentially to the following Articles
of the European Convention on Human Rights:
"Article
10
Freedom
of expression
1. Everyone
has the right to freedom of expression. This right shall include freedom to
hold opinions and to receive and impart information and ideas without interference
by public authority and regardless of frontiers. This Article shall not prevent
States from requiring the licensing of broadcasting, television or cinema
enterprises.
2. The
exercise of these freedoms, since it carries with it duties and responsibilities,
may be subject to such formalities, conditions, restrictions or penalties
as are prescribed by law and are necessary in a democratic society, in the
interests of national security, territorial integrity or public safety, for
the prevention of disorder or crime, for the protection of health or morals,
for the protection of the reputation or rights of others for preventing the
disclosure of information received in confidence, or for maintaining the authority
and impartiality of the judiciary.
Article
16
Restrictions
on political activity of aliens
Nothing
in Articles 10, 11 and 14 shall be regarded as preventing the High Contracting
Parties from imposing restrictions on the political activity of aliens."
He
commented at paragraph 16 that the court had to review the decision in accordance
with the approach to review of restrictions on Convention rights and that
the question was whether the interference with the right both to impart and
to receive information could be justified in a democratic society.
- Turner J. set
out at length the contentions advanced on behalf of Mr Farrakhan. These focussed
on Article 10 of the Convention. While it was conceded that this did not,
of itself, confer a right of entry on an alien, it was contended that if,
as in the case of Mr Farrakhan, the only identifiable reason for maintaining
the refusal of entry was restriction of freedom of expression, the Home Secretary
had to justify that restriction under Article 10.2. Furthermore the freedom
of expression that was engaged was not merely that of Mr Farrakhan, but also
that of his followers in the United Kingdom who wished to hear what he had
to say.
- For the Home
Secretary, Turner J. recorded the concession that freedom of speech could
only be restricted if it was necessary in a democratic society, as identified
in Article 10.2. It was contended that in the case of an alien seeking to
enter the United Kingdom, the Home Secretary retained a broad area of discretion
and that Mr Farrakhan had been refused entry into the United Kingdom in the
interests of the community in the exercise of proper immigration considerations
and his right to freedom of speech could not override these.
- Turner J. went
on to conduct a 'rigorous review' of whether there were reasonable grounds
to suppose that admitting Mr Farrakhan to this country would involve a significant
risk of civil disorder. The extent of his analysis of the background evidence
is apparent from the following list of factors which he considered to be indicative
of the context and probable content of the pronouncements that Mr Farrakhan
was likely to make:
"1. NOI
developed in the United States among the Afro-American communities, which
have historically faced discrimination, from among others, Jewish-Americans,
who in their turn have also faced discrimination.
2. The
teaching of NOI concerns the need for self-reliance, self-discipline and the
observance of religious, as well as national laws. The need to develop responsibility
among that part of society which has, or has felt itself to have been culturally
or economically disadvantaged.
3. Disapproval
of violence, drugs and crime.
4. In
1998, a march was organised in Trafalgar Square by NOI in which more than
10,000 people took part. It passed off without incident.
5. The
only recorded incident which might have indicated a propensity to violence
or disorder was that at the Stephen Lawrence Inquiry, as to which, see above.
6. The
terms of the first three paragraphs of the undertaking of June 1998, above,
the integrity of which have never been the subject of challenge or doubt.
7. The
outline programme contained in section 2 of the claimant's solicitors' letter
of application dated 8 March 2000.
8. The
fact that the claimant has been set on a path of reconciliation with Jewish
leaders in the United States.
9. There
is no evidence to support the position upon which the Home Secretary relied
in July 1998 (bundle p.42) as still applying in 2001.
10. The
fact that the entry was for a limited period and limited purpose.
11. There
was no history of violence or public disorder in relation to any public gathering
associated with the Claimant in the United States or elsewhere, including
most importantly, Israel.
12. The
mere recital of grounds which might have supported maintenance of the ban
on the claimant could not support the Home Secretary's decision which had
to demonstrate that he had in fact engaged with the complete circumstances
of the application."
- Turner J. then
considered the jurisprudence on the approach to be adopted by the court when
reviewing an executive decision that interfered with a fundamental right.
