Sun Myung Moon (Human rights, entry clearance, proportionality) USA  UKIAT 00112
IMMIGRATION APPEAL TRIBUNAL
Date of hearing: 14 March 2005
Date Determination notified: 30 June 2005
Mr D K Allen (Vice President)
|REVEREND SUN MYUNG MOON||APPELLANT|
|Entry Clearance Officer, Seoul||RESPONDENT|
DETERMINATION AND REASONS
The Legal Framework
"The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section 1 of this Convention".
"1 Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance.
2 Freedom to manifest one's religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others".
"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 a 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 preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary."
"1 Everyone has the right to freedom of peaceful assembly and of freedom of association with others, including the right to form and to join trade unions for the protection of his interests.
2 No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others. This article shall not prevent the imposition of lawful restrictions on the exercise of these rights by members of the armed forces, or the police or other administration of the State."
"The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status".
(1) That the Adjudicator erred in law in holding that the Appellant could not rely on any Article of the ECHR other than Article 8 as a basis for saying that the refusal of entry clearance breached his Convention rights; he could rely on Articles 9, 10 and 11 as the binding decision in R (Farrakhan) v SSHD  QB 1391 made clear and as was correct even if Farrakhan were not binding to that effect;
(2) On the merits, there was a breach of Convention rights and the Adjudicator was wrong not to find such a breach; even if the IAT were against the Appellant on the first ground, it was asked nonetheless to reach a view on the latter.
The effect of the decision in Farrakhan
"32 Mr Pannick, who appeared for the Secretary of State before Turner J, had conceded that the facts of the case engaged article 10 of the Convention. We gave advance warming to counsel that we wished to hear submissions as to why this was so. This led Miss Carss-Frisk, who appeared for the Secretary of State before us, to submit that article 10 was not in fact engaged. Mr Farrakhan had been refused entry because his presence in this country was not desirable. In those circumstances article 10 gave him no right to demand entry in order to exercise his freedom of speech within this country.
33 Before the hearing of this appeal we had entertained doubts as to whether article 10 was engaged where the authorities of a state refused entry to an alien, even if their sole reason for dong so was that they did not wish him to exercise a freedom to express his opinions within their territory. Article 10 requires the authorities of a state to permit those within its boundaries freely to express their views, even if these are deeply offensive to the majority of the community. It did not seem to us to follow that those authorities should be obliged to allow into the state a person bent on giving its citizens such offence.
34 It is a remarkable fact that almost all the articles of the Convention which permit, for specified purposes, restrictions on the freedoms that they guarantee do not include in those purposes the exercise of control of immigration. This strongly suggests to us that those who negotiated the Convention only envisaged that its obligations would apply to the treatment of individuals who were within the territory of the member state concerned. This impression is enhanced by the fact that, under article 5(1)(f), an exception to the right to liberty is "the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country". The Convention is, however, a living instrument and, in accordance with the requirement of section 2 of the Human Rights Act 1998, we must have regard to the Strasbourg jurisprudence when considering whether article 10 imposes obligations in relation to an alien who is seeking admission to a member state. In this context we should record that, for the purposes of this case, the Secretary of State was prepared to accept that the fact that an individual was neither a citizen of a member state nor within the territory of a member state did not, of itself, preclude the application of the Convention. We have proceeded on the basis of that concession without examining whether or not it is correctly made."
"35 A similar issue to that with which we are concerned arose in relation to article 8 of the Convention in Abdulaziz, Cabales and Balkandali v United Kingdom (1985) 7 EHRR 471. The applicants were women settled in the United Kingdom who complained that their rights to respect for family life were infringed because their husbands were refused permission to enter in order to join them. The Government argued that article 8 did not apply to immigration control. Both the European Commission of Human Rights and the European Court of Human Rights rejected this submission, at pp 494-495, para 59, holding that immigration controls had to be exercised consistently with Convention obligations and the exclusion of a person from a state where members of his family were living might raise an issue under article 8.
36 The court observed in the next paragraph that the applicants were not the husbands but the wives, who were complaining not of being refused leave to enter, but as persons lawfully settled in the country of being deprived of the society of their spouses there. However, the court observed, at p 497, para 67:
'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.'"
"38 It is apparent, however, that an immigration decision can bring article 8 into play. Furthermore, we have no doubt that if a state were to refuse entry with the motive of preventing the enjoyment of family life because, for instance, of a policy of opposing the intermarriage of its citizens with aliens the court would hold that article 8 was infringed.
Can the Appellant assert any ECHR rights?
