QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| EMMANUEL NNAMDI UBA
|- and –
|SECRETARY OF STATE FOR THE HOME DEPARTMENT
Lisa Busch (instructed by The Treasury Solicitor) for the Defendant
Hearing dates: 8th April 2014
Crown Copyright ©
Mrs Justice Lang:
"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.
"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."
"… 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."
"… 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."
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.
"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  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.' "
"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  3 WLR 877."
"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."
"… 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
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.
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 19th 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.
"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."
" On 6th 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."
"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 24th 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."
"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."