COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM QUEEN’S BENCH DIVISION
The Hon. Mr. Justice Turner
London, WC2A 2LL
B e f o r e :
LORD JUSTICE POTTER
LADY JUSTICE ARDEN
| THE QUEEN ON THE APPLICATION OF LOUIS FARRAKHAN||Respondent|
|- and -|
|SECRETARY OF STATE FOR THE HOME DEPARTMENT||Appellant|
Smith Bernal Reporting Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
Nicholas Blake, QC, Matthew Ryder and Raza Husain (instructed by Christian Fisher for the Respondent)
AS APPROVED BY THE COURT
Crown Copyright ©
Lord Phillips MR:
This is the judgment of the Court
“[He] has given close attention to the current tensions in the Middle East and to the potential impact on community relations in the United Kingdom. He has concluded that a visit to the United Kingdom by [Mr Farrakhan], or the lifting of his exclusion generally, would at the present time pose an unwelcome and significant threat to community relations and in particular to relations between the Muslim and Jewish communities here and a potential threat to public order for that reason. Further, the Home Secretary remains concerned that the profile of [Mr Farrakhan’s] visit would create a risk of public disorder at those meetings.”
“There is no issue about the primacy of the Home Secretary’s judgment; nor about the need for it to be within the law. The main issues in my view are:
- To what extent Art.16 limits the applicability of Art. 10 to the Home Secretary’s exercise of his power to exclude a foreign national from the UK on public good grounds.
- 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.
Whatever the answers, the Home Secretary will still have to face up to the exiguousness of the grounds for his decision.”
The nature of the challenge
“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’.”
The legislative framework
“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 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;
(b) the leave to enter, or entry clearance, was refused in compliance with any such directions.”
The history of the exclusion of Mr Farrakhan
“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.”
“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.
“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.”
“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 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 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.
“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.”
“……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.”
“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.
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.
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.
“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.”
“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?
“….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.”
“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.”
“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.”
“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.”
“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 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.”
“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.”
Why has Mr Farrakhan been excluded?
The approach to judicial review
“The contours of the principle of proportionality are familiar. In de Freitas v Permanent Secretary of Ministry of Agriculture, Fisheries, Lands and Housing  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”  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  QB 517, 554 is not necessarily appropriate to the protection of human rights.”
“I think that the day will come when it will be more widely recognised that Associated Provincial Picture Houses Ltd v Wednesbury Corpn  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.”
“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.”
The margin of discretion