ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
The Rt. Lord Justice Stanley Burnton and
The Hon. Mr Justice Underhill
Strand, London, WC2A 2LL
B e f o r e :
Lord Justice Patten
Lord Justice McCombe
| The Queen (Lord Carlile of Berriew & others)
|- and -
|Secretary of State for the Home Department
WordWave International Limited
A Merrill Communications Company
165 Fleet Street, London EC4A 2DY
Tel No: 020 7404 1400, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
Mr James Eadie QC and Mr Robert Palmer (instructed by Treasury Solicitors) for the Respondent
Hearing dates : 15/16 January 2013
Crown Copyright ©
Lady Justice Arden:
THIS APPEAL IN OUTLINE
Outline of my decision
i) The Divisional Court had to balance the value of the appellants' article 10 right against the interests of national security and foreign policy on which the Secretary of State relied.
ii) The value of the Parliamentary appellants' exercise of their article 10 rights in this case is exceptionally high.
iii) The Divisional Court had to ask whether the interference with the Parliamentary appellants' rights was no more than necessary to achieve the Secretary of State's objectives. In the context of national security and foreign policy, this is achieved as the Divisional Court held by a review of the Secretary of State's decisions for rationality, legality and procedural irregularity, not by the substitution by the court of its own judgment on the merits.
iv) The Divisional Court's assessment of the decisions on these grounds cannot be faulted.
v) It therefore cannot be said that the Divisional Court abdicated its judicial function.
vi) Nor can it be said that the decisions gave inadequate weight to the rule of law.
vii) There was no unfairness in failing to consult the Parliamentary appellants.
viii) The same conclusions would apply to any Convention right which Mrs Rajavi may have.
Background about Mrs Rajavi
"She is a powerful advocate for a democratic non-sectarian government for Iran: hence the undoubted hostility to her of the present Iranian government. Mr Vidal-Quadras says of her that 'She represents the rights of the oppressed in Iran, from women and students, to ethnic and religious minorities. Moreover, her modern and progressive interpretation of Islam is an important and necessary example to others. …. I found Mrs Rajavi to be a true believer of gender equality and freedom of thought and religion, committed to the rule of law and a very responsible leader. She has done much to promote religious tolerance. …' "
"Face to face meetings allow MEPs and their advisers to question Mrs Rajavi and spend time with her addressing a range of sensitive issues. They could not possibly do this through other means of long distance communication."
"9. … Mrs Rajavi is a Muslim woman who stands for a free, democratic and secular Iran. She represents the rights of the oppressed in Iran, from women and students, to ethnic and religious minorities. Moreover, her modern and progressive interpretation of Islam is an important and necessary example to others. It is for these reasons that she enjoys the support of thousands of Parliamentarians around the world."
Background about PMOI and NCRI
"signally fallen short of the standards which our public law sets." (paragraph 57)
(1) the European Union (January 2009) following numerous adverse judgments from the Court of Justice of the European Union.
(2) the USA (September 2012).
(3) Canada (December 2012).
Background: Current diplomatic relations between the United Kingdom and Iran
Reasons for Secretary of State's decisions to exclude Mrs Rajavi became narrower after diplomatic relations were severely reduced in November 2011
"In particular the FCO does not agree with Lord Carlile's own assessment that Mrs Rajavi 'leads the movement for democratic change in Iran' (paragraph 22 of his witness statement)."
"The Iranian regime perceives that the United Kingdom is supportive of anti-Iranian extremist activities, including the sort historically carried out by the PMOI."
- The effect of lifting the exclusion order:"This would also be seen by the Iranians as a deliberate political move against Iran…"
- Fragile bilateral relations:
"Even when tensions periodically ease, the United Kingdom based staff members' access to Iranian officials and information from the authorities has been difficult. Demonstrations outside the Embassy have included damage to property, invasion of compounds and restriction of staff movement due to the fears for personal safety. There have also been cases where British nationals have been held in detention for long periods, often on spurious charges and sometimes without consular access being granted."
"When weighed against the serious potential effects of lifting the exclusion on the United Kingdom's interests in relation to Iran, the Secretary of State has concluded that the damage to the public interest significantly outweighs any interference with Mrs Rajavi's ability to express her views as President-elect of the NCRI and with the Parliamentarians' ability to meet her in person in London, particularly in view of the fact that Mrs Rajavi has many alternative means at her disposal for achieving these aims (e.g. meeting in France or a third country, or contact by video-link or other media)."
