England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		1st May 2014

Mrs Justice Lang:

1. The Claimant is a citizen of Nigeria who has applied for judicial review of the Defendant's decision, dated 19^th July 2012, to maintain her previous decision, made on 2^nd December 2008, to exclude the Claimant from the United Kingdom (UK), on the grounds that, because of his character conduct and association with fraud and other criminal activities, his presence in the UK would not be conducive to the public good.
2. Permission was granted by Hickinbottom J on 2^nd April 2013. On 6^th November 2013 Foskett J made an order that the Claimant should provide security for the Defendant's costs in the sum of £12,000.

Facts

3. The Claimant is a wealthy and successful businessman who has been involved in politics in Nigeria for a number of years. Between 1999 and 2007 he acted as a Special Assistant to former President Obasanjo. In May 2007 he was sworn in as Governor of the state of Anambra but the election was nullified in June 2007 by the Supreme Court of Nigeria, at the suit of his predecessor who successfully claimed that his term of office ran until March 2010.
4. In April 2011, he was elected Senator for the Anambra South constituency of Anambra State. He ran on the Peoples Democratic Party platform, the party of Nigerian President Goodluck Jonathan. He is a member of a number of Senate Committees and Chairman of the Senate Committee on Independent National Electoral Commission.
5. The Claimant was issued with a multiple entry visit visa for the UK on 11^th November 2004. This was due to expire on 11^th November 2009.
6. On 2^nd December 2008, the Defendant wrote to the Claimant informing him that she had decided to revoke his multiple visit visa and that she had personally directed that his exclusion from the UK was conducive to the public good. This decision was in fact taken on 26^th November 2008. The Defendant's reasons for the above decision were set out in a separate letter of the same date:

"On the basis of your character, conduct and association with fraud and other criminal activities, your presence in the UK would not be conducive to the public good and the Home Secretary has therefore decided that you should be excluded from all territories of the United Kingdom."

This letter also explained that there was no right of appeal against this decision, and that it would be reviewed in three years' time.

7. On 24^th December 2008 the Claimant attempted to enter the UK, having travelled to Luton airport in a private jet. He states that he had not received the letter informing him that he had been excluded. Entry was refused on the basis that he was excluded, and removal directions were issued providing for his return to Lagos. HM Revenue & Customs seized a large amount of cash from the Claimant (about €135,000), as they suspected that it had either been derived from crime, or that it would be used for a criminal purpose. The Claimant also had a large quantity of gold jewellery in his possession. At the time he claimed that the purpose of his visit was to attend a business meeting with a Korean oil company. In his statement, the Claimant said that that he intended to use the money to buy furniture and also to pay for hotel rooms and entertainment.
8. Although approximately €100,000 of the cash in the Claimant's possession subsequently became unaccounted for and later formed the subject of HMRC/UKBA investigations, the remaining sum was seized under the Proceeds of Crime Act 2002 and subsequently forfeited by order of the Court.
9. On 29^th September 2009, following correspondence between the parties, the Claimant's previous solicitors sent the Defendant a Pre-Action Protocol letter indicating that he intended to challenge the exclusion decision. The Defendant replied to that letter on 14^th October 2009, saying:

"In respect of your claim that the Secretary of State has failed to give adequate reasons for the decision to exclude your client, or that those reasons are flawed rendering the decision unlawful, this is denied. Your client was informed that he was being excluded for reasons relating to his character, conduct, and association with fraud and other criminal activities: it is considered that this should have been sufficient for your client to understand the reasons behind the decision. It is not in the public interest to provide further details in respect of these matters. The Secretary of State has a duty to ensure that the public safety and the economic security of the UK is maintained and that duty can be met by excluding those whose presence is not conducive to the public good."

