England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL
(IMMIGRATION AND ASYLUM CHAMBER)

		Royal Courts of Justice Strand, London, WC2A 2LL
		10/11/2015

Lord Justice Richards:

1. The appellant is one of five Cuban nationals, known as the "Cuban Five", who were convicted in the United States of America in June 2001 on charges relating to their activities as intelligence agents for the Cuban government. The appellant himself was sentenced to 15 years' imprisonment, which he has now served. Serious concerns have been expressed over many years by international human rights organisations, among others, about the convictions and sentences imposed and especially about the fairness of the trial. In 2014 a group of UK parliamentarians invited the appellant to meet with them in the Palace of Westminster to discuss the case. The appellant applied for entry clearance to visit the United Kingdom for that meeting, but the application was refused pursuant to paragraph 320(2) of the Immigration Rules by reason of his conviction and sentence. The refusal has been maintained in the course of the present proceedings. The issue in the proceedings is whether the refusal of entry clearance is lawful; in particular whether it is compatible with article 10 of the European Convention on Human Rights.
2. Much of the legal framework for consideration of the case is provided by the decision of the Supreme Court in R (Lord Carlile of Berriew and Others) v Secretary of State for the Home Department [2014] UKSC 60, [2015] AC 945, which also concerned a refusal of entry into the United Kingdom to take up an invitation from a group of UK parliamentarians to attend meetings with them in the Palace of Westminster. There are, however, important differences in the circumstances of the two cases which mean that the result in the present case is not dictated by the outcome in Lord Carlile of Berriew.

The case of the Cuban Five

3. In the US criminal proceedings against them, the members of the Cuban Five were alleged to have infiltrated Cuban-American groups in Florida which supported regime change in Cuba. After a trial lasting nearly seven months before the Federal District Court in Miami, Florida, they were convicted in June 2001 on counts that included acting and conspiring to act as unregistered agents of a foreign government; fraud and misuse of identity documents; and, in the case of three of the accused, conspiracy to gather and transmit national defence information. They were sentenced in December 2001 to terms ranging from 15 years' imprisonment (the sentence in the appellant's case) to life imprisonment. One of them also received a second life sentence for conspiracy to murder.
4. The men did not deny acting as unregistered agents for the Cuban government but they did deny the most serious charges against them, contending that their role was to focus on Cuban exile groups responsible for hostile acts against Cuba, and visible signs of US military action towards Cuba, rather than to breach US national security.
5. In August 2005 a three-judge panel of the US Court of Appeals for the 11^th Circuit unanimously overturned the convictions on the basis that pervasive community hostility in the trial venue against the Castro regime combined with other factors to prejudice their right to a fair trial. The court ordered a new trial outside Miami. That ruling was, however, reversed in August 2006 (by a majority of 10 to 2) by the same Court of Appeals sitting en banc.
6. In June 2008 a three-judge panel of the Court of Appeals ruled on other grounds of appeal, upholding the convictions in all five cases but vacating part of the sentences imposed on three of the men, with the result that their life sentences were reduced to lengthy custodial terms. The appellant's sentence was not affected.
7. In June 2009 the US Supreme Court denied a petition for leave to appeal against the convictions.
8. The case had been taken up by international human rights organisations while it was still proceeding before the US courts. In May 2005, the United Nations Working Group on Arbitrary Detention adopted an opinion on the case in which it found that "the trial did not take place in the climate of objectivity and impartiality that is required in order to conform to the standards of a fair trial as defined in article 14 of the International Covenant on Civil and Political Rights" (paragraph 29) and concluded that that and other factors combined to "confer an arbitrary character on the deprivation of liberty of these five persons" (paragraph 31).
9. In 2010, Amnesty International published a report on the case. The section of the report containing a summary of the organisation's concerns included the following:

"Amnesty International takes no position on whether the Cuban Five are guilty or innocent of the charges for which they have been convicted. However, having reviewed the case extensively over a number of years, the organization believes that there are serious doubts about the fairness and impartiality of their trial which have not been resolved on appeal.