"6. Taking into account this change in the United Kingdom's relationship with Iran, the FCO reassessed its arguments with regard to Maryam Rajavi's current exclusion from the United Kingdom since my last written statement to the Court. The FCO has concluded that it is right to maintain our view that to lift the exclusion on Mrs Rajavi would damage existing United Kingdom interests in relation to Iran. Specifically, it would endanger the security of the Locally Engaged members of staff still employed by the British Embassy Tehran (over one hundred including our guard force), who for years have suffered severe harassment from the Iranian authorities (including the arrest in 2009 of nine members of local staff falsely accused of instigating and fuelling, on behalf of the British Government, protests after the disputed Presidential election). They continue to carry out essential work for us, such as repairs to the damage caused by the invasion of our compounds. Additionally, it could jeopardise remaining British Embassy property and assets in Iran. We are also mindful of the potential risk to British interests outside Iran, especially in the region, which could now become the target of choice for any retaliatory action against the United Kingdom. Following the attack on our Embassy, and while our assets in Tehran remain at risk, we attach greater weight now to this threat. The regime has also threatened – most recently the Head of the Judiciary, Sadeq Larijani, on 18 January – an increase in terrorism in the West in retaliation for acts and provocations, including the assassination of nuclear scientists."
"In my previous statement, I referred to the risks to the British Embassy Tehran, our staff, properties and assets. Unfortunately, our assessment of the credibility of this threat was borne out by the events of 29 November 2011, which show that Iran is prepared to act against the United Kingdom in contravention of international law on diplomatic relations. Additionally, my original list of United Kingdom interests, namely the safety of personnel and property at the British Embassy in Tehran, nuclear negotiations, consular obligations, human rights and access to officials remains valid, notwithstanding the absence of British diplomats in Tehran. Our concerns are therefore wider than foreign policy alone (as described by Baroness Boothroyd and Anne-Marie Lizin in their statements) and include, for example, United Kingdom security interests."
"We might accept greater risk to engage with a more viable and less tainted opposition group, but the balance is not compelling with [PMOI]."
Parliamentary appellants disagree with the Secretary of State over the value of engagement with PMOI
"The exclusion damages the reputation of the United Kingdom and its international standing, as the United Kingdom will be seen as being prepared to appease oppressive states by excluding an opposition leader about whose views the [Secretary of State] has no objections."
"7. It is important to note that the fear and concern expressed by Foreign Office officials that the PMOI's deproscription would lead to strong reaction from Iran, which might endanger our interests or endanger the safety of our embassy staff in Iran, never in fact materialised. Of course, the Iranian regime complained about the Court rulings, but that was to be expected. In my view, the deproscription experience showed that if we stand firm on our values and the rule of law, the Iranian regime will understand that its complaints will not get it anywhere. …"
Judgment of the Divisional Court
"36. There are certain aspects of the Secretary of State's apprehensions that I would doubt. It is scarcely believable that the Iranian government's decision whether or not to develop and to make atomic weapons will be influenced by the admission of Mrs Rajavi to the United Kingdom. However, when I come to ask myself whether it is credible that the revocation of the exclusion, and the admission into this country, of such a prominent opponent, regarded by that government no doubt as a dangerous terrorist seeking its overthrow, and the location of the Houses of Parliament for her meeting with members of the legislature, will be regarded by it as a hostile act of the United Kingdom Government, I am driven to say that it is entirely credible, indeed likely. …
38. The decisions to exclude Mrs Rajavi have been made repeatedly by the Secretary of State personally, most recently (if not previously) on the recommendation of the Secretary of State for Foreign and Commonwealth Affairs and the Parliamentary Under-Secretary of State at the FCO, Alistair Burt. If they consider that the risk is sufficiently great to justify Mrs Rajavi's exclusion, this Court is not in a position to say that is mistaken. It is this risk, of retaliation against local employees in Iran, that most influences my decision. If only one of the local employees were to be taken into custody and ill treated as a result of the admission of Mrs Rajavi, I would accept that her admission was a mistake." (emphasis added)
ANALYSIS OF THE PARTIES' SUBMISSIONS AND MY DETAILED REASONS FOR DISMISSING THIS APPEAL
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.
 In de Freitas v Permanent Secretary of Ministry of Agriculture, Fisheries, Lands and Housing  1 AC 69, 80,  3 WLR 675, the Privy Council, drawing on South African, Canadian and Zimbabwean authority, defined the questions generally to be asked in deciding whether a measure is proportionate:
(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."