10. In a letter dated 29^th September 2009, the Claimant's previous solicitors sent the Defendant a Pre-Action Protocol letter, in which they also made a subject access request. In response, on 24^th April 2010, the Defendant sent the solicitors a bundle of documents from her file.
11. On 10^th February 2010, following a forfeiture hearing held in relation to the money that the Claimant had attempted to bring into the UK in December 2008, Uxbridge Magistrates' Court ordered him to pay the Defendant's costs of those proceedings in an amount of £14, 995.25. The Claimant failed to pay this money, and it remains unpaid to date.
12. On 4^th May 2010 the Claimant's current representatives wrote to the Defendant requesting her to revoke the exclusion decision that had been made with respect to him. The Defendant replied to that letter on 12^th May 2010 reiterating that it was not in the public interest to provide further details as to why he had been excluded from the UK and declining to reverse that decision.
13. On 22^nd June 2010 the Claimant filed a claim for judicial review of the Defendant's decision not to revoke her exclusion decision (CO/6949/2010). Lloyd Jones J refused permission on the papers on 24^th September 2010. The Claimant's renewed oral application was refused by Mr CMG Ockleton, sitting as a Deputy High Court Judge, on 4^th July 2011. He was ordered to pay costs in the sum of £600, which remains unpaid.
14. On 14^th February 2011 the Claimant, having sought to appeal the decision of Uxbridge Magistrates' Court, was ordered by Isleworth Crown Court to pay into Court £29,000.00 to cover potential costs within seven days, failing which his appeal would be dismissed. The Claimant failed to pay this money into Court and his appeal was therefore dismissed on 14^th March 2011. The Crown Court thereafter ordered the Claimant to pay the Defendant's costs of £14, 043.41. This additional sum remains unpaid.
15. On 19^th December 2011 the Claimant's representatives wrote to the Defendant asking her to review the decision to exclude him from the UK, on the basis that he was a law-abiding citizen, who had been elected a Senator of the National Assembly. They said that he would not have qualified for election to the Nigerian Senate if this had not been the case, and referred to an extract from the Constitution of the Federal republic of Nigeria 1999 setting out at clauses 65-66 the stringent criteria that would enable an individual to qualify for election as a senator in Nigeria. He had no criminal convictions and had not been involved in criminal activities. He asserted that the allegations made on the internet against him were false and malicious.
16. On 26^th June 2012 the Claimant's representatives again wrote to the Defendant, enclosing a copy of the previous letter, and requesting a review of the case. The Defendant replied on 27^th June 2012, explaining that she had never received a copy of the letter of 19^th December 2011, but confirming her intention to review the case.
17. On 12^th July 2012, the Defendant wrote to the Claimant stating:

"… I am now able to advise you that, following a review of this case, it has been decided to maintain the Home Secretary's decision of 26 November 2008 to exclude Mr Uba from the UK. You may wish to note that the representations recently submitted by you on Mr Uba's behalf were duly considered as part of this review. The next review will take place in 3 to 5 years."

18. On 17^th July 2012 the Claimant's representatives again wrote to the Defendant, asking for the reasons upon which the decision to maintain the exclusion had been based. The Defendant replied on 19^th July 2012 , saying:

"… In response to your letter I can only reiterate previous advice which states that the Home Secretary personally excluded Mr Uba from the UK because she did not consider his presence in the UK to be conducive to the public good on the basis of his character, conduct and association with fraud and other criminal activities.

Following the recent review of Mr Uba's case the exclusion decision has been maintained for the reasons stated above. It is not possible to disclose any further details relating to this case."

19. On 4^th October 2012 the Claimant's representatives filed a Pre-Action Protocol letter. They enclosed, with the letter, a further copy of the extracts from the Nigerian Constitution previously sent to the Defendant, together with a number of articles downloaded from the internet and describing various philanthropic activities apparently engaged in by the Claimant. The Claimant then filed this claim for judicial review on 18^th October 2012.