Amnesty International's concerns are based on a combination of factors. A central, underlying concern relates to the fairness of holding the trial in Miami, given the pervasive community hostility towards the Cuban government in the area and media and other events which took place before and during the trial. There is evidence to suggest that these factors made it impossible to ensure a wholly impartial jury, despite the efforts of the trial judge in this regard. The right to a trial by a competent, independent and impartial tribunal is guaranteed under Article 10 of the Universal Declaration of Human Rights (UDHR) and Article 14 of the ICCPR, and is fundamental to the right to a fair trial. In order for such a right to be guaranteed, every trial must not only be fair but be seen to be fair. As described in more detail below, there is serious doubt that this principle was fulfilled in this case. Amnesty International is concerned that the Supreme Court declined to hear the appeal on this and several other key issues in the case, despite the fact that judicial opinion in the lower courts has been deeply divided.

…

The petition for a Writ of Certiorari (leave to appeal) to the US Supreme Court was supported by amicus curiae briefs submitted on behalf of numerous organizations and individuals, including 10 Nobel prize winners, the bar associations of various countries and other legal bodies …. Most of the amicus briefs focused their concerns on the right of criminal defendants to an impartial jury and the prejudicial impact of the trial venue in this regard …."

10. This was followed in the report by a more detailed discussion of the concerns about the fairness of the trial, including an analysis of the judicial decisions at each relevant stage. The report concluded:

"Amnesty International recognizes that the case brought against the five Cuban men is a complex case in which the defendants were charged with serious crimes. They were afforded independent counsel and were tried before a jury in a US criminal court following rules of criminal procedure which do not on their face violate international fair trial norms, and with full rights of appeal. However, the organization believes that the concerns outlined above combine to raise serious doubts about the fairness of the proceedings leading to their conviction, in particular the prejudicial impact of publicity about the case on a jury in Miami. Amnesty International hopes that these concerns can still be given due consideration by the appropriate appeal channels. Should the legal appeals process not provide a timely remedy, and given the long prison terms imposed and length of time the prisoners have already served, Amnesty International is supporting calls for a review of the case by the US executive authorities through the clemency process or other appropriate means."

11. In March 2014, a two day International Commission of Inquiry into the case of the Cuban Five took place in London. The three Commissioners were a former Chief Justice of India, a former Judge of the French Cour de Cassation, and a former Justice of the Constitutional Court of South Africa. The appellant, being the first of the five to be released, was intended to be the primary witness but he was refused entry clearance to travel to the United Kingdom for the purpose and, as the report of the inquiry expressed it, "was therefore only able to present partial testimony by Skype". The refusal of entry clearance on that occasion was the subject of an unsuccessful judicial review challenge the details of which do not need to be considered for the purposes of the present appeal.
12. In the key findings set out in the report, the Commissioners (a) urged the US President to pardon all five men and to release immediately and unconditionally those still in prison, (b) expressed the view that no conduct of any of the men was aimed at the United States of America or its President, and (c) stated that the granting of unconditional Presidential pardons had the real potential to achieve effective justice for the men and to contribute substantially to the normalisation of relations between the United States of America and Cuba and to represent a meaningful stride towards world justice and world peace. The first of the reasons given for the course of action put forward was that "There are serious concerns about whether any of these people have had the full benefit of the fundamental right to a fair and speedy trial before an independent and impartial tribunal or Court, recognized universally in the International Covenant on Civil and Political Rights as ratified by the United States of America".
13. There has recently been a move towards normalisation of relations between the United States of America and Cuba. One aspect of that is that the Cuban Five have had their sentences commuted by a legal process instituted by the US Government, and those who were still in prison have been released and returned to Cuba. But their convictions still stand and concerns remain about the fairness of their trial.

The present proceedings

14. It is against the background discussed above that, by letter dated 7 July 2014 signed by Jeremy Corbyn MP, Baroness Angela Smith and 26 further Members of Parliament, an "official invitation" was given to the appellant to visit the United Kingdom in early September 2014 for a series of meetings in the Palace of Westminster to discuss the case of the Cuban Five and the humanitarian appeal in respect of the three men who remained in prison at that time. The letter continued:

"We have followed this case over a number of years and 126 of our fellow Members of Parliament signed a parliamentary motion on this issue in September 2012. This will give you some idea of the amount of interest there is here in this case.

We are very keen to meet with you in person so that we can learn first-hand from your experiences, and better understand the detailed history of this important case."