"35. The starting point, in our view, is the judgment of the Court of Appeal in R (Ullah) v A Special Adjudicator [2002[ EWCA Civ 1856,  INLR 74. This pointed out that Article 1 ECHR imposed the same limitation on section 6 of the 1998 Act that it did on the operation of the Convention itself. The question in that case, as in this, is as to the limit which the words "within the jurisdiction" place on the operation of the ECHR and section 6.
36. Second, we accept that there are circumstances in which decisions and actions of diplomats, consular officers and Entry Clearance Officers can be acts of the Parties "within the jurisdiction". This is borne out by Abbasi v Secretary of State for Foreign and Commonwealth Affairs  EWCA Civ 1598 at paragraphs 74-76. It is acknowledged in Bankovic, but that case emphasised the restrictive territorial basis of the ECHR.
37. However, third, we do not accept that this means that the activities of diplomatic and consular agents always constitute the exercise of powers within the jurisdiction for the purposes of ECHR Article 1. Such an approach would extend to non-nationals with no right of entry, a series of rights upon which to base applications for entry clearance simply by virtue of the fact that an Entry Clearance Officer had to consider them and that a right of appeal lay against a refusal. It would create a right of entry based on Article 3, which would include persecution for a non-Geneva Convention reason; it could encompass Article 8 where there was no family in the United Kingdom, on the basis that family life could not be enjoyed in the country of origin because of its domestic laws on divorce or marriage or adoption.
38. This would be a remarkable extension of the scope of the ECHR, particularly as it seems that the Convention was unlikely initially to have been intended to affect the right of a State to control the entry and residence of non-nationals. It has only come to do so in stages and to an uncertain degree as Ullah shows. As Lord Phillips MR pointed out in Ullah, at paragraph 24, the Strasbourg Court has repeatedly emphasised that Contracting States have the right to control the entry, residence and expulsion of aliens, subject to their Convention obligations. It is the extent of those which is far from clear, as Ullah illustrates. But it would take clear authority to show that the mere fact of an application for entry clearance and a subsequent appeal required the Parties to secure all the Convention rights to those who applied and to permit their entry for that purpose. It would stand in marked contrast to the position under the Geneva Convention where would-be refugees who are still in their country of nationality cannot claim the benefit of the Geneva Convention and have no right in international law to receive asylum or to access a country for the purpose of making a claim; European Roma Rights Centre v Immigration Officer at Prague Airport and SSHD  EWCA Civ 666,  INLR 374.
39. Fourth, we do not accept the submission that the obligation on the Entry Clearance Officer under paragraph 2 of the Immigration Rules to carry out his duties, in relation to those seeking to enter the United Kingdom, in compliance with the Human Rights Act, together with the right of appeal against the acts of public authorities, including Entry Clearance Officers, on the ground that a decision in relation to a person's "entitlement to enter or remain in the United Kingdom" was in breach of his human rights, shows that the rights which they might have under that Convention or Act are as extensive as the simple submission that the decision of the Entry Clearance Officer brings the appellant within the jurisdiction would suggest.
40. These are provisions which provide a jurisdiction in relation to human rights without dealing with what rights, if any, are to be secured to those seeking entry as non-nationals and doing so outside the scope of any Rules or policy-based discretion. The duty and jurisdiction exists in relation to whatever rights they may have in the light of their absence from the territory of the United Kingdom and the nature of what they seek. For the reasons which we have given, those rights cannot sensibly be regarded as encompassing all the Convention rights which are available to those within the territory. The same applies in relation to section 6 of the Human Rights Act: it does not help in determining what those rights may be, in this type of case. It can be said that those provisions evidence a Parliamentary assumption that those seeking entry would have some rights which would engage the ECHR, but unless the improbable assumption was made that they enjoyed all the Convention rights, those provisions evidence only a lesser and more uncertain assumption as to those rights, an assumption which may or may not be right. It would be very surprising if, by the language chosen, Parliament had intended to confer on any who might make an application for entry clearance, a right to enter to avoid treatment which breached Article 3, where no such right exists under the Geneva Convention."
"42. It seems to us that the answer to the existence of Article 8 rights for those outside the United Kingdom is to be found in the way in which the jurisprudence of the ECtHR has developed over time in relation to various areas of human experience, here the entry of non-nationals to a country. It is not always possible to trace a clear line of reasoning from Article 1 through the various decisions which that Court has reached so as deduce the principles which apply. The decisions are not always consistent nor do they deal with some of the problems which might be thought to stand in the way of the result reached. Ullah illustrates the problems of some of the reasoning in Soering v United Kingdom  11 HRR 439, and then with the basis upon which Chahal v United Kingdom  23 EHRR 413 was said to be consistent with it. Similar problems arise in respect of the ECtHR approach to entry cases. But, rather than hunting for a clear line of reasoning or principle which deals with the effect of Article 1, a line which seems unlikely to exist, the better solution is the more pragmatic one of looking to see what has been decided by that Court and domestically in relation to this particular area.