Legal framework

20. Section 3(1)(a) of the Immigration Act 1971 provides, inter alia, that, except as otherwise provided by that Act, where a person is not a British citizen, he shall not enter the UK unless given leave to do so in accordance with the provisions of, or made under, that Act. Section 3(2) provides, inter alia, that the Secretary of State shall from time to time lay before Parliament statements of the rules, or of any changes in the rules, laid down by him as to the practice to be followed in the administration of the 1971 Act for regulating the entry into and stay in the UK of persons required by that Act to have leave to enter.
21. Paragraph 7 of the Immigration Rules (HC395) provides that a person who is neither a British citizen nor a Commonwealth citizen with the right of abode nor a person who is entitled to enter or remain in the UK by virtue of the provisions of the 2006 EEA Regulations requires leave to enter the UK.
22. Paragraph 30A(iii) of the Rules provides that an entry clearance may be revoked if the Entry Clearance Officer is satisfied that the holder's exclusion from the UK would be conducive to the public good.
23. By paragraph 320(6) of the Rules, the grounds on which entry clearance or leave to enter is to be refused include "where the Secretary of State has personally directed that the exclusion of a person from the UK is conducive to the public good".
24. By paragraph 320(19), the grounds on which entry clearance or leave to enter should normally be refused include the ground that the Immigration Officer deems the exclusion of the person from the UK to be conducive to the public good, for example, "because the person's conduct …, character, associations, or other reasons, make it undesirable to grant him leave to enter".
25. Section 82(1) of the Nationality, Immigration and Asylum Act 2002 provides that, where an immigration decision is made with respect to a person, he may appeal to the Tribunal. The kinds of decisions which are immigration decisions for the purposes of section 82(1) are listed in section 82(2). A decision on the part of the Secretary of State to exclude a person from the UK is not included within that list.
26. By section 98(1) of the 2002 Act, section 98 applies to an immigration decision of a kind referred to in section 82(2)(a) or section 82(2)(b), i.e. refusal of leave to enter the UK and refusal of entry clearance respectively. Section 98(2) provides that an appeal under section 82(1) against an immigration decision may not be brought or continued if the Secretary of State certifies that the decision is or was taken:

a) by the Secretary of State wholly or partly on the ground that the exclusion or removal from the UK of the person to whom the decision relates is conducive to the public good, or

b) in accordance with a direction of the Secretary of State which identifies the person to whom the decision relates and which is given wholly or partly on that ground.

27. Section 98(3) provides that in subsection (2)(a) and (b) a reference to the Secretary of State is a reference to the Secretary of State acting in person.
28. The Secretary of State's power to exclude a person from the UK is a broad one, with which the Court must be slow to interfere. In R (Corner House Research) v Director of Serious Fraud Officer [2008] UKHL 60, [2009] 1 AC 756 Lord Bingham said, at [31]:

"The reasons why the courts are very slow to interfere are well understood. They are, first, that the powers in question are entrusted to the officers identified, and to no one else. No other authority may exercise these powers or make the judgments on which such exercise must depend. Secondly, the courts have recognised (as it was described in the cited passage of Matalulu v DPP [2003] 4 LRC 712):

'the polycentric character of official decision-making in such matters including policy and public interest considerations which are not susceptible of judicial review because it is within neither the constitutional function nor the practical competence of the courts to assess their merits.' "

29. In R (Farrakhan) v Secretary of State for the Home Department [2002] EWCA Civ 606, Lord Phillips of Worth Matravers MR said, at [71] to [75]:

"71. Miss Carss-Frisk submitted that there were factors in the present case which made it appropriate to accord a particularly wide margin of discretion to the Secretary of State. We agree. We would identify these factors as follows. First and foremost is the fact that this case concerns an immigration decision. As we have pointed out, the European Court of Human Rights attaches a considerable weight to the right under international law of a state to control immigration into its territory. And the weight that this carries in the present case is the greater because the Secretary of State is not motivated by the wish to prevent Mr Farrakhan from expressing his views, but by concern for public order within the United Kingdom.

72. The second factor is the fact that the decision in question is the personal decision of the Secretary of State. Nor is it a decision that he has taken lightly. The history that we have set out at the beginning of this judgment demonstrates the very detailed consideration, involving widespread consultation, that the Secretary of State has given to his decision.

73. The third factor is that the Secretary of State is far better placed to reach an informed decision as to the likely consequences of admitting Mr Farrakhan to this country than is the court.