15. Pursuant to that invitation, on 8 August 2014 the appellant applied from Cuba for entry clearance to visit the United Kingdom for 5 days to attend a meeting to be held at the House of Commons on 10 September 2014. The parliamentarians' letter of 7 July 2015 was one of the documents submitted in support of the application.
16. By a decision dated 27 August 2014, the application was refused by an Entry Clearance Officer ("the ECO") under paragraph 320(2)(b) of the Immigration Rules.
17. An urgent application to the Upper Tribunal for permission to apply for judicial review was refused first on the papers and then by Upper Tribunal Judge Jordan on an oral renewal on 4 September 2014. On a further application to the Court of Appeal, interim relief to enable the appellant's attendance at the proposed September 2014 meeting was refused but permission to appeal against the order of Upper Tribunal Jordan was granted.
18. A number of the MP signatories to the invitation letter of 7 July 2014 were subsequently granted permission to intervene in the appeal. Two have dropped out since that time, having lost their seat in Parliament. Those remaining as interveners are Jeremy Corbyn MP, Grahame Morris MP, Dave Anderson MP, John McDonnell MP, Hywel Williams MP and Kelvin Hopkins MP. Whilst counsel for the interveners placed emphasis on the fact that Mr Corbyn is now Leader of Her Majesty's Opposition, the court was given to understand that the invitation and the intervention are being pursued by those concerned in their capacity as individual MPs rather than as a matter of official Opposition policy.
19. Although the decision under challenge related to an application for entry clearance to attend a meeting in September 2014, well over a year ago, and the three members of the Cuban Five who were still in prison at the date of the invitation have since been released, I am satisfied that there nevertheless remains a live issue and that the claim for judicial review has not become academic. The written submissions on behalf of the interveners state:

"8. … Those Interveners who remain in Parliament retain their desire to meet the Appellant. Further, a large body of other parliamentarians are interested in meeting the Appellant in person.

9. The Interveners regard their invitation to the Appellant to come to the United Kingdom as remaining open. The Interveners regard it as impractical for them to travel outside of the United Kingdom as a group in order to meet the Appellant. Their experience is that teleconferencing is an impractical method to receive information from the Appellant. The Interveners and their colleagues require the presence of the Appellant in Parliament."

The issues in the appeal

20. The ECO's original decision remains the formal target of challenge and the respondent is formally the ECO, but it was made clear to us that the Secretary of State has a direct interest in the case and stands behind the ECO. Indeed, it was apparent that Mr Waite, counsel for the ECO, was taking instructions from the Secretary of State. Moreover, since the date of the original decision the issues and evidence have moved on very significantly. At the hearing of the appeal, the parties adopted a sensibly pragmatic approach to all of this. Mr Waite invited the court, for the purposes of the appeal, to treat his skeleton argument as reflecting the approach of both the ECO and the Secretary of State to the representations submitted since the original decision was taken. We were invited in effect to proceed on the basis that a fresh decision had been taken and that the refusal of entry clearance had been affirmed for the reasons set out in the skeleton argument. I think it right to accede to that invitation. It enables the court to focus on what really matters now, rather than spending time on how the case looked at the time when the original decision was made.
21. The issue for this court on the appeal itself is strictly whether the Upper Tribunal was wrong to refuse permission to the appellant to apply for judicial review. The parties were in agreement, however, that if this court took the view that permission to apply for judicial review should have been granted, we should grant such permission, reserve the substantive judicial review claim to ourselves and proceed to determine it on the basis of the material before us and the submissions we have heard.
22. The good sense displayed by counsel extended to Miss Jegarajah's oral submissions on the substance of the appellant's case. She avoided some of the particularly problematic features of the appellant's previous written submissions, notably the suggestion that this court should examine the merits of the allegations that the appellant's trial was unfair and that his conviction was politically motivated. Whilst spending more time than was necessary on the "exceptional circumstances" provision of paragraph 320(2) of the Immigration Rules (see below), she made common cause with the intervener MPs in focusing ultimately on the contention that the refusal of entry clearance to enable the appellant to take up their invitation to attend a meeting with them is a disproportionate interference with their rights under article 10 ECHR. That is the heart of the appeal.

Paragraph 320(2) of the Immigration Rules

23. Paragraph 320 of the Immigration Rules provides, so far as material:

"320. In addition to the grounds of refusal of entry clearance or leave to enter set out in Parts 2-8 of these Rules, and subject to paragraph 321 below, the following grounds for the refusal of entry clearance or leave to enter apply:

Grounds on which entry clearance or leave to enter the United Kingdom is to be refused

…

(2) the fact that the person seeking entry to the United Kingdom:

(a) is currently the subject of a deportation order;

(b) has been convicted of an offence for which they have been sentenced to a period of imprisonment of at least 4 years;

(c) has been convicted of an offence for which they have been sentenced to a period of imprisonment of at least 12 months but less than 4 years, unless a period of 10 years has passed since the end of the sentence; or

(d) has been convicted of an offence for which they have been sentenced to a period of imprisonment of less than 12 months, unless a period of 5 years has passed since the end of the sentence.