43. The issue was discussed in Ullah in paragraphs 41-47 as part of the more general discussion of Article 8. In particular, the Court was of the belief which we regard as well-founded, that Article 8 has been invoked, but only successfully in an immigration case, including refusal of entry, where that "has impacted on the enjoyment of family life of those already established within the jurisdiction". The Court referred to its review of the cases in Mahmood. It noted that the basis of the ECtHR decision in Abdulaziz, Cabales and Balkandali v United Kingdom  7 EHRR 471 was that the applicants were established within the jurisdiction and complained that they were being deprived of the company of their husbands who were not within the jurisdiction; the right of the State to control entry acted as a free-standing restriction on Article 8 rather than being a legitimate aim within Article 8(2). Later ECtHR cases, such as Bensaid v United Kingdom  33 EHRR 10,  INLR 325, treat immigration control as falling within that qualification. It appears to have been assumed or decided in both Kugathas and Ekinci, that the effective trigger for the existence of Article 8 rights, enforceable against the United Kingdom by non-nationals who are outside it, is the existence of family life with those who are established in the United Kingdom.
44. We have already referred to Sen v Netherlands and Ahmut v Netherlands, both of which are consistent with what the Court of Appeal said in Ullah about the need for the family relationship, of those relying on Article 8 as a basis for entry, to be with someone who was established in the United Kingdom in order for them to have Article 8 rights in respect of family life which are enforceable against the State with which they are seeking entry.
45. Accordingly, we consider, on the basis of ECtHR jurisprudence and Ullah, that the existence of family life with someone who is established in the United Kingdom provides the basis for the existence of Article 8 rights, enforceable against the United Kingdom and is the basis for the examination of whether that life is interfered with or shown a lack of respect. This may reflect a developing ECtHR jurisprudence from the position in Abdulaziz. Such an approach would reflect what the Court of Appeal seems consistently to regard as the position. (We have some reservations about the basis upon which Ms Hanrahan conceded the point because the short comment in Mahmood may have been overtaken by the greater consideration of the issue of jurisdiction in Ullah.) It does, however, represent an ad hoc extension of the Convention, but it is not as wide as that which would arise from full acceptance of the appellant's submissions. But it also makes some sense of the jurisdictional provisions in the 1998 Act, with the Parliamentary assumption seen as having some basis."
If ECHR rights were engaged, did the refusal of entry clearance breach them?
"I find that the Secretary of State, over a period of time, moved from the public order reason, as set out in the "minded letter" of 12 April 2001 (book 1, page 35) where he clearly stated that the basis of the presence in the country of the Reverend Moon was not conducive to the public good for reasons of public order, to public interest. I find that the appellant was fully aware of the substance of the reasons for refusing him entry and the public order ground was a label, not the substance of the decision. It was made clear to the appellant that the Secretary of State had broader concerns as set out in the letter of 12 December 2001 (book 1, page 63), for example."
"I find that when the Secretary of State considers whether to exclude a person on grounds of public good the exercise is not one of deciding on the balance of probabilities whether or not someone will act contrary to the public good, but rather one of risk assessment. I find that the Secretary of State should take into account the experiences of people who have been directly involved with the Unification Church together with the views of their families. I find it was reasonable for the Secretary of State to prefer those concerns outlined by FAIR and CIC and to a very limited extent supported by Professor Barker when the Secretary of State reached his decision."
"The reality in this case is that the Reverend Moon is being denied the opportunity of coming to the United Kingdom, but not to express his views and his religion. There is no restriction placed on the Unification Church in the United Kingdom or of him communicating with anybody in the United Kingdom. Freedom of expression extends to receiving as well as imparting views. The Reverend Moon will not be able to meet his followers in the United Kingdom face to face. There is no prohibition on his followers in the United Kingdom to go to the United States of America and meet him there personally. However, with the modern technology of live video-linking he will be able to communicate effectively with his followers in the United Kingdom."