74. The fourth factor is that the Secretary of State is democratically accountable for [the decision to exclude the Respondent from the UK]. This is underlined by the fact that section 60(9) of the 1999 Act precludes any right of appeal where the Secretary of State has certified that he has personally directed the exclusion of a person on the ground that this is conducive to the public good. Mr Blake submitted that the absence of a right of appeal required a particularly rigorous scrutiny under the process of judicial review. This submission appeared to us to be tantamount to negating the effect of section 60(9). There is no doubt that the Secretary of State's decision is subject to review, but we consider that the effect of the legislative scheme is legitimately to require the court to confer a wide margin of discretion upon the minister

75. These conclusions gain support from the approach of the House of Lords to the discretion of the Secretary of State to deport a person on grounds of national security in Secretary of State for the Home Department v Rehman [2001] 3 WLR 877."

30. In Secretary of State for the Home Department v Rehman [2003] 1 AC 153, which concerned a deportation, Lord Slynn said, at 184A:

"The Secretary of State, in deciding whether it is conducive to the public good that a person should be deported, is entitled to have regard to all the information in his possession about the actual and potential activities and the connections of the person concerned. He is entitled to have regard to the precautionary and preventative principles rather than to wait until directly harmful activities have taken place, the individual in the meantime remaining in this country. In doing so he is not merely finding facts but forming an executive judgment or assessment. There must be material on which proportionately and reasonably he can conclude that there is a real possibility of activities harmful to national security but he does not have to be satisfied, nor on appeal to show, that all the material before him is proved, and his conclusion is justified, to a "high civil degree of probability". Establishing a degree of probability does not seem relevant to the reaching of a conclusion on whether there should be a deportation for the public good."

31. In R (Naik) v Secretary of State for the Home Department [2011] EWCA Civ 1546, Carnwath LJ said, at [23], that "the Secretary of State's responsibility for the protection of national security is a central constitutional role, and encompasses a duty owed to the public at large". He concluded, at [45]:

"… the modern law is not fully reflected in Farrakhan, or the other cases cited by the Judge. The position which emerges is reasonably clear. Ministers, accountable to Parliament, are responsible for national security; judges are not. However, even in that context, judges have a duty, also entrusted by Parliament, to examine Ministerial decisions or actions in accordance with the ordinary tests of rationality, legality and procedural regularity, and where Convention rights are in play, proportionality."

Grounds for judicial review

32. The Claimant's pleaded grounds were as follows:

a) the Defendant failed properly to take into account the Claimant's representations and the evidence when reviewing his case;

b) the Defendant merely "rubber-stamped" the earlier decision to exclude made in 2008; the review was inadequate and unlawful;

c) the decision letter was inadequately reasoned.

33. The Defendant's response was as follows:

a) in reality, this was another challenge to the decision made in December 2008, and so an abuse of process;

b) the decision was made in lawful exercise of the Defendant's discretion;

c) it was apparent from the evidence of Mr Menzies and Mr Bidwell that the Defendant had considered the Claimant's representations and conducted an adequate review;

d) the Defendant was not required in law to give fuller reasons than she did;

e) alternatively, even if the reasons given in the letter of 19^th July 2012 were inadequate, adequate reasons had now been given in the evidence, and so quashing the decision on this ground would serve no useful purpose.

Conclusions

34. The Defendant agreed in 2011 to conduct a review of her decision made in 2008, in accordance with the terms of the letter of 2^nd December 2008, which expressly stated that the decision would be reviewed after three years. In her letter of 12^th July 2012, the Defendant stated that "following a review of this case, it has been decided to maintain the Home Secretary's decision of 26 November 2008 to exclude Mr Uba". In those circumstances (which differ from those which pertained in the 2010 judicial review claim), I consider that the Defendant did make a further decision in 2012 which was, in principle, capable of being the subject of a legal challenge. For these reasons, I reject the Defendant's submission that the claim is a challenge to the December 2008 decision and therefore should be dismissed as an abuse of process.
35. In my judgment, the Claimant has failed to establish that the Defendant did not properly consider his representations or the evidence. In her letter of 12^th July 2012, she expressly said that "the representations recently submitted by you on Mr Uba's behalf were duly considered as part of this review". There is no proper basis upon which the court can conclude that this was an untrue statement. The evidence adduced by the Defendant in these proceedings has confirmed to my satisfaction that a proper review was conducted in which due consideration was given to the Claimant's further representations.
36. Mr George Menzies, Assistant Director in Immigration Enforcement at the Home Office, witness statement on her behalf, said as follows:

