Geller & Anor, R (on the application of) v The Secretary of State for the Home Department [2015] EWCA Civ 45

Case No C2/2014/0221

[2015] EWCA Civ 45

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE UPPER TRIBUNAL (IMMIGRATION AND ASYLUM CHAMBER)

Foskett J and UTJ Allen

JR/2506/2013

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date Thursday 5 th February 2015

Before

LORD JUSTICE PATTEN

LORD JUSTICE TOMLINSON

LORD JUSTICE FLOYD

Between

THE QUEEN on the application ofApplicants/

PAMELA GELLERAppellants

Robert spencerAppellant

THE SECRETARY OF STATE FOR THE HOME DEPARTMENTRespondent

(Transcript of the Handed Down Judgment of

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Mr Arfan Khan for Appellants

Miss Kate Grange (instructed by The Treasury Solicitor) for Respondent

Hearing Hearing date : 20 November 2014

Judgment

Introduction

[1]This appeal concerns the question whether the Applicants, both US nationals, should be granted permission to apply for judicial review of two decisions made personally by the Home Secretary on 25 June 2013 the effect of which was to deny them entry to the UK. The Home Secretary, in the exercise of the prerogative power and also pursuant to Paragraph 320(6) of the Immigration Rules made under the authority of the Immigration Act 1971, concluded that the exclusion of these persons from the UK was conducive to the public good.

[2]It is accepted that the decision of the Home Secretary is amenable to judicial review. It is also accepted that the threshold of arguability which must be surmounted by an applicant for permission to apply for judicial review is not high.

[3]A renewed, oral, application for permission to apply for judicial review was made before the Upper Tribunal, comprising Foskett J and UTJ Allen, following refusal of permission by the Vice President, Mr Mark Ockleton, on the paper application. The Upper Tribunal refused permission to apply for judicial review and refused permission to appeal to this court. Moses LJ granted permission to appeal on the paper application. Hence this appeal. At the outset I recognise that it will be a relatively unusual case in which the full court declines to permit a judicial review to proceed in circumstances where one member of the court has concluded that the issues raised are sufficiently arguable to justify an appeal to this court on the question whether permission to apply should be granted.

[4]The facts and the context in which the Home Secretary made her decision are here critical. For convenience, I refer to her decision in the singular. Although I shall refer to the two separate decision letters which were issued in her name, the two decisions, as will appear, were based upon common considerations with only those biographical descriptions of each Applicant being different, albeit not in any significant respect.

[5]The Applicants are by their own recognition internationally recognised writers and authors. They are regular public speakers. Their views excite controversy and are regarded by some, perhaps by many, as Islamophobic.

[6]The Applicants planned to visit the UK in the aftermath of the brutal murder of Drummer Lee Rigby by two Islamist extremist terrorists on the street in Woolwich on 22 May 2013. As is well known, that shocking event gave rise to a period of increased community tensions which the local authority, community leaders and the police, working together, were concerned to reduce and to dissipate. The information upon which the Home Secretary made her decision suggested that the Applicants intended to participate in and to address a rally planned by the English Defence League, (“EDL”), in Greenwich on Saturday 29 June 2013, that being the date of the annual Armed Forces Day celebration at Woolwich Barracks, an event which would obviously assume special poignancy taking place as it would only 6 weeks after the death of Drummer Rigby. It was the advice of the Metropolitan Police to the Home Secretary that the attendance of the Applicants at the EDL event was “clearly not conducive to the public good” as their presence would be likely to augment the number of people attending in order to oppose the purpose of the rally. It was further the advice of the Metropolitan Police that should the Applicants be allowed to address the proposed rally “it would undermine community cohesion and may provoke serious violence.” The task of the police in keeping opposing groups apart would be made more difficult.

[7]It was in these circumstances that the Home Secretary acceded to representations inviting her to exclude the Applicants from the UK. Those representations were made to her on 24 June 2013 and letters were sent to the Applicants communicating her decision on 25 June 2013. Both Applicants had intended to leave the United States to travel to London on 27 June. The timescale within which the Home Secretary had to make her decision is not without relevance.