He concluded at paragraph 48 that the effect of this was that the terms of
the Home Secretary's decision had to demonstrate that he had properly found
and identified 'substantial objective justification' for his decision. His
conclusions appear in the following passage from paragraph 53 of his judgment:
"The
claimant is, and only holds himself out to be a Black Muslim. Insofar as his
pronouncements have touched upon the relations between Jews and Muslims, they
have been so restricted, particularly those in the United States of America.
Historically, the claimant's statements relating to Jews were directed in
the main to the inequality which existed between Jews and Black Muslims both
of whom were and are racial minorities in the United States. The time when
those pronouncements were made and which reached a state of great hyperbole
and rhetoric has effectively now passed. The contemporary, and undisputed,
evidence before the court, and so far as is disclosed in the decision letter
also before the Home Secretary, was that in the more recent past the claimant
has endeavoured to follow a path of reconciliation between Jews and Black
Muslims as well as teaching the latter the virtues of self discipline and
respect. Apart from the incident at the Stephen Lawrence Inquiry, which was
successfully dealt with by NOI as an internal disciplinary matter, there is
no history in this country or abroad of meetings or gatherings of NOI leading
to any form of disturbance. Indeed two high profile marches in the United
States, to one at least, of which Jews were invited to, and did, take part,
passed off without incident. There is a complete absence of evidence before
the Court of racial, religious or ethnic tension between the Black Muslim
and Jewish communities in the United Kingdom existing at the date of the decision
letter. Of course it might be the case that this was due to the policy of
exclusion of religious zealots of whom the claimant may be one. But it is
in my judgment simply not made out, as it must if the Home Secretary is to
be successful in this case, that there was more than a nominal risk that community
relations would be likely to be endangered if the ban on the claimant's entry
to the United Kingdom for the limited purposes and duration which he has sought
were to be relaxed."
Is
Article 10 of the Convention engaged?
- Mr Pannick,
QC, who appeared for the Secretary of State before Turner J., had conceded
that the facts of the case engaged Article 10 of the Convention. We gave advance
warning to Counsel that we wished to hear submissions as to why this was so.
This led Miss Carss-Frisk, QC, who appeared for the Secretary of State before
us, to submit that Article 10 was not in fact engaged. Mr Farrakhan had been
refused entry because his presence in this country was not desirable. In those
circumstances Article 10 gave him no right to demand entry in order to exercise
his freedom of speech within this country.
- Before the hearing
of this appeal we had entertained doubts as to whether Article 10 was engaged
where the authorities of a State refused entry to an alien, even if their
sole reason for doing so was that they did not wish him to exercise a freedom
to express his opinions within their territory. Article 10 requires the authorities
of a State to permit those within its boundaries freely to express their views,
even if these are deeply offensive to the majority of the community. It did
not seem to us to follow that those authorities should be obliged to allow
into the State a person bent on giving its citizens such offence.
- It is a remarkable
fact that almost all the Articles of the Convention which permit, for specified
purposes, restrictions on the freedoms that they guarantee, do not include
in those purposes the exercise of control of immigration. This strongly suggests
to us that those who negotiated the Convention only envisaged that its obligations
would apply to the treatment of individuals who were within the territory
of the Member State concerned. This impression is enhanced by the fact that,
under Article 5.1(f) an exception to the right to liberty is 'the lawful arrest
or detention of a person to prevent his effecting an unauthorised entry into
the country'. The Convention is, however, a living instrument and, in accordance
with the requirement of section 2 of the Human Rights Act 1998, we must have
regard to the Strasbourg jurisprudence when considering whether Article 10
imposes obligations in relation to an alien who is seeking admission to a
Member State. In this context we should record that, for the purposes of this
case, the Secretary of State was prepared to accept that the fact that an
individual was neither a citizen of a Member State nor within the territory
of a Member State did not, of itself, preclude the application of the Convention.
We have proceeded on the basis of that concession without examining whether
or not it is correctly made.
- A similar issue
to that with which we are concerned arose in relation to Article 8 of the
Convention in Abdulaziz and Others v United Kingdom (1985) 7 EHRR 471.