Where this paragraph applies, unless refusal would be contrary to the Human Rights Convention or the Convention and Protocol relating to the Status of Refugees, it will only be in exceptional circumstances that the public interest in maintaining refusal will be outweighed by compelling factors."

24. The original decision of the ECO found that the appellant fell within paragraph 320(2)(b) and that there were no "exceptional circumstances" to justify the grant of entry clearance. The ECHR, in particular article 10, became a feature of the case only later. The written submissions on behalf of the appellant, and some of Miss Jegarajah's oral submissions, wrapped up the arguments under article 10 with the question whether there were exceptional circumstances justifying the grant of entry clearance. It is clear from the wording of paragraph 320(2), however, that the question of exceptional circumstances is distinct from the question whether refusal of entry clearance would be contrary to the ECHR. If refusal would be contrary to article 10, that is an independent reason for entry clearance to be granted. If refusal would not be contrary to article 10, it is difficult to see how exceptional circumstances could be established by reference to article 10; but it is sufficient in any event to concentrate on article 10 without complicating the analysis by considering whether the circumstances are exceptional within the meaning of the rule.
25. The background to, and purpose of, paragraph 320(2) are explained in Mr Waite's skeleton argument and are not in dispute. The provision was laid before Parliament pursuant to section 3(2) of the Immigration Act 1971 by way of a statement of changes to the Immigration Rules on 22 November 2012. It was accompanied by a statement from the Secretary of State in these terms:

"… I am also creating a more robust, clear and transparent criminality framework against which immigration applications will be assessed. At present, there are few specific thresholds in the Immigration Rules. Much is left to discretion, except at the settlement stage where an unspent conviction results in mandatory refusal. There is some advantage to this flexibility in that it allows discretion to deal with hard cases, but it also means that there is a lack of consistency in dealing with offences. These changes will make it clearer about the level of offending that will lead to refusal."

26. The period of 4 years or more in paragraph 320(2)(b) was chosen because it correlates with the length of sentence under UK law which prevents a sentence from becoming spent under the Rehabilitation of Offenders Act 1974. The periods of 12 months and 4 years in paragraph 320(2) also correspond in broad terms to the regime applicable to the deportation of foreign national offenders from the United Kingdom, as set out in Part 13 of the Immigration Rules and in primary legislation. Part 13 was amended in 2012 to make special provision for those sentenced to terms of imprisonment of 12 months and 4 years respectively. The same principles are now reflected in section 117C of the Immigration Act 2014, concerning the weight to be given, in the context of article 8 ECHR, to the public interest in the deportation of foreign criminals.
27. Against that background, the purpose behind paragraph 320(2) is expressed as follows:

i) To ensure – in the form of a clear, consistent and robust rule – that those who have committed serious criminal offences overseas are not permitted to enter the United Kingdom (save where this would result in a breach of human rights or in other exceptional circumstances). Four years' imprisonment is considered to be indicative of a level of seriousness in the individual's offending which makes their admittance to the United Kingdom undesirable (on a permanent basis) on the ground of preventing crime and disorder and the maintenance of fair, firm and effective immigration control.

ii) To introduce a greater degree of transparency and consistency into decisions regarding the grant of leave to those in the above category by establishing a clear threshold against which applications will be judged. The Secretary of State considers (in particular) that it is in the public interest that those who have served sentences above the relevant thresholds understand in clear terms that they will not in general be permitted to enter the United Kingdom.

iii) To maintain public confidence in the immigration system by stipulating (again in the form of a clear rule) that those who have engaged in serious criminality overseas (as indicated by the length of their sentence) will not in general be permitted to enter the country.