"8. In July 2008 the UK Border Agency ("UKBA") received a classified assessment from the Serious Organised Crime Agency ("SOCA") recommending that the Home Secretary exclude Mr Emmanuel Nnamdi Uba ("the Claimant") from the UK because of his involvement in organised crime. SOCA referrals may consist of highly classified material which can include covert intelligence or sensitive source material as the evidence base. Having considered this assessment, as well as the views of stakeholders and any mitigating circumstances, exclusion of the Claimant was considered to be justified by Home Office personnel and a recommendation was made to the Secretary of State to exclude him from the UK on non-conducive grounds in view of his involvement in currency smuggling, fraud and other criminal activities. This recommendation was supported by other government departments. Due to the sensitivity of the material, SOCA's classified assessment was confined to an annex of the submission and made available only to specific security cleared individuals on the copy list (as well as the Secretary of State), whilst some lower classified material, as well as open sourced evidence, were included in the main submission.

On 26 November 2008 the then Secretary of State (Right Honourable Jacqui Smith), having taken into account the views of all relevant departments, personally directed that the Claimant should be excluded from the UK."

37. Mr Menzies gave details of events after the 2008 decision. He expressly stated, in paragraph 15, that the further representations and evidence received on behalf of the Claimant were considered by the UKBA and SOCA when considering whether to recommend that the exclusion should be maintained or lifted.
38. At paragraph 16, Mr Menzies said:

" On 6^th July 2012 SOCA provided an updated assessment and grounds for recommending that the exclusion of the Claimant be maintained. This recommendation was duly considered by UKBA personnel along with the representations submitted on behalf of the Claimant and all relevant and current matters relating to this case were taken into consideration. It was determined that SOCA had provided strong and reliable grounds for maintaining the exclusion, and whilst the Claimant's representations were carefully taken into account it was concluded that these were outweighed by SOCA's assessment, particularly as they provided no substantial, significant or new grounds to enable a recommendation to be made to the Secretary of State for the exclusion to be lifted."

39. Mr Robert Bidwell, officer of SOCA, said in his witness statement that the letter of 2^nd December 2008 notifying the Claimant of his exclusion from the UK had been hand-delivered to the Claimant's home within a week or two of the date on the letter. His view was that the Claimant, an experienced international traveller, attempted to breach his exclusion by arriving on 24^th December 2008 by private jet. He was carrying substantial quantities of cash and gold jewellery. He admitted in interview at the time that he had exchanged the cash on the black market so there was no receipt or audit trail for it. It was eventually forfeited as being the proceeds of crime.
40. Mr Bidwell confirmed that SOCA had received the representations and supporting material from the Claimant's solicitors and that he had fully taken them into account when formulating his recommendation to UKBA. He said, at paragraph 10:

"Bearing in mind the seriousness of the original grounds for exclusion, I concluded that the submissions from the Claimant's representatives were not sufficiently compelling to change our view of his exclusion. The events of 24^th December 2008, including his flouting of currency regulations and his reluctance to explain the source of a significant cash sum, tended to reinforce SOCA's original submission to UKBA."