"The Home Secretary decided to exclude Revd Moon primarily because of the methods used by the Unification Church to recruit new members and the adverse impact that recruitment has on members and their families. As founder and Head of the Unification Church, the Reverend Moon must take responsibility for these methods. The Family Action Information and Resource (FAIR) states that people are subjected to intensive persuasion and that after one week it becomes very difficult to leave the organisation. FAIR also reports that members are discouraged from contacting their families. The Cult Information Centre has received numerous complaints from individuals and family members about the methods used by the Unification Church, and INFORM (Inform Network Focus on Religious Movements) states that the Unification Church has caused considerable suffering to British Citizens in the past.
The Secretary of State considers that the Reverend Moon and the Unification Church are synonymous, and that the Reverend Moon directs the Unification Church as he would private assets. He appears to use Church members as unpaid, or very poorly paid, workers, and uses members' assets, donated to the Church, as a source of Church income. This appears to have happened to a considerable degree in The Unification Church's current projects in Brazil, for example, where numbers of Unification Church members, who are paid very little, have been involved in setting up large Church estates. The Secretary of State is concerned that a visit by the Reverend Moon to the UK could result in the recruitment of further British Citizens to the Unification Church, who would then be exploited in this manner.
The Secretary of State is aware that the current membership of the Unification Church in the United Kingdom is small, and that some of the methods of recruitment which gave rise to concern are no longer used. He is aware, for example, that the organisation in the United Kingdom no longer discourages members from contact with their families. However, he also noted that a visit by Revd Moon could re-vitalise the organisation in the United Kingdom and prompt a return to previous methods of recruitment and retention. The Secretary of State believes that the exclusion of the Reverend Moon is necessary in the public interest not only because of the possibility that his presence here could re-vitalise the Church, but because of his own character and conduct as head of the Unification Church."
"Having taken account of all of these materials the Secretary of State formed the impression that the presence of the Reverend Moon in the United Kingdom would lead to a real risk that the Unification Church could be re-vitalised as a result and could involve the use of undesirable methods of recruitment and retention. The Secretary of State believed and believes that the was entitled to approach this risk on a precautionary basis."
"It is established practice that, in certain circumstances, the fact that an individual's presence in the United Kingdom would cause offence to the public may provide a basis for a decision to exclude. The starting point in such cases is whether the views expressed by an individual are sufficiently offensive to groups resident in the United Kingdom. If exclusion is to be justified there should also normally be an accompanying threat to public order or reason to suspect that a criminal offence may be committed. This would include the possibility of offences being committed under the Public Order Act 1986.
There are many people and organisations, some of whom have already made representations to the Secretary of State, who would be vehemently opposed to the Reverend Moon entering the United Kingdom. This has led the Secretary of State to believe that there could be considerable disruption, public protest and possibly violent affray should the Reverend Moon appear in public or congregate with his followers within the United Kingdom."
"As previously stated the Secretary of State is reviewing whether the Reverend Moon's presence in the United Kingdom would be conducive to the public good because of the risk of public disorder. In particular we are concerned about families who believe that the Reverend Moon is responsible for the loss of their children. It is not our contention that any individual or group has made a specific threat to cause a public disorder or commit a criminal offence should your client visit the UK. It is accepted that the expression of an offensive view does not in itself constitute a criminal offence. The Home Office accepts that the right to freedom of expression includes rights to hold minority views and opinions without interference by public authority. However the exercise of the freedom of expression carries duties and responsibilities and may be subject to restrictions necessary in a democratic society in the interests of public safety, for the prevention of disorder and for the protection of the rights of others."
"Professor Barker in her letter dated 20 March 2002 (book 1, pages 72-74) replied to the respondent's letter that:-
a) almost all scholars throughout the world would consider that there is no evidence to suggest that members of the Unification Church have been brainwashed. The Church puts pressure on people to join but no more so than any Protestant Evangelical churches do. Individuals who attended workshops in the late 1970s, when accusations of brainwashing were at their height, were capable of saying that they did not want to become members of the Church and those who did join showed no signs of being particularly suggestible or weak. Studies have shown that there is a high turnover among those who have joined the Unification Church, indicating that if the movement were employing brainwashing techniques, they were not very efficient.
b) there was a period when the Church encouraged members not to contact their families. However, in Britain there has been for the past twenty years a general policy that members should contact their parents. Most members that Professor Barker knows have contact with their families and this has become even more the case since the second generation came along. [The respondent has now accepted that there is contact between followers and their families (book 1, page 88).]
c) the Reverend Moon has personally benefited financially from members of the Unification Church. He appears, she says, to live in considerable luxury and to give the members of his family and others costly gifts and large sums of money.
d) there has always been a high turnover within the Unification Church and members not only can but do leave if they choose to. It has become considerably easier to leave over the last ten to fifteen years. Members no longer live in communities, but with their own families. There are few large centres left. Many members are very much on the borderline and slip between being a member and being a non-member almost without realising that they have done so.