28. As regards the public interest factors relevant to the treatment of serious criminality, Mr Waite cited paragraph 15 of the judgment of Wilson LJ (as he then was) in OH (Serbia) v Secretary of State for the Home Department [2008] EWCA Civ 694. That case concerned deportation from the United Kingdom but Mr Waite submitted that Wilson LJ's observations are equally applicable, with the necessary modifications, to the present context. They are that (i) the risk of reoffending is one facet of the public interest but, in the case of very serious crimes, not the most important facet; (ii) another important facet is the need to deter foreign nationals from committing serious crimes by leading them to understand that, whatever the other circumstances, there may well be deportation (or in this case the refusal of entry clearance); and (iii) a further important facet is the role of a deportation order (or in this case the refusal of entry clearance) as an expression of society's revulsion at serious crimes and in building public confidence in the treatment of foreign nationals who have committed serious crimes.

Article 10 in the parliamentary context

29. Article 10 provides:

"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 ….

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."

30. The judgments of the Supreme Court in Lord Carlile of Berriew (cited above) underline the importance of article 10 both generally and in the particular context of meetings with parliamentarians. In that case an invitation had been extended by members of the House of Commons and the House of Lords to a dissident Iranian politician, Mrs Rajavi, to visit them in London to discuss issues concerning human rights and democracy in Iran. Mrs Rajavi had been denied entry into the United Kingdom since 1997 on the ground that her exclusion was conducive to the public good. Despite her wish to take up the parliamentary invitation, the Home Secretary, on the advice of the Foreign Secretary, had maintained her exclusion on the grounds that her entry to the United Kingdom would risk jeopardising the United Kingdom's economic interests and its diplomatic relationship with Iran and might provoke a violent reaction in Iran resulting in damage to British property there and endangering the safety of British and local personnel. Those weighty public interest considerations, which are very different from anything to be found in the present case, were highly relevant to the proportionality balancing exercise under article 10.2. They also provided the context for, but do not detract from the relevance of, the general statements of principle to be found in the judgments.
31. On the general importance of the rights protected by article 10.1, Lord Sumption said this:

"13. It is well established in the jurisprudence of the European Court of Human Rights that the more important the right, the more difficult it will be to justify any interference with it. For this purpose, freedom of expression has always been treated as one of the core rights protected by the Convention. It 'constitutes one of the essential foundations of a democratic society and one of the basic conditions for its progress and for each individual's self-fulfilment' …. The exceptions in article 10.2 must therefore be 'construed strictly and the need of any restrictions must be established convincingly' ….".

32. Lord Neuberger brought in the parliamentary context in this way:

"61. The ground on which it is said that the decision is unlawful is that the concern on which it is based represents an insufficient justification for interfering with the article 10 rights of Mrs Rajavi and of those many Members of Parliament and Peers who wish to meet her in London in order to discuss the important issue of Iranian democracy. There is no doubt that, if it stands, the decision will impede such discussions; nor is there any doubt that such discussions are at the top of the hierarchy of free speech, as they constitute political communications."

33. Lady Hale made similar points in even more forthright terms:

"90. … [Article 10.1] covers the right of Mrs Rajavi and the parliamentarians both to receive and to impart information and ideas without state interference. And they have this right regardless of frontiers.

91. These are hugely important rights. Freedom of speech, and particularly political speech, is the foundation of any democracy. Without it, how can the electorate know how to make up their minds on the difficult issues they have to confront? How can they decide whether or not to support the Government in the actions it wishes to take? This is all the more important, the larger the issues at stake. There are few, if any, issues larger and more rapidly changing than the political and military situation in the Middle East at present ….

…

93. This case is also unusual in that the claimants are senior and distinguished parliamentarians, many of whom have experience which is directly relevant to the questions at issue here. Indeed, they are much better qualified to assess the weight of the Government's objections to Mrs Rajavi coming to address them than are we. But the very distinction of the people who wish to meet her, and of the place where they wish to meet her, gives to the meeting a public and a symbolic importance which it would not otherwise have."

34. Lord Kerr placed even greater emphasis on the parliamentary context, though it has to be kept in mind that he dissented in concluding that the decision to maintain the exclusion of Mrs Rajavi from the United Kingdom was disproportionate. He ended his judgment as follows:

"180. By contrast, the interference with the appellants' article 10 rights is direct and immediate. Article 10 rights are, in any context, of especial significance but the critical importance of free speech in this case should not be underestimated. Our Parliament is the sovereign part of our constitution. Its laws prevail over everything else. The courts accord greater deference to the decisions of Parliament than to those of any other body. When a distinguished group of parliamentarians wishes, in the interests of democracy, to conduct a face-to-face exchange with someone whose views they consider to be of critical importance, only evidence of the most compelling kind will be sufficient to deny them their right to do so. This court has a bounden duty to uphold that right unless convinced of the inescapable need to interfere with it. I have not been brought to that point of conviction. I would therefore allow the appeal and quash the decision to maintain the exclusion of Mrs Rajavi from the United Kingdom."

35. The judgments in Lord Carlile of Berriew also explain the general approach the court should adopt when assessing the proportionality of an interference with article 10 rights. The point is expressed in different ways in the different judgments, but there is broad agreement that it is for the court to form its own view on the proportionality balance whilst giving appropriate weight (which will depend on context) to the view of the primary decision-maker. I think it sufficient to quote from the judgment of Lord Neuberger:

"57. The courts accordingly are now frequently called on to review, and, where appropriate, to overturn, decisions of the executive, whether government ministers, local authorities, or other administrative bodies – as can be seen from perusing the law reports. Judges should always be vigilant and fearless in carrying out their duty to ensure that individuals' legal rights are not infringed by the executive. But judges must also bear in mind that any decision of the executive has to be accorded respect – in general because the executive is the primary decision-maker, and in particular where the decision is based on an assessment which the executive is peculiarly well equipped to make and the judiciary is not. However, I agree with what Lord Kerr of Tonaghmore JSC says in paras 137 and 147, namely that, whatever the issue, once a Convention right is affected by a decision of the executive, the court has a duty to decide for itself whether the decision strikes a fair balance between the rights of an individual or individuals and the interests of the community as a whole.

…

67. Having said that, it remains the case that, where human rights are adversely affected by an executive decision, the court must form its own view on the proportionality of the decision, or what is sometimes referred to as the balancing exercise involved in the decision. That was made clear by all members of the appellate committee in Belfast City Council v Miss Behavin' Ltd [2007] 1 WLR 1420, paras 13, 24, 31, 44 and 97, applying R (SB) v Governors of Denbigh High School [2007] 1 AC 100. More recently, the point was illuminatingly discussed by Lord Reed JSC in Bank Mellat v HM Treasury (No.2) [2014] AC 700, 788-791, paras 68-76 . As Lord Reed JSC made clear at para 71, while proportionality is ultimately a matter for the court, it 'does not … entitle [domestic] courts simply to substitute their own assessment for that of the decision-maker', and he went on to say that

'the degree of restraint practised by [domestic] courts in applying the principle of proportionality, and the extent to which they will respect the judgment of the primary decision-maker, will depend on the context, and will in part reflect national traditions and institutional culture'.

The same point was made by Lord Sumption JSC in a passage he quotes on this appeal in para 21. It is also right to bear in mind Lord Bingham's remarks in para 29 of A v Secretary of State for the Home Department [2005] 2 AC 68, and Lord Reed JSC's remarks in para 93 of Bank Mellat (No.2), quoted by Lord Sumption JSC in para 33.

68. Accordingly, even where, as here, the relevant decision maker has carried out the balancing exercise, and has not made any errors of primary fact or principle and has not reached an irrational conclusion, so that the only issue is the proportionality of the decision, the court cannot simply frank the decision, but it must give the decision appropriate weight, and that weight may be decisive. The weight to be given to the decision must depend on the type of decision involved, and the reasons for it. There is a spectrum of types of decision, ranging from those based on factors on which judges have the evidence, the experience, the knowledge, and the institutional legitimacy to be able to form their own view with confidence, to those based on factors in respect of which judges cannot claim any such competence, and where only exceptional circumstances would justify judicial interference, in the absence of errors of fact, misunderstandings, failure to take into account relevant material, taking into account irrelevant material or irrationality."

I see no fundamental difference between that passage and what was said on the question of general approach by Lord Sumption at paragraphs 19-34, by Lady Hale at paragraphs 104-105, by Lord Clarke at paragraph 115 and by Lord Kerr at paragraphs 152-155 (albeit Lord Kerr dissented in the conclusion to be reached in applying that approach to the particular facts of the case).

36. Since the facts of Lord Carlile of Berriew case were so different from those of the present case, it is not useful to examine in detail the way in which the members of the court applied the relevant principles to those facts or the conclusions they reached. A few of the observations made are, however, relevant to the assessment of proportionality in the present case and will be referred to below when I consider the application of article 10.

The application of article 10 in the present case

37. It is common ground that the article 10 rights of the intervener MPs are engaged and can be taken into account notwithstanding that, by contrast with Lord Carlile of Berriew, the parliamentarians concerned are not themselves claimants in the judicial review proceedings. Whatever the legal niceties of the position, this represents an eminently sensible approach, enabling the court to determine the substance of the issues before it. The issues can, moreover, be determined adequately by reference to the article 10 rights of the intervener MPs, without the need to consider the position of other parliamentarians who wish to meet the appellant or give separate consideration to the question of the appellant's own rights under article 10, as a Cuban national resident in Cuba but wishing to attend a meeting with parliamentarians in the United Kingdom.
38. The importance of the article 10 rights of the MPs is apparent from the passages quoted above from Lord Carlile of Berriew. Their right to receive and impart information is a matter to which great weight should be attached. The subject-matter of the meeting they wish to have with the appellant could not realistically be said to have the same importance as the proposed meeting in Lord Carlile of Berriew (human rights and democracy in Iran), but the matters set out at paragraphs 8-12 above show that the case of the Cuban Five raises issues of genuine and continuing concern among international human rights organisations and others.
39. It is common ground that the refusal of entry clearance to the appellant amounts to an interference with the MPs' article 10 rights. It is, however, a limited interference. It prevents them from holding the face to face meeting they want to have with the appellant in the Palace of Westminster, but it does not stop them from communicating with him by other means, including video conferencing (facilities for which are available within Parliament). The same point was made in Lord Carlile of Berriew. Lord Sumption put it in this way:

"44. … I do not doubt that a face-to-face meeting between the parliamentarians and Mrs Rajavi is the most effective way of conducting their discussions. I would accept that the proposed venue (the Palace of Westminster) and the proposed attenders (members of the two Houses of Parliament) both add symbolic value to an occasion intended to promote democratic values …. But Mrs Rajavi has not been denied the right to express her views. Nor have English parliamentarians or anyone else been denied the right to receive them. Putting the matter at its highest, the Secretary of State's decision deprives them of the use of one method and one location for their exchanges. It may be that the decision rules out the best method and the best venue for the purpose. For that reason it would be wrong to suggest that such a restriction is trivial. It is not. Nor did the Secretary of State say that it was. The restriction is fairly described in her reasons as 'limited' …."

40. Lady Hale expressed the point as follows:

"94. The Secretary of State originally argued that there was no interference with the article 10 right by refusing Mrs Rajavi permission to come here to meet the parliamentarians. They could always go to Paris to meet her. Or they could exchange views by audio- or video-conferencing methods (which these days are so effective that they are regularly used in court proceedings). But it was soon accepted that to prevent them from meeting face to face in the Houses of Parliament is indeed an interference with their rights. It would be much harder for the numbers of parliamentarians who wish to meet Mrs Rajavi to do so in any other way. There is also the important symbolic value of a meeting in the Houses of Parliament. On the other hand, it must also be accepted that, as there are other ways in which the parliamentarians could communicate with Mrs Rajavi, the interference is not as serious as it would be if they were banned from all forms of communication with her."