The applicants were women settled in the United Kingdom who complained that
their rights to respect for family life were infringed because their husbands
were refused permission to enter in order to join them. The Government argued
that Article 8 did not apply to immigration control. Both the Commission and
the Court rejected this submission, holding – see paragraph 59 – that immigration
controls had to be exercised consistently with Convention obligations and
the exclusion of a person from a State where members of his family were living
might raise an issue under Article 8.
- The Court observed
in the next paragraph that the applicants were not the husbands but the wives,
who were complaining not of being refused leave to enter, but as persons lawfully
settled in the country of being deprived of the society of their spouses there.
However, in paragraph 67 the Court observed:
"....in
the area now under consideration, the extent of a State's obligation to admit
to its territory relatives of settled immigrants will vary according to the
particular circumstances of the persons involved. Moreover, the Court cannot
ignore that the present case is concerned not only with family life but also
with immigration and that, as a matter of well-established international law
and subject to its treaty obligations, a State has the right to control the
entry of non-nationals into its territory."
- In Article 8
cases the Court has been reluctant to override decisions taken in the interests
of immigration control on the ground that they interfere with respect for
family life. The jurisprudence of the Court was accurately summarised by the
Commission in Poku v United Kingdom (1996) 22 EHRR CD 94 at CD 97-8,
and in particular in the following passage:
"Whether
removal or exclusion of a family member from a contracting states [sic] is
incompatible with the requirements of article 8 will depend on a number of
factors; the extent to which family life is effectively ruptured, whether
there are insurmountable obstacles in the way of the family living in the
country of origin of one or more of them, whether there are factors of immigration
control (eg history of breaches of immigration law) or considerations of public
order (eg serious or persistent offences) weighing in favour of exclusion."
- It is apparent,
however, that an immigration decision can bring Article 8 into play. Furthermore,
we have no doubt that if a State were to refuse entry with the motive of preventing
the enjoyment of family life because, for instance, of a policy of opposing
the intermarriage of its citizens with aliens, the Court would hold that Article
8 was infringed.
- We turn to decisions
involving Article 10, of which there are very few. Miss Carss-Frisk relied
heavily on the decision of the Commission in Agee v United Kingdom
(1976) 7 D & R 164. The Secretary of State had made a deportation order
against the applicant, who was a United States citizen, on grounds which included
that he had maintained regular contacts harmful to the security of the United
Kingdom with foreign intelligence officers. He complained that this infringed
a number of his Convention rights, including Article 10. The Commission held
that this complaint was manifestly ill-founded, observing at paragraph 19:
"Art
10(1) of the Convention provides inter alia that everyone has the right to
freedom of expression and that this right includes freedom 'to receive and
impart information and ideas without interference by public authority.....'
However,
Art 10 does not in itself grant a right of asylum or a right for an alien
to stay in a given country. Deportation on security grounds does not therefore
as such constitute an interference with the rights guaranteed by Art 10. It
follows that an alien's rights under Art 10 are independent of his right to
stay in the country and do not protect this latter right. In the present case
the applicant has not, whilst in the jurisdiction of the United Kingdom, been
subjected to any restrictions on his rights to receive and impart information.
Nor has it been shown that the deportation decision in reality constituted
a penalty imposed on the applicant for having exercised his rights under Art
10 of the Convention, rather than a proper exercise on security grounds of
the discretionary power of deportation reserved to States."
- We observe that
it is implicit in this passage that the Commission might have considered the
complaint well-founded if the reason for Mr Agee's deportation had been the
manner in which he exercised freedom of speech.
- Mr Blake submitted
that there was a decision of the Court which demonstrated that Article 10
could be engaged in the context of a refusal to permit an alien to enter the
territory of a Member State. Piermont v France (19950 20 EHRR 301 involved
an application by a German MEP. She entered French Polynesia at a time when
an election campaign was in progress at the invitation of the leader of the
Liberation Front. She took part in a public meeting and subsequently in a
demonstration at which she denounced nuclear testing and the French presence
in the Pacific. The High Commissioner made an order expelling her for attacking
French policy. She was then excluded from entry to New Caledonia by the High
Commissioner for reasons that included his belief that her presence there
during an election campaign was likely to cause public disorder. She complained
that Article 10 of the Convention was infringed on both occasions, contending
that neither lawful entry nor lawful residence was necessary for Article 10
to apply.
