The claimant challenged the decision of the respondent to revoke his entry visa, saying ‘he was to be excluded ‘for engaging in unacceptable behaviour by making statements that attempt to justify terrorist activity and fostering hatred’.’
Held: It is settled law that the Secretary of State has the power to make an exclusion decision.
Gross LJ set out the applicable principles: ‘(1) Principle and authority: As it seems to me, the legal framework for determining this issue is furnished by the principles or propositions which follow.
First, the State has the right to control the entry of non-nationals into its territory. This is hornbook law and requires no elaboration.
Secondly, where immigration control overlaps with or results in the engagement of Art. 10 rights of freedom of expression (as it does or as must be assumed here), such control must be exercised consistently with the State’s Convention obligations.
i) To the extent that authority is needed, this proposition enjoys the support of Farrakhan [2002] EWCA Civ 606 [2002] QB 1391, . . whatever the doubts as to the status of Farrakhan as a precedent on the question of whether Art. 10 is engaged in the case of an alien outside the country, I do not think that such doubts weaken the authority of Farrakhan where Art. 10 is (or is assumed to be) engaged.
ii) Mr. Husain QC, for Dr Naik, contended vigorously that this was not an immigration case at all. I respectfully disagree. To begin with, I prefer to focus on the substance of the matter, rather than the label to be attached to the case. More than that, this is undoubtedly an ‘immigration case’, at least in the sense that the SSHD was required to consider whether Dr Naik, a non-national, should be permitted entry into this country. The true analysis is that this is an immigration case but one where the exercise of immigration control overlaps with or results in the engagement of Art. 10 rights of freedom of expression. The task for the SSHD and the Courts – in their different spheres – is to consider both these important public interests.
Thirdly, Art. 10 rights of freedom of expression are of the first importance. These rights are not, however, absolute or unqualified, as Art 10.2 makes clear. The importance of rights of freedom of expression in a democracy requires no reiteration here. Likewise, the wording of Art. 10.2 speaks for itself.
Fourthly, resolution of any tension between the important interests of immigration control and freedom of expression is achieved by way of Art. 10.2. The application of the provisions of Art. 10.2 will determine whether or not the interference with freedom of expression is justified. The exceptions contained in Art. 10.2 must be construed strictly and the need for any restrictions must be convincingly established. This approach to the construction of Art. 10 is justified both by the structure of the Article and its context; it is moreover well-established in English authority and finds an echo in the Strasbourg jurisprudence cited to us . . Manifestly too, freedom of expression, if it is to have meaning, cannot be confined to those expressing palatable views; a degree of robustness is a healthy attribute of a democratic society.
Fifthly, decisions of the SSHD to refuse entry to this country to an alien on national security or public order grounds are entitled to great weight and must, by their nature, enjoy a wide margin of appreciation (or discretion). Let it be accepted that such decisions, when resulting in the engagement of Art. 10, warrant the most careful scrutiny on the part of the Court; crucially, even so, the decision-maker is the SSHD not the Court. As Carnwath LJ expressed it . . the Court is not substituting its own view for that of the SSHD. The Court’s task remains one of review. By way of elaboration:
i) The starting point is that the SSHD’s decisions in this area are entitled to ‘great weight’, to adopt, with respect, Lord Bingham’s wording in A v Secretary of State for the Home Department [2005] 2 AC 68, at [29]. For my part, I would regard this as self evident, given the subject-matter under consideration; the ‘cost of failure’ . . is a most pertinent consideration . .
ii) Given the nature of the decision, the SSHD must be accorded a wide margin of appreciation (or discretion). This is an area where, again adopting an observation of Lord Bingham (loc cit), ‘reasonable and informed minds may differ’. Take, for instance, the ‘Prevent’ strand in the UK government’s counter-terrorism strategy, to which reference was made in the evidence; judgment calls of no little difficulty will be required in determining the extent, nature and termination of engagement with those of extreme views. Further and as will be emphasised below, it is of the first importance that the Court does not substitute its views for those of the SSHD; a reminder that the SSHD enjoys a wide discretion serves as a useful warning to the Court against straying into territory more properly that of the SSHD.
iii) As it seems to me (and with great respect to the extensive discussion of such matters in the literature), it matters little whether an approach which accords great weight and a wide margin of appreciation to decisions of the SSHD in this area is best described in terms of ‘deference’ or ‘demarcation of functions’ (Lord Bingham, loc cit). The point is the same. Put simply and whether as a matter of ‘deference’ or ‘demarcation’, in areas such as national security or public order, the SSHD is likely to have advice and a perspective not or not readily available to the Court.
iv) Nothing in the above observations precludes the Court from reviewing the decision of the SSHD by reference to what Carnwath LJ has termed ([62] above) ‘public law and human rights principles’. Where Convention rights are involved, that review will be an ‘intensive review’: A v Secretary of State for the Home Department, supra, headnote at p.69. Such a review would (as appropriate, see Carnwath LJ at [48] above) extend to the rationality, legality, procedural regularity and proportionality of a Ministerial decision. If it is necessary, which I am not sure it is, to add descriptive phrases to ‘intensive review’, then, no doubt, intensive review will involve ‘the most careful scrutiny’: Cox v Turkey (supra), at [38].
v) But, whatever the intensity of the review, it is crucial that the Court should not substitute its views for those of the SSHD. The Court does not assume the role of the decision-maker; the Court’s task is and remains one of review. It follows that a measure of judicial reserve or restraint must be prudent in this sphere – serving to underline the Court’s proper role and to guard against usurping, however inadvertently, the role of the decision-maker. In any event, a Court will not lightly overturn a decision of the SSHD as to what is conducive to the public good, still less a decision made by the SSHD personally.’
Judges:
Carnwath, Jackson, Gross LJJ
Citations:
[2011] EWCA Civ 1546
Links:
Jurisdiction:
England and Wales
Citing:
Appeal from – Naik v Secretary of State for The Home Department and Another Admn 5-Nov-2010
The claimant challenged an order preventing her visiting the UK on the grounds of it not being conducive to the public good. . .
Cited by:
Cited – Campbell (Exclusion; Zambrano) Jamaica UTIAC 21-Mar-2013
UTIAC 1. Exclusion decisions are not be confused with exclusion orders.
2. It is settled law that the Secretary of State has the power to make an exclusion decision: see R (on the application of Naik) v . .
Cited – Lord Carlile and Others v Secretary of State for The Home Department Admn 16-Mar-2012
The claimant had invited an Iranian dissident to speak in Parliament, and now challenged the decision of the Home Secretary to refuse her a visa on the basis that her exclusion was not conducive to the public good. She was a member of an . .
Cited – Lord Carlile of Berriew QC, and Others, Regina (on The Application of) v Secretary of State for The Home Department SC 12-Nov-2014
The claimant had supported the grant of a visa to a woman in order to speak to members of Parliament who was de facto leader of an Iranian organsation which had in the past supported terrorism and had been proscribed in the UK, but that proscription . .
Lists of cited by and citing cases may be incomplete.
Immigration, Human Rights
Updated: 04 October 2022; Ref: scu.450110