41. There is nothing about the present case to distinguish it materially in those respects from Lord Carlile of Berriew. The evidence does, however, underline the drawbacks of communication by video link in this context. A witness statement of Graham Morris MP, one of the interveners, states that in his experience the standard of seminars or meetings has been significantly diminished when video links have been used for parliamentary committee meetings, because (i) although rooms are booked in advance they are often changed at the last minute, making it extremely difficult if not impossible to guarantee timely video link discussions; (ii) the quality and sound of the link is not of a high standard; and (iii) for people with hearing difficulties, even with a hearing loop, the video link does not provide very good sound quality. He also stresses that the other MPs he has consulted have all made it clear that they would wish to have one-to-one chats with the appellant and to be able to speak privately and in confidence with him, which could not be done via video link.
42. Lady Hale refers to the regular use of video-conferencing in court proceedings. It has recently been held that an out of country appeal even against a decision as important as a deportation decision is generally compatible with the procedural requirements of article 8 of the ECHR, in part because evidence can be given by video-link or another form of two-way electronic communication: see R (Kiarie and Byndloss) v Secretary of State for the Home Department [2015] EWCA Civ 1020 at paragraphs 55-56, 60 and 63-65. But this does not affect the point that denial of a face-to-face meeting constitutes an interference, albeit a limited interference, with the MPs' article 10 rights in this case.
43. It is common ground that the interference with article 10 rights is in pursuit of a legitimate aim, namely the prevention of crime and disorder and the maintenance of firm and effective immigration control.
44. In deciding whether the interference is proportionate, weight must be given to the general rule laid down by paragraph 320(2)(b) that entry clearance must be refused where a person has been convicted of an offence for which they have been sentenced to a period of imprisonment of at least 4 years, and to the purpose of that rule and of paragraph 320(2) as a whole (as to which, see paragraphs 25-28 above). Those matters reflect a political judgment by the Secretary of State, endorsed by Parliament via the negative resolution procedure. It is also the Secretary of State's view, as set out in Mr Waite's skeleton argument, that the objectives behind the rule are capable of being significantly undermined if the 4 year threshold is departed from in circumstances which are less than compelling and that the circumstances of the present case are less than compelling. A further aspect of the Secretary of State's reasoning is that the offences of which the appellant was convicted were very serious indeed and that the overall sentence of 15 years far exceeds the 4 year threshold in paragraph 320(2). She considers that the rule would be significantly undermined if, despite exceeding the threshold by such a wide margin, she was obliged to disapply the rule in the face of a limited interference with fundamental rights. That assessment by the Secretary of State, in relation to a matter falling squarely within an area for which she is made responsible by statute, is itself a matter to which weight should be attached.
45. It must be borne in mind, however, that we are concerned here not with any question of "disapplying" paragraph 320(2)(b) but with the application of an exception that is built into paragraph 320(2) itself. The fact that the paragraph not only provides for exceptions where refusal of entry clearance would be in breach of the ECHR or the Refugee Convention, but also allows for the separate possibility of exceptional circumstances where the public interest in maintaining refusal will be outweighed by compelling factors, serves as a reminder that the 4 year threshold is a general rule, not an absolute rule.
46. Further, the general rule has not been formulated as a considered response by the Secretary of State to the circumstances of the rather unusual type of case we are dealing with here. This means that in the relevant proportionality analysis rather lesser weight attaches to the generalised assessment of the Secretary of State regarding the balance to be struck between the public interest and individuals' rights, as reflected in the general rule in paragraph 320(2), than would otherwise be the case: see SS (Congo) v Secretary of State for the Home Department [2015] EWCA Civ 387, paragraphs 13-17.
47. What is sought in this case is, moreover, only a small departure from the general rule: the appellant seeks leave to enter the United Kingdom for just a few days in order to meet with the MPs. There is no suggestion that he is at risk of overstaying at the end of that period. The seriousness of the appellant's conviction and the length of his sentence must be set against the fact that the very reason why the MPs wish to meet him is the existence of genuine concern about the fairness of the trial that led to the conviction and sentence. Further, it is no part of the Secretary of State's reasoning that the appellant is at risk of reoffending while in this country. I accept that the risk of reoffending is only one facet of the public interest underlying paragraph 320(2) and that reliance on the general rule in that paragraph does not depend on establishing a risk of reoffending or any other specific risk to the UK public interest; but the absence of any such specific risk means that there is no additional factor to which weight should be attached in support of the refusal of entry clearance.
48. I should mention that Mr Waite took us to the admissibility decision of the European Court of Human Rights in McGuinness v United Kingdom (Application no. 39511/98), which concerned the requirement for an MP to take an oath of allegiance, and the withdrawal of normal parliamentary facilities as a consequence of the applicant's refusal to take the oath. But the circumstances of that case were so different that I do not think that anything can usefully be derived from the finding that it was not open to the applicant to complain under article 10 and that his application was manifestly ill-founded.
49. Taking all the circumstances of the present case into account, I am satisfied that the refusal of the entry clearance sought by the appellant amounts to a disproportionate interference with the article 10 rights of the intervener MPs. I reach that conclusion after taking into account, and giving weight to, the Secretary of State's own assessment to contrary effect. In my judgment, the considerations relied on by the Secretary of State do not provide a sufficient justification for even the limited interference with article 10 rights that is in issue in this case.

Conclusion

50. For the reasons given, I would grant the appellant permission to apply for judicial review of the refusal of entry clearance, I would direct that the substantive claim for judicial review be retained for determination by this court, and I would proceed to allow the claim, holding that on the material before the court the refusal of entry clearance is in breach of article 10.

Lord Justice McFarlane :

51. I agree.

Lord Justice Sales :

52. I also agree.