- The French Government
sought to rely on Article 16. The Court held that the fact that the applicant
was a national of a Member State of the European Union and a member of the
European Parliament meant that Article 16 could not be raised against her.
- So far as the
expulsion from Polynesia was concerned, both the Commission and the Court
upheld the applicant's complaint. They held that a fair balance had not been
struck between, on the one hand, the public interest requiring the prevention
of disorder and territorial integrity and, on the other, the applicant's freedom
of expression.
- So far as the
refusal to admit the applicant into New Caledonia was concerned, the view
of the Commission differed from that of the Court. The Commission held that
the fact that the applicant was unable to exercise certain rights, particularly
the right to freedom of expression, in New Caledonia was a consequence of
the refusal to allow her to enter the territory, which was a measure that
was compatible with the Convention. Accordingly there was no violation of
Article 10.
- The Court was
divided 5 to 4. The minority agreed with the Commission. The majority held,
however, that:
"The
exclusion order made by the High Commissioner of the Republic amounted to
an interference with the exercise of the right secured by Article 10 as, having
been detained at the airport, the applicant had not been able to come into
contact with the politicians who had invited her or to express her ideas on
the spot."
- The Court went
on to consider whether the interference with the applicant's freedom of expression
was justified. In so doing it simply considered whether the exceptions of
necessity in the interests of prevention of disorder or territorial integrity
provided for by Article 10.2 justified the interference. It held that they
did not as the interference was disproportionate to these legitimate aims.
- After the hearing
of the appeal, we identified two further decisions of the Commission, which
we considered to be relevant and we gave the parties the opportunity to make
written submissions in relation to these. The first was Swami Omkarananda
and the Divine Light Zentrum v Switzerland (1997) 25 D & R 105. The
first applicant was an Indian citizen. The second applicant, DLZ, was a religious
and philosophical institution that he had helped to found. Disturbances between
DLZ and citizens of the Canton of Zurich led the State Council to order his
expulsion, an order extended by the Federal authorities to cover all the territory
of the State. Before the order was carried out criminal proceedings were instituted
against the first applicant which ultimately resulted in his being sentenced
to 14 years imprisonment and 15 years expulsion from Swiss territory. He complained
that the order for his expulsion infringed, among others, Articles 9, 10 and
11 of the Convention. The Commission ruled his application inadmissible.
- The following
passages of the decision of the Commission are of relevance:
"5. ...This
provision does not in itself grant a right for an alien to stay in a given
country. Deportation does not therefore as such constitute an interference
with the rights guaranteed by Article 9 (see, mutatis mutandis, decision on
Application No. 7729/76, Agee v the United Kingdom, Decisions and Reports
7, pp.164, 174), 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.
6. In
the present case, the first applicant has not, whilst in the jurisdiction
of Switzerland, been subjected by the authorities to any restriction on his
rights to manifest his religion, in particular in teaching and worship. The
question has been raised nevertheless whether at the time of the expulsion
order complained of there were obvious reasons of public order to justify
the measure or whether it must be suspected that the main purpose sought was
to remove the source of an unwanted faith and dismantle the group of his followers.
The
Commission notes however that the expulsion order issued by the cantonal authorities
and later extended by the Federal authorities to cover all the territory of
the State was never carried out. If the first applicant is ever expelled it
will be in pursuance of the judgment of the Federal Criminal Court sentencing
him to fourteen years' imprisonment and fifteen years' expulsion from Swiss
territory.
Such
decision, based on obvious reasons of public order, constitutes an exercise
of the discretionary power of deportation reserved to States.
...
7. The
above considerations under Article 9 of the Convention also apply to both
applicants' claims under Articles 10 and 11 of the Convention."
- The other decision,
Adams and Benn v United Kingdom (1997) 88A D & R, 137 involved
a complaint arising out of an exclusion order made against Mr Gerry Adams,
the President of Sinn Fein, an Irish citizen resident in Northern Ireland,
under the Prevention of Terrorism Act 1989. This excluded him from Great Britain
and prevented him from accepting an invitation from Mr Tony Benn to speak
to Members of Parliament and a number of journalists in the Grand Committee
Room at the House of Commons. Both complained of violation of their Article
10 rights of freedom of expression – the former of the right to impart information
and ideas; the latter of the right to receive them.