41. I agree with the submissions made by Counsel for the Defendant about the nature of the further material provided by the Claimant. It comprised evidence of the political positions he currently held, together with a copy of the Nigerian constitution, as proof that he was a person of good character. However, holding political office in Nigeria, as in many other countries, is no guarantee of an absence of corruption on the part of the office holder. On the contrary, it is in the nature of corruption that perpetrators may be in a position of authority. Nor is evidence of philanthropy necessarily inconsistent with criminal activity. Although the Defendant had to give proper regard to the Claimant's denials of criminal activity, she was entitled to make her own judgment, based upon all the evidence before her.
42. I also accept the Defendant's submission that it was not necessary for the Defendant to have to prove that the Claimant had been convicted of criminal offences or served sentences of imprisonment to justify the conclusion that he was involved in criminal activity. The Defendant was entitled to act on information received about his involvement in serious criminal activity which had not led to prosecution. I agree with Mr Menzies's statement that a decision to exclude an individual must be based on sound evidence. The Claimant rightly drew the Defendant's attention to the fact that material on the internet often has an unknown provenance and may be unreliable or false. It may be posted for malicious reasons, particularly when the target is a public figure who may have enemies. However, in my view, the Claimant was mistaken in believing that the only material available to the Defendant was that which was disclosed to him. As Mr Menzies explained, only the material which was in the public domain was disclosed to him. The other material was too sensitive to be disclosed. The material in the public domain included allegations involving fraud, corruption, money laundering, deception, arson, conspiracy, weapon offences and smuggling currency. The material which was too sensitive to be disclosed may relate to these allegations and/or to other unidentified allegations.
43. It is noteworthy that the Claimant did not make any formal application to the court asking for the sensitive material which had been withheld to be produced for inspection.
44. The letter of 19^th July 2012 gave as the reason for maintaining the previous decision to exclude that "the Home Secretary personally excluded Mr Uba from the UK because she did not consider his presence in the UK to be conducive to the public good on the basis of his character, conduct and association with fraud and other criminal activities".
45. I accept that these reasons are insufficiently detailed to meet the conventional standard, namely, to enable persons to know why they have won or lost, and to assess whether the decision may be invalid and open to challenge. The Claimant cited R v Westminster City Council, ex parte Ermakov [1996] 2 All ER 302 and Cullen v Chief Constable of the Royal Ulster Constabulary [2003] 1 WLR 1763 in support of these well-known principles. He relied upon R v Secretary of State for the Home Department, ex parte Doody [1994] 1 A.C. 53 in support of his submission that fairness required that at least the gist of the material relied upon should be disclosed, so that the Claimant could make meaningful representations.
46. In my judgment, a decision by the Defendant to exclude a foreign national person from the UK, on the grounds that his presence is not conducive to the public good, does not require the level of detailed reasons expected from public law decision-makers in other areas, such as those in the cases cited by the Claimant. In this context, it will often be justified in the public interest for the Defendant to adopt a more guarded approach.
47. In this case, the reason for the decision was provided in the letter of 19^th July 2012 – as previously, it was his character, conduct and association with fraud and other criminal activities. In my view, the reason for the decision is clear enough. The real complaint is that the Defendant did not disclose the material, at least in summary form, upon which she based her decision. I consider it was reasonable for the Defendant to withhold this information, for the reasons given by Mr Menzies in his witness statement. He said:

"Due to the classification levels of the submission it was not possible to disclose details of the reasons for exclusion to the Claimant, and neither is the Secretary of State obliged to so if it is not in the public interest. Moreover, disclosure of any sensitive SOCA material could compromise sensitive intelligence sources, offend national policy, compromise ongoing operations and be in conflict with the public interest."

48. The Defendant has fulfilled her legal obligations by disclosing material under the Data Protection Act 1998 and by providing detailed witness statements to this court in the course of this judicial review.
49. In response to the Claimant's request made to the UKBA under the Data Protection Act 1998, on 24^th April 2010, the Defendant disclosed to the Claimant four categories of documents concerning him which were being held by the UKBA. These were internal case notes and articles about him on the internet; correspondence; interview notes; visa and landing card documentation and IT records. The case notes and articles contained a number of allegations of misconduct on the part of the Claimant which were in the public domain and to which the Claimant then had the opportunity to respond.
50. The detailed witness statements from Mr Menzies and Mr Bidwell have been sufficient to satisfy me that the Defendant considers that she has "strong and reliable grounds" for maintaining the exclusion, and that there are legitimate reasons for withholding some of the evidence relied upon in reaching that conclusion.
51. I acknowledge that in other exclusion cases fuller reasons have been given, but each case turns on its own particular facts. Some cases will involve material which is too sensitive to disclose, and others will not.
52. Finally, even if the Defendant's initial reasons were insufficient (contrary to my view), I accept the Defendant's alternative submission that the Defendant has now given sufficient reasons, by virtue of the disclosure and the provision of witness statements from the decision-maker, in the circumstances of this case. If the court were to order the Defendant to provide reasons, there is nothing more that she would or could say, bearing in mind that she resists the disclosure of sensitive material, and the Claimant's counsel has confirmed that he does not ask for its disclosure. Therefore the reasons challenge has become academic.
53. For the reasons given above, the claim for judicial review is dismissed.