Genesis of the unacceptable behaviours policy

[8]On 24 August 2005 the then Home Secretary announced and published a list of certain types of behaviour that would form the basis for decisions to deport and exclude non-UK citizens. The process followed, both then and subsequently, is described by Cranston J in his judgment in Naik v Secretary of State for the Home Department,

[2010] EWHC 2825 (Admin)

as follows: “39. Following the London bombings on 7 July 2005 ("7/7"), the then Secretary of State for the Home Department, Rt Hon Charles Clarke MP, made a statement to Parliament on 20th July 2005 (Hansard, column 1255). He said that since 7 July, many had raised concerns about extremists who sought to come to the country to foment terrorism, or to provoke others to commit terrorist acts. He had reviewed the government's powers to exclude such people. He had powers to exclude individuals on the grounds that their presence in the United Kingdom was not conducive to the public interest. Those powers needed to be applied more widely and systematically both to people before they arrived and when they were here. In recent decades, for all Home Secretaries the criteria for exercising these powers had generally been on grounds of national security, public order or risk to the country's good relations with a third country. In going beyond those grounds, there was a need to tread very carefully in areas related to free speech. However, in the current circumstances he had decided that it was right to broaden the use of these powers to deal with those who fomented terrorism, or sought to provoke others to commit terrorist acts. To that end, Mr Clarke MP intended to draw up a list of unacceptable behaviours which fell within these powers, for example, preaching, running websites or writing articles intended to foment or provoke terrorism. The list would be indicative rather than exhaustive. There would be consultation because it was important that the government worked with communities. Where there were grounds for considering that a person had been engaged in such activities, or would do so in the United Kingdom, exclusion would be considered. 40. Mr Clarke MP told the House of Commons that he had asked his officials, together with the Foreign and Commonwealth Office and the intelligence agencies, to establish a full database of individuals around the world who had demonstrated the relevant behaviours. That database would be available to entry clearance and immigration officers and would be added to the current warnings index. Entry on the index did not necessarily mean exclusion, but in all cases it would trigger the possibility of a decision to exclude by Ministers. In addition to using that list to ensure that those conducive powers were applied more widely and systematically at the point of entry, the specified unacceptable behaviours would not be permitted for individuals who had leave to enter or remain in this country. That power arose in various categories. For those in the United Kingdom temporarily, for example, as visitors, students or workers, or their dependants, and for those with indefinite leave to remain, any breach would lead to termination of their leave or deportation; asylum seekers, as a general rule, would be detained and their claims fast tracked; and with refugees, consideration would be given to whether the behaviours described fell within one of the categories for exclusion from protection under the 1951 Refugee Convention. The power of exclusion was necessarily targeted at those outside the country. When people who are already in the United Kingdom engaged in the kind of behaviour that he had identified it may well be appropriate to deport them under statutory powers. 41. The consultation Exclusion or Deportation from the UK on Non-Conducive Grounds was launched on 5 August 2005. Following it, on 24 August 2005, the Home Secretary announced a list of behaviours which would form the basis for excluding and deporting individuals from the United Kingdom. The behaviours encompassed by the policy are as follows: "The List of Unacceptable Behaviours 3. The list of unacceptable behaviours is indicative rather than exhaustive. It covers any non-UK national whether in the UK or abroad who uses any means or medium including:• Writing, producing or distributing material;

• Public speaking including preaching,

• Running a website; or

• Using a position of responsibility such as teacher, community or youth leader to express views which: - format (sic: foment is obviously intended and appears in the published version), justify or glorify terrorist violence in furtherance of particular beliefs; - seek to provoke others to terrorist acts; - foment other serious criminal activity or seek to provoke others to serious criminal acts or; - foster hatred which might lead to inter-community violence in the UK." 42. On 28 October 2008 the then Secretary of State, Rt Hon Jacqui Smith MP, made a written statement to Parliament on the unacceptable behaviours policy. She said (Hansard, column 26 WS) that she had reviewed existing policy on the exclusion from the United Kingdom of those individuals who engaged in violence or hatred in support of their ideology. The government would create a presumption in favour of exclusion in respect of all those who had engaged in the types of behaviour set out in the Home Secretary's statement of 24 August 2005. Where an individual claimed to have repudiated their previous extremist views or actions, the burden of proof was on them to demonstrate that that was so and has been publicly communicated.”