- The Commission
held at p.144 that Article 10 was engaged:
"The
Commission recalls that the exclusion order imposed on the first applicant
prevented him from attending a specific meeting in the House of Commons to
which he had been invited by the second applicant. In these circumstances,
the first applicant has been subject to a restriction on his freedom of expression
and to impart information and ideas, and the second applicant to a restriction
on his right to receive information and ideas, within the meaning of the first
paragraph of Article 10."
- The Commission
went on at p.145 to consider whether the restriction could be justified under
Article 10.2, and decided that it could:
"In
the present case, the restriction complained of prevented the first applicant
from attending a specific meeting in London. The Commission notes in that
context that the United Kingdom is not a party to Protocol No. 4 to the Convention,
which in Article 2 guarantees freedom of movement within the territory of
a State. It remained open to the first applicant to express his views by other
means or in Northern Ireland and for the second applicant to receive those
views. The limitation was thus narrowly confined in its scope in so far as
it affected the freedom to receive and impart information. The Commission
recalls the sensitive and complex issues arising in the context of Northern
Ireland, where there have been ongoing efforts to establish a peace process
acceptable to the various communities and parties involved and where the threat
of renewed incidents of violence remains real and continuous. It also notes
that the exclusion order was lifted following the announcement of a cease-fire
by the IRA. In these circumstances, the Commission finds that the decision
of the Secretary of State to impose an exclusion order which prevented the
first applicant from attending a meeting in London was not disproportionate
to the aim of protecting national security and preventing disorder and crime
and that it could be regarded as necessary in a democratic society for those
purposes."
Discussion
- We have drawn
the following conclusions from the Strasbourg jurisprudence.
- The right under
international law of a State to control the entry of non-nationals into its
territory is one which is recognised by the Strasbourg Court. Where entry
is refused or an alien is expelled for reasons which are wholly independent
of the exercise by the alien of Convention rights, the fact that this carries
the consequence that he cannot exercise those rights in the territory from
which he is excluded will not constitute a violation of the Convention.
- In exceptional
circumstances the obligation to protect Convention rights can override the
right of a State to control the entry into its territory or presence within
its territory of aliens. This is clear from the cases involving Article 8.
- Where the authorities
of a State refuse entry or expel an alien from its territory solely for the
purpose of preventing the alien from exercising a Convention right within
the territory, or by way of sanction for the exercise of a Convention right,
the Convention will be directly engaged. This proposition is implicit in the
observations of the Commission in Agee and Omkarananda and is
expressly supported by the decision of the Court in Piermont and by
the reasoning of the Commission in Adams and Benn. The fact that, in
the latter two cases, the complainants were not, or not treated as being,
in precisely the same position as aliens for immigration purposes does not
detract from the relevance of those decisions.
- Thus, where
the authorities of a State refuse entry to an alien solely to prevent his
expressing opinions within its territory, Article 10 will be engaged. In such
a situation the application of the provisions of Article 10.2 will determine
whether or not the interference with the alien's freedom of expression is
justified.
Why has Mr Farrakhan
been excluded?
- In order to
see how the principles that we have derived from the Strasbourg jurisprudence
apply to the facts of the present case, it is necessary to determine why it
is that the Secretary of State has excluded Mr Farrakhan. In considering this
question it is not right to have regard solely to the terms of the decision
letter of 20 November 2000. That letter was the last of a series written on
behalf of the Home Secretary in relation to the application for Mr Farrakhan's
admission and must be considered in the context of the earlier letters. Thus
it is necessary to have regard to the fact that the Home Secretary carried
out the consultation described in the letter of 23 July 1999 and to the large
number of unsolicited letters for and against maintaining the exclusion of
Mr Farrakhan that he received.
- The Home Secretary
stated in his decision letter that he had taken into account the undertaking
signed by Mr Farrakhan and the fact that his current message was one of reconciliation.
In these circumstances we do not consider that the reason why the Home Secretary
excluded him was simply, or even predominantly, in order to prevent him exercising
the right of freedom of expression in this country. We suggested to Miss Carss-Frisk,
and she agreed, that, on the evidence, the reason for Mr Farrakhan's exclusion
was the risk that his presence in this country might prove a catalyst for
disorder. The Home Secretary has advanced as part of the explanation for this
risk the fact that 'sections of the community, in particular the Jewish community,
clearly associate Mr Farrakhan with anti-semitic views' and that this perception
is not without foundation.