Professor Barker was asked to comment by the respondent as to monies which have been given by individuals to the Unification Church. In a letter of 15 July 2002 (page 82), she responded that all religions benefit financially from their members and she has not carried out a study of dates, names and amounts. In the 1970s and 80s the real source of income would have been the members' cheap labour. However only a few now work full-time for the movement and they earn wages which although not high are sufficient to keep them alive in their own homes.
Professor Barker in her letter of 27 July 2001 (book 1, p.46) concluded that:
a) it is hard to believe that a visit by Reverend Moon could do much more than "lighten the hearts (and no doubt the pockets)" of those loyal followers. She notes in the last paragraphs of her letter that nothing in what she has said means that she would want Reverend Moon to be granted anything like a long-term stay,
b) she would not consider a short visit by Reverend Moon to be a threat to public order based on what knowledge she has acquired of the Unification Church over the years. Those who are not followers tend to find the Reverend Moon's public speeches incredibly dull and boring.
c) Reverend Moon and his movement have caused considerable suffering to several British citizens over the past 30 years or so.
d) Reverend Moon's financial dealings have not always been entirely transparent and he has spent some time in a US jail for tax evasion in the 1980s.
e) Reverend Moon's political involvement was questioned by the Fraser Committee in 1978 when "the conclusion was rather like that of a Scottish "not proven", ie we are damn sure you are guilty but can't make it stick".
f) Reverend Moon's moral behaviour does not seem to coincide with his teachings which tend to have a "do as I say not what I do" air about them.
g) Reverend Moon's followers have worked for minimal or no wages, sometimes being neglected in times of sickness, with no pension or insurance for their old age.
h) These are not reasons to restrict entry to a religious leader to visit his followers. At most they might be used to provide the basis of arguments that the Reverend Moon's presence is not conducive to the public good but "not I think for reasons of public order.""
"The true position in our judgment is that the HRA and s.65(1) require the adjudicator to allow an appeal against removal or deportation brought on Article 8 grounds if, but only if, he concludes that the case is so exceptional on its particular facts that the imperative of proportionality demands an outcome in the appellant's favour notwithstanding that he cannot succeed under the Rules.
In such as case the adjudicator is not ignoring or overriding the Rules. On the contrary it is a signal feature of his task that he is bound to respect the balance between public interest and private right struck by the Rules with Parliament's approval. That is why he is only entitled on Article 8 grounds to favour an appellant outside the Rules where the case is truly exceptional; This, not Wednesbury or any revision of Wednesbury, represents the real restriction which the law imposes on the scope of judgment allowed to the adjudicator. It is not a question of his deferring to the Secretary of State's judgment of proportionality in the individual case. The adjudicator's decision of the question whether the case is truly exceptional is entirely his own. He does defer to the Rules; for this approach recognises that the balance struck by the Rules will generally dispose of proportionality issues arising under Article 8; but they are not exhaustive of all cases. There will be a residue of truly exceptional instances. In our respectful view such an approach is also reflected in Lord Bingham's words in Razgar??, which we have already cited:
"Decisions taken pursuant to the lawful operation of immigration control will be proportionate in all save a small minority of exceptional cases, identifiable only on a case by case basis.""
"32. Where a Rule or extra-statutory provision covers the sort of circumstance upon which an individual relies eg entry for marriage, study, medical treatment or delayed decision-making, but the individual falls outside the specific requirements or limits of the otherwise applicable Rules or policy, that is a very clear indication that removal is proportionate. It is not for the judicial decision-maker, except in the clear and truly exceptional case to set aside the limitations set by the executive, accountable to Parliament, and, in the case of the Immigration Rules, approved by Parliament.
33. Where Rules or extra-statutory provisions do not make provision at all for circumstances which an individual may rely on for the purposes of overcoming the qualification to an ECHR right which is provided by the legitimate interests of immigration control, his case cannot rationally be considered more favourably than one whose circumstances are covered in principle by some provision of the Rules or of an extra-statutory policy but whose circumstances do not meet the detailed requirements of the Rules or policy.
34. The starting point for the consideration of proportionality is the Rules and then the effect of extra-statutory policies. It will be necessary in each case where an exception is made in respect of an individual who has no basis to enter or remain in the United Kingdom to state clearly why those approved and qualified provisions in the Rules or policies should not be regarded as the conclusive negative answer to that claim."
MR JUSTICE OUSELEY