This formulation has been widely cited and applied. But counsel for the Applicants (with the support of Liberty, in a valuable written intervention) suggested that the formulation was deficient in omitting reference to an overriding requirement which featured in the judgment of Dickson CJ in R v Oakes  1 SCR 103, 26 DLR (4th) 200 (SC Can), from which this approach to proportionality derives. This feature is (p 139) the need to balance the interests of society with those of individuals and groups. This is indeed an aspect which should never be overlooked or discounted. The House recognised as much in R (Razgar) v Secretary of State for the Home Department  UKHL 27,  2 AC 368, paras 17-20, 26, 27, 60, 77,  3 All ER 821, when, having suggested a series of questions which an adjudicator would have to ask and answer in deciding a Convention question, it said that the judgment on proportionality:
'must always involve the striking of a fair balance between the rights of the individual and the interests of the community which is inherent in the whole of the Convention. The severity and consequences of the interference will call for careful assessment at this stage (see para 20).' "
The first side of the scales: the value of the exercise of the article 10 rights in this case
"Freedom of expression is, of course, intrinsically important: it is valued for its own sake. But it is well recognised that it is also instrumentally important. It serves a number of broad objectives. First, it promotes the self-fulfilment of individuals in society. Secondly, in the famous words of Holmes J. (echoing John Stuart Mill), "the best test of truth is the power of the thought to get itself accepted in the competition of the market:" Abrams v. United States (1919) 250 U.S. 616, 630, per Holmes J. (dissenting). Thirdly, freedom of speech is the lifeblood of democracy. The free flow of information and ideas informs political debate. It is a safety valve: people are more ready to accept decisions that go against them if they can in principle seek to influence them. It acts as a brake on the abuse of power by public officials. It facilitates the exposure of errors in the governance and administration of justice of the country: see Stone, Seidman, Sunstein and Tushnet, Constitutional Law, 3rd ed. (1996), pp. 1078-1086."
The other side of the scales: the interests relied on as justifying a limitation on the article 10 right
Substantive proportionality review
i) The reasons relied on by the Secretary of State are now much reduced as a result of the attack on the British Embassy in November 2011 and the withdrawal of diplomatic representation;
ii) The nuclear counter-proliferation talks between the United Kingdom and Iran have ended;
iii) Diplomatic relations between the United Kingdom and Iran are virtually non-existent;
iv) Local staff have not been seriously harassed to date, even when the stringent financial sanctions were imposed on Iran;
v) The disturbances in Iran following the de-proscription of PMOI were not substantial: the demonstrators were the mothers and children of PMOI members, and were therefore not hostile to PMOI;
vi) The Iranian government apparently did not retaliate when the USA and Canada de-proscribed PMOI;
vii) The FCO have not apparently considered whether the risk of reprisals could be minimised. When POAC decided that PMOI should be de-proscribed, the FCO issued a statement. Ms Montgomery submits that it cannot be beyond the wit of diplomatic officials to explain the position to their Iranian counterparts if Mrs Rajavi is given leave to enter the United Kingdom.
viii) In the appellants' view, PMOI has a good measure of support in Iran. The Secretary of State disagrees largely on the basis of PMOI's past terrorist activities.
"THE JUSTIFICATION FOR EXCLUDING DR NAIK
 (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 (supra), at 35 and 52 – 56; 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. …
 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…
 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 (at 62 above), 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…
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…."
"In order to reach a view as to whether something is necessary in a democratic society for one of the specified reasons, and therefore proportionate, the interests of the individual have to be balanced with the rights of others or of the rest of the community. The word "necessary" can be read as implying that the rights of the individual can only be interfered with when this is strictly necessary and no more than is absolutely necessary. However, this is not how that expression works in practice. In some situations, the Strasbourg court will take the view that the national authorities are better placed to assess whether the interference is necessary when the interests of the individual are balanced with those of the community. The decision is then said to be within the "margin of appreciation" of the contracting state…. Neither the majority nor the minority [in Otto-Preminger-Institut v Austria App.No.13470/87] makes any reference at all to "no more than necessary" or "least intrusive means" or strict necessity as a criterion of proportionality. In Strasbourg jurisprudence, least intrusive means is a factor to be weighed in the balance, but it is not insisted on in every case."
Procedural proportionality review
i) As Mr Eadie QC made clear at the hearing, an exclusion decision itself is not an "immigration decision" within the meaning of section 82 of the Nationality, Immigration and Asylum Act 2002; but any refusal of entry made by reason of the decision to exclude her would be, and would give rise to a right of appeal; and
ii) The exclusion decision is not an exclusion "order".
Lord Justice Patten:
Lord Justice McCombe:
"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."
It seems to me that decisions made in this case were taken in relation to matters of essentially similar character.
"In the present case, we are concerned with fears or apprehensions, based on assessments or judgments made with the wide experience and expertise and information available, in particular to the Foreign and Commonwealth Office, which the Court is not in a position to gainsay."
I would add that the Court is still not in a position to gainsay those matters on the basis merely of rival and contrary assessments and judgments made by the Parliamentary appellants in the light of their own experience.
"The value of the Parliamentary appellants' Article 10 rights is particularly high" (paragraph 7 (ii))
I would not go so far as that. Nor would I accept to its full extent Miss Montgomery QC's submission for the appellants, as recited in paragraph 56 of Arden LJ's judgment. I accept, of course, the "value of free debate in a democratic society" and I note the observation of Stanley Burnton LJ in paragraph 28 of his judgment that,
"Where the right of free expression engaged is that of Parliamentarians, both at common law and under the Convention the justification for any restriction must be particularly strong."