- At paragraph
50 of his judgment, Turner J. remarked that, on a superficial level, this
case might appear to bear a striking resemblance to Otto-Preminger Institute
v Austria (1949) 19EHRR 34. In granting permission to appeal Sedley LJ
stated that, in his view, one of the main issues was 'to what extent the licence
for local intolerance given by the Otto Preminger decision ought to
affect judicial review of executive decisions in this country'.
- In Otto Preminger
the Strasbourg Court upheld the decision of the Innsbruck provincial court
to order the seizure and forfeiture of a film on the ground that its subject
matter amounted to an abusive attack on the Roman Catholic religion. The decision
has been attacked by some commentators on the basis that it went too far in
censoring freedom of expression within a Member State and it is apparent that
it is not a decision which finds favour with Sedley LJ. Turner J. considered
the resemblance of that case to the present to be superficial because, in
Otto Preminger there was evidence before the court of the effect that
the film would have on the religious majority in the Tyrol, whereas in the
present case the Secretary of State has advanced no evidence to justify his
decision.
- If the Home
Secretary had excluded Mr Farrakhan simply on the grounds that his character
or views made him a person whom a large section of the community would not
wish to see within their country, Otto Preminger might have been invoked
in support of an argument that this did not violate the Convention. But that
is not this case. The Home Secretary did not exclude Mr Farrakhan simply because
he held views that would be offensive to many. He excluded him because of
the effect that he considered that his admission would have on community relations
and the risk that meetings attended by him would be the occasion for disorder.
For this reason, which is not the same as that of Turner J, we agree that
any resemblance between this case and Otto Preminger is superficial.
- Although preventing
Mr Farrakhan from expressing his views was not the primary object of his exclusion,
the fact remains that the Home Secretary did not wish him to address meetings
in this country because he considered that such meetings might prove the occasion
for disorder. To this extent, one object of his exclusion can be said to have
been to prevent him exercising the right of freedom of expression in this
country. In these circumstances, which are not precisely covered by the Strasbourg
authorities to which we have referred, we consider that Article 10 of the
Convention was in play. The Home Secretary was correct to recognise this in
his decision letter, which also recognised the importance that is accorded
to freedom of speech by the common law.
The
approach to judicial review
- The Home Secretary
made it plain that he was balancing the importance of freedom of speech against
the risk of disorder that might ensue if Mr Farrakhan were admitted into this
country. That was an appropriate approach, for Article 10.2 recognises that
the prevention of disorder is one of the legitimate aims that can justify
placing restrictions on freedom of expression. Much argument before Turner
J and before us was directed to the approach in such circumstances to judicial
review of the Secretary of State's decision.
- Before the Human
Rights Act 1998 came into force, the approach to judicial review in this country
involved the application of the test in Associated Picture Houses Ltd v
Wednesbury Corporation [1948] 1 KB 223. It was only appropriate for the
court to overturn an administrative decision if it was one which no reasonable
decision maker could have reached. Using the language of the Strasbourg jurisprudence,
this test left a very wide margin of appreciation to the decision maker. Indeed,
the margin was far too wide to accommodate the demands of the Convention.
In deciding whether restriction of a Convention right can be justified, it
is necessary to apply the doctrine of proportionality. In applying that doctrine,
the width of the margin of appreciation that must be accorded to the decision
maker will vary, depending upon the right that is in play and the facts of
the particular case. Applying a margin of appreciation is a flexible approach;
the Wednesbury approach is not.
- For this reason,
in cases involving Convention rights, the courts have moved from the Wednesbury
test towards the application of the principle of proportionality, via the
stepping stone of the judgment of Sir Thomas Bingham MR in R v Ministry
of Defence, Ex parte Smith [1996] QB 517 at 554. The following passage
in the speech of Lord Steyn in R(Daly) v Home Secretary [2001] 2AC
532 at 547 is now generally accepted as the best source of guidance in judicial
review cases where human rights are in play:
"The
contours of the principle of proportionality are familiar. In de Freitas
v Permanent Secretary of Ministry of Agriculture, Fisheries, Lands and Housing
[1999] 1 AC 69 the Privy Council adopted a three-stage test. Lord Clyde observed,
at p80, that in determining whether a limitation (by an act, rule or decision)
is arbitrary or excessive the court should ask itself:
'Whether:
(i) the legislative objective is sufficiently important to justify limiting
a fundamental right; (ii) the measures designed to meet the legislative objective
are rationally connected to it; and (iii) the means used to impair the right
or freedom are no more than is necessary to accomplish the objective".
Clearly,
these criteria are more precise and more sophisticated than the traditional
grounds of review. What is the difference for the disposal of concrete cases?
Academic public lawyers have in remarkably similar terms elucidated the difference
between the traditional grounds of review and the proportionality approach:
see Professor Jeffrey Jowell QC, "Beyond the Rule of Law: Towards Constitutional
Judicial Review" [2000] PL 671; Professor Paul Craig, Administrative Law,
4th ed (1999), pp 561-563; Professor David Feldman, "Proportionality and the
Human Rights Act 1998", essay in The Principle of Proportionality in the Laws
of Europe edited by Evelyn Ellis (1999), pp 117, 127 et seq. The starting
point is that there is an overlap between the traditional grounds of review
and the approach of proportionality. Most cases would be decided in the same
way whichever approach is adopted. But the intensity of review is somewhat
greater under the proportionality approach. Making due allowance for important
structural differences between various convention rights, which I do not propose
to discuss, a few generalisations are perhaps permissible. I would mention
three concrete differences without suggesting that my statement is exhaustive.
First, the doctrine of proportionality may require the reviewing court to
assess the balance which the decision maker has struck, not merely whether
it is within the range of rational or reasonable decisions. Secondly, the
proportionality test may go further than the traditional grounds of review
inasmuch as it may require attention to be directed to the relative weight
accorded to interests and considerations. Thirdly, even the heightened scrutiny
test developed in R v Ministry of Defence, Ex p Smith [1996] QB 517,
554 is not necessarily appropriate to the protection of human rights."
- In the same
case at p.549 Lord Cooke of Thorndon, who agreed with Lord Steyn, suggested
that it was not merely in cases involving fundamental rights that the Wednesbury
test should be replaced with a more flexible approach:
"I
think that the day will come when it will be more widely recognised that Associated
Provincial Picture Houses Ltd v Wednesbury Corpn [1948] 1 KB 223 was an
unfortunately retrogressive decision in English administrative law, in so
far as it suggested that there are degrees of unreasonableness and that only
a very extreme degree can bring an administrative decision within the legitimate
scope of judicial invalidation. The depth of judicial review and the deference
due to administrative discretion vary with the subject matter. It may well
be, however, that the law can never be satisfied in any administrative field
merely by a finding that the decision under review is not capricious or absurd."
- When applying
a test of proportionality, the margin of appreciation or discretion accorded
to the decision maker is all important, for it is only by recognising the
margin of discretion that the court avoids substituting its own decision for
that of the decision maker. In the context of considering the margin of discretion
in the present case, it is necessary to deal with the other matter which Sedley
LJ considered to be a major issue in this case, the effect of Article 16
Article
16
- Article 16 provides:
'Nothing in Articles 10,11 and 14 shall be regarded as preventing the High
Contracting Parties from imposing restrictions on the political activity of
aliens'. The Secretary of State referred inferentially to Article 16 in his
decision letter. There is almost no reference to it in the Strasbourg jurisprudence.
In Piermont the Commission made the following comments about it:
"The
Commission observes that in placing this article in the Convention those who
drafted it were subscribing to a concept that was then prevalent in international
law, under which a general, unlimited restriction of the political activities
of aliens was thought legitimate.
The
Commission reiterates, however, that the Convention is a living instrument,
which must be interpreted in the light of present day conditions, and the
evolution of modern society."
- As we have noted,
the Commission and the Court held that, having regard to the status of Mrs
Piermont, the Article had no application.
- Mr Blake submitted
that Article 16 is, by its terms, directed at permissible restrictions on
the political rights of aliens in the host country and seems designed to preclude
a discrimination challenge where less favourable treatment is accorded to
aliens than others after admission. We agree that this conclusion is consistent
with the wording of Article 16 and of Article 1 of the Convention. On this
basis this Article appears something of an anachronism half a century after
the agreement of the Convention. We do not consider that it has direct impact
in the present case.
The
margin of discretion
- Miss Carss-Frisk
submitted that there were factors in the present case which made it appropriate
to accord a particularly wide margin of discretion to the Secretary of State.
We agree. We would identify these factors as follows. First and foremost is
the fact that this case concerns an immigration decision. As we have pointed
out, the Strasbourg Court attaches considerable weight to the right under
international law of a State to control immigration into its territory. And
the weight that this carries in the present case is the greater because the
Secretary of State is not motivated by the wish to prevent Mr Farrakhan from
expressing his views, but by concern for public order within the United Kingdom.
- The second factor
is the fact that the decision in question is the personal decision of the
Secretary of State. Nor is it a decision that he has taken lightly. The history
that we have set out at the beginning of this judgment demonstrates the very
detailed consideration, involving widespread consultation, that the Secretary
of State has given to his decision.
- The third factor
is that the Secretary of State is far better placed to reach an informed decision
as to the likely consequences of admitting Mr Farrakhan to this country than
is the Court.
- The fourth factor
is that the Secretary of State is democratically accountable for this decision.
This is underlined by the fact that s.60(9) of the 1999 Act precludes any
right of appeal where the Secretary of State has certified that he has personally
directed the exclusion of a person on the ground that this is conducive to
the public good. Mr Blake submitted that the absence of a right of appeal
required a particularly rigorous scrutiny under the process of judicial review.
This submission appeared to us tantamount to negating the effect of s.60(9).
There is no doubt that the Secretary of State's decision is subject to review,
but we consider that the effect of the legislative scheme is legitimately
to require the Court to confer a wide margin of discretion upon the Minister.
- These conclusions
gain support from the approach of the House of Lords to the discretion of
the Secretary of State to deport a person on grounds of national security
in SHDD v Rehman [2001] 3WLR 877.
- Miss Carss-Frisk
submitted that these considerations were not reflected in the judgment of
Turner J., but that he had replaced his own evaluation of the relevant facts
for that of the Minister. We consider that there is force in this submission.
- The other factor
of great relevance to the test of proportionality is the very limited extent
to which the right of freedom of expression of Mr Farrakhan was restricted.
The reality is that it was a particular forum which was denied to him rather
than the freedom to express his views. Furthermore, no restriction was placed
on his disseminating information or opinions within the United Kingdom by
any means of communication other than his presence within the country. In
making this observation we do not ignore the fact that freedom of expression
extends to receiving as well as imparting views and information and that those
within this country were not able to receive these from Mr Farrakhan face
to face.
- Sedley LJ described
the grounds for excluding Mr Farrakhan as exiguous. We have already indicated
that to ascertain the reasons for Mr Farrakhan's exclusion it is appropriate
to have regard to all the correspondence on the subject written by or on behalf
of the Secretary of State. The Home Secretary's decision had turned upon his
evaluation of risk – the risk that because of his notorious opinions a visit
by Mr Farrakhan to this country might provoke disorder. In evaluating that
risk the Home Secretary had had regard to tensions in the Middle East current
at the time of his decision. He had also had regard to the fruits of widespread
consultation and to sources of information available to him that are not available
to the Court. He had not chosen to describe his sources of information or
the purport of that information. We can see that he may have had good reason
for not disclosing his sources but feel that it would have been better had
he been less diffident about explaining the nature of the information and
advice that he had received.
- We consider
that the merits of this appeal are finely balanced, but have come to the conclusion
that the Secretary of State provided sufficient explanation for a decision
that turned on his personal, informed, assessment of risk to demonstrate that
his decision did not involve a disproportionate interference with freedom
of expression. The Secretary of State exercised a power expressly conferred
upon him by Immigration Rule 320(6), whose terms are reflected in s.60(9)
of the 1999 Act. He did so for the purpose of the prevention of disorder,
which is a legitimate aim under Article 10.2 of the Convention. His decision
struck a proportionate balance between that aim and freedom of expression,
to the extent to which that was in play on the facts of this case. This appeal
will, accordingly be allowed.