• Writing, producing or distributing material;

• Public speaking including preaching,

• Running a website; or

The circumstances in which the Home Secretary made her decision

[9]On 24 June 2013 Commander Peter Terry of the Metropolitan Police, Gold Commander for the operations in Woolwich on the forthcoming Saturday, wrote to the Home Secretary in these terms:

“Please find enclosed representations for you to consider exercising your discretion to exclude two American Nationals from the United Kingdom on the grounds that their presence here would not be conducive to the public good. The brief circumstances are that Robert Spencer and Pamela Geller are planning to address an EDL rally in Greenwich on Saturday 29th June 2013. This date sees the annual Armed Forces Day celebration at Woolwich Barracks, an event that is especially poignant this year following the murder of Drummer Lee Rigby. Both Geller and Spencer have been forthright in their views about the Islamic community and some of their actions could be considered to be provocative. It is the position of the Metropolitan Police Service that should Geller and Spencer be allowed to address the proposed rally it would undermine community cohesion and may provoke serious violence. Our concerns are echoed by the community of Greenwich. The Leader of the Council and the Chief Executive have informed me, as Gold Commander for the operation on Saturday, that they will be making cross party and community representations to the Metropolitan Police Service on Tuesday 25th June 2013 highlighting their concerns if Geller and Spencer were to be allowed to address a rally on Saturday.”

[10]There was enclosed with that letter a document entitled “Application to the Home Office to exclude foreign nationals”. In view of its importance to the resolution of the issues in this case I must reproduce it here in full:

“Application to the Home Office to exclude foreign nationals Contents: 1. Introduction 2. Subject profiles 3. The English Defence League (EDL) 4. Relevant Legislation 5. Conclusions and basis for application 1. Introduction: This is a factual compilation of information relevant to the consideration to exclude two foreign nationals from the UK. They are: 1. Pamela Geller Oshry, date of birth 14/06/1958, a national of the USA 2. Robert Spencer, date of birth 27/02/1967, a national of the USA Background: Saturday 29th June 2013 is Armed Forces Day (www.armedforcesday.org.uk/) and is being marked by over 300 nationwide events. On this day, Tommy Robinson and Kevin Carroll have announced their intention to complete a "Walk of Honour" from Hyde Park to the site of Drummer Lee Rigby's murder in Woolwich. Their route goes through the London Boroughs of Tower Hamlets and Newham. On their website, they state they are raising money for Amelia-Mae, a young girl with neuroblastoma (http://englishdefenceleague.org/edl-news-2/1962-edl-leaders-to-complete-woolwich-walk-for-amelia-mae). Tommy Robinson and Kevin Carroll are self proclaimed leaders of the English Defence League (EDL), a profile of which is contained later within this document. Mr Robinson has stated that the subjects of this document, Pamela Geller Oshry and Robert Spencer, will attend the event and this is confirmed online. Pamela Geller and Robert Spencer are co-founders of the Freedom Defense Initiative and Stop the Islamization of America. Both openly confirm their membership of these groups which they state are opposed to spread of extreme Islam and Sharia Law. They deny being Islamophobic, but there can be little doubt that they are perceived as such by many. It is the Metropolitan Police Service's view that their visit to the United Kingdom to attend the EDL event will inflame community tensions and may result in significant and serious public disorder, hence this application. The exclusions are required immediately in anticipation of the above individuals travelling to the UK prior to the 29th June. 2. Subject Profiles: Individual subject profiles have been completed and are appended to this report. Summaries are shown below: Pamela Geller Oshry: She has no convictions in the UK or the US. She has campaigned against the construction of a "mosque" at Ground Zero (with Robert Spencer) and states that she is opposed to extreme Islam and the creeping introduction of Sharia law. She strongly supports Israel and is an ardent Zionist. She is a controversial figure after: • funding adverts to run on public transport systems in San Francisco and New York which said "In any war between the civilized man and the savage, support the civilized man. Support Israel. Defeat Jihad." This was interpreted by some as calling Muslims savages. •. displaying a picture of the Prophet Muhammad with a pigs face superimposed on it on her blog. She later defended this, stating I don't know where it is in America that you can't make jokes or make fun." Robert Spencer: He has no convictions in the UK or US. In addition to his work with Pamela Geller, he has published literature including “The Politically Incorrect Guide to Islam (and the Crusades).”

He states he does not believe that traditional Islam is "inherently terroristic" but says he can prove that "traditional Islam contains violent and supremacist elements", and that "its various schools unanimously teach warfare against and the subjugation of unbelievers." This has led many to brand him Islamophobic. 3. The English Defence League The English Defence League (EDL) formed in 2009, a few months after members of the former Al-Muhajiroun disrupted the Luton homecoming troops' parade in March 2009. Whilst initially consisting of football supporters, the EDL grew at a phenomenal rate for a 'right of centre pro-nationalist' group. The next few years saw a rise in membership and the protest related activity of the group, which in turn brought them increased media attention. Recent differences of opinion among the leadership had caused its influence to diminish, however the murder of Drummer Lee Rigby has rejuvenated them. The EDL have stated from the onset that their objectives are to challenge Islamist extremists and groups and to prevent the spread of Sharia law in the UK. They reiterate in all official statements, and on their official websites, that any individual is welcome to join them. They welcome support from anyone who stands against Islamic extremism including Muslims (a stark contrast to the policies of the British National Party). The EDL hierarchy publicly distances itself from racists. However EDL activities have attracted groups and individuals from right wing elements (from the BNP through to former Combat 18 members) and it seems these people are tolerated as long as they keep their politics to themselves. Recent London based English Defence League (EDL) and Unite Against Fascism (UAF) activity Before the murder of Drummer Lee Rigby on 22/05/2013 1st September 2012 - The EDL held a march in Walthamstow which was vigorously opposed by the UAF and local residents. There were 20 arrests for offences from possession of offensive weapons to affray. A very significant policing operation was necessary to prevent the opposing groups from engaging in disorder. 20th October 2012 - 53 members of the EDL (including Tommy Robinson and Kevin Carroll) were arrested on the M25 in various vehicles including a large number in the back of a Luton van. Also in the van were balaclavas and latex gloves. It is believed their original destination was a mosque in East London. The group claimed that they were on their way to conduct a "flash protest" and the balaclavas were to prevent repercussions from counter protestors or employers. No prosecutions ensued. 27th October 2012 - A planned EDL march in Walthamstow was prevented after the Policing Minister banned all marches in Waltham Forest and three nearby boroughs for a 30-day period citing public safety concerns. After the murder of Drummer Lee Rigby on 22nd May 2013 22nd May 2013 - A gathering of approximately 20 to 30 EDL members and 70 others attended Woolwich on the night of the murder. There was disorder outside a railway station with bottles being thrown at police lines. 27th May 2013 - An EDL demonstration outside Downing Street. This is opposed by the UAF and other anti-EDL groups. The groups threw bottles at each other resulting in 4 police officers being injured. The EDL were also implicated in throwing bottles at police in Leicester Square later that evening. The level of disorder necessitated the deployment of a large number of officers at significant cost to the MPS. 1st June 2013 - A planned British National Party march in Woolwich was reduced to a demonstration in Whitehall following the imposition of conditions under the Public Order Act by the MPS. Conditions were also imposed against the UAF who again attended in opposition to the BNP. Over 50 UAF members were arrested for refusing to abide by conditions imposed on their demonstration. 4. Relevant Legislation This has been obtained from the UKBA handbook entitled Exclusion Decisions and Exclusion Orders. Exclusion decision: This can be made against a non-European Economic Area (EEA) national. Exclusion prohibits a person entering the UK if their presence in the UK is deemed not to be conducive to the public good. The power to exclude a person from the UK is currently exercised by the Home Secretary. It is a non-statutory power and potentially very broad. The exclusion remains in place until it is revoked by the Home Secretary. Exclusion is not an immigration decision, as defined by Section 82 of the Nationality, Immigration and Asylum Act 2002, and does not have a right of appeal. Non-EEA foreign nationals who are excluded by the Home Secretary may request a judicial review of the decision. 5. Conclusions and basis for application The MPS feels that entry to the UK should be refused for both Pamela Geller Oshry and Robert Spencer as their attendance at the EDL event is clearly not conducive to the public good. It is clear that both individuals are viewed as anti-Islamic whether or not they would accept this description. This increases the risk of disorder at the event on the 27th June as it is likely to augment the number of people that attend to oppose the EDL event. Whereas members of the UAF would have attended in any case, the presence of Robert Spencer and Pamela Geller will in all likelihood widen this to Muslim groups and local residents, as well as those with a specific aversion to these individuals. Pamela Geller's outspoken support of Israel may also attract pro-Palestinian groups to attend, further complicating the policing operation on the ground and making it harder to keep opposing groups apart. This event follows a period of increased community tensions following the murder of Drummer Lee Rigby and a number of high profile hate crime attacks against mosques. All reasonable steps need to be taken to reduce such tensions and the MPS would ask that this include exclusion decisions in respect of Pamela Geller Oshry and Robert Spencer.” Contents: They are: Recent London based English Defence League (EDL) and Unite Against Fascism (UAF) activity Before the murder of Drummer Lee Rigby on 22/05/2013 After the murder of Drummer Lee Rigby on 22nd May 2013

Exclusion decision:

[11]I draw particular attention to those passages which describe the incidents of public disorder and violence which had occurred in connection with the EDL and the UAF (Unite Against Fascism) groups, both before and after the murder of Drummer Rigby. The explicit police advice to the Home Secretary was that participation in the rally by the Applicants might lead to significant and serious public disorder and provoke serious violence. The advice of the police, at least implicit and arguably also explicit, was that their own powers were not adequate to safeguard public order.

[12]I also emphasise, as did Foskett J giving the reasons of the Upper Tribunal, that this was a decision which fell to be made by the Home Secretary at a particularly sensitive time when there were real concerns about the local community in which the rally was to be held, against the background of a shocking and dreadful incident only a few weeks before.

[13]It was in these circumstances that the Home Office wrote to Ms Geller on 25 June 2013. The letter began:

“I am writing to inform you about the British government’s measures for excluding or deporting extremists under the Unacceptable Behaviour policy.”

The letter then set out the full text of the list of unacceptable behaviours as it is reproduced above in the citation from Cranston J, save only that the statement that the list is indicative and not exhaustive came at the end rather than at the beginning, and that “foment” appears rather than “format.” The letter then continued:

“The Home Secretary has considered whether, in light of this list, you should be excluded from the UK. After careful consideration on 25 June 2013 she personally directed that you should be excluded from the United Kingdom on the grounds that your presence here is not conducive to the public good. The Home Secretary has reached this decision because you have brought yourself within the scope of the list of unacceptable behaviours by making statements that may foster hatred which might lead to inter-community violence in the UK. The Home Secretary notes that you are a prolific blogger, author, political activist and commentator. You co-founded Stop Islamization of America, an organization described as an anti-Muslim hate group. You also operate a number of websites including Jihad Watch and Atlas Shrugs. You are reported to have stated the following: • “Al-Qaeda is a manifestation of devout Islam … it is Islam.” • “If the Jew dies, the Muslims will die as well: their survival depends on their constant jihad, because without it they will lose the meaning and purpose of their existence.”

The Home Secretary considers that should you be allowed to enter the UK you would continue to espouse such views. In doing so, you would be committing listed behaviours and would therefore be behaving in a way that is not conducive to the public good. You are therefore instructed not to travel to the UK as you will be refused admission on arrival. Although there is no statutory right of appeal against the Home Secretary’s decision, this decision is reviewed every 3 to 5 years. In accordance with the Data Protection Act 1995 the Home Office treats all personal information in confidence. However, such information may be disclosed to other government departments, agencies, local authorities, the police, foreign governments and other bodies for immigration purposes or to enable them to perform their functions.”

You are reported to have stated the following:

[14]The letter to Mr Spencer is in identical form, save only that the biographical part reads as follows:

“The Home Secretary notes that you are the founder of the blog Jihad Watch (a site widely criticized for being Islamophobic). You co-founded the Freedom Defense Initiative and Stop Islamization of America, both of which have been described as anti-Muslim hate groups. You are reported to have stated the following: “… it [Islam] is a religion and is a belief system that mandates warfare against unbelievers for the purpose for establishing a societal model that is absolutely incompatible with Western society because media and general government unwillingness to face the sources of Islamic terrorism these things remain largely unknown”

. You are reported to have stated the following:

The application for judicial review

[15]On 3 July 2013 the Applicants gave notice of their intention to bring judicial review proceedings.

[16]The Grounds for judicial review accompanying the Application for permission issued on 12 September 2013 run to 72 pages. In giving permission to bring this appeal Moses LJ described them as “over-blown” and observed that they needed “substantial cutting”. The Applicants did not respond to this guidance until 17 November 2014, three days before the hearing before us. On that day a more focused and helpful document headed “Grounds for Judicial Review” was produced by Mr Arfan Khan, Counsel for the Applicants, who had been co-author of the earlier document.

[17]Mr Khan was at pains to emphasise that the more recent document should be regarded as “simply an introduction” to the issues which were engaged. He did, however, accept that if the grounds more sparingly advanced had no prospect of success, then those developed more expansively were equally unlikely to prove persuasive. The new, concise, Grounds are:

“1. The policy used to refuse entry to the Appellants is unlawful, as it is used to refuse the Appellants entry into the UK, when the Appellants themselves do not intend to incite violence, but whose presence it is said may lead third parties to commit violence. 2. The policy used to refuse entry to the Appellants fails the test for legal certainty and is ultra vires and/or not prescribed by law in that: (i). The policy fails to provide for the circumstances in which the police must intervene to prevent the threat of violence from third parties as required by the common law and Convention standards. (ii). The policy fails the legal certainty test since it does not provide for the scope of the discretion and the manner of its exercise with sufficient clarity, having regard to the legitimate aim of the measure in question, to give the individual in question adequate protection against arbitrary interference. (ii). The policy cuts across the common law and statutory objectives, permitting offensive speech and/or theological views, and requiring the police to curtail threat of violence from third parties; and (iii). The policy introduces a change into immigration rule 320 (6) by introducing wording not referred to in the rule and, therefore requires, parliamentary approval through the negative resolution referred to in Alvi, which post-dates the decision in Naik, and which has not been demonstrably obtained by the Secretary of State on the evidence. 3. The decisions to refuse the Appellants entry are contrary to Articles 10 and 11 the ECHR in that they are not prescribed law, and even if they were, they are disproportionate and unnecessary, in circumstances where the exclusion is not justified on the evidence, and alternative measures were available to curtail the alleged threat of violence from third parties. 4. The decisions to refuse the Appellants entry are contrary to Article 14, taken in conjunction with Articles 10 and 11 of the ECHR, since they discriminate on the grounds of nationality.”

Discussion

[18]“Article 10 confers a right to freedom of expression and Article 11 to freedom of peaceful assembly. Neither right is absolute. The exercise of these rights may be restricted if the restriction is prescribed by law, necessary in a democratic society and directed to any one of a number of specified ends.” See per Lord Bingham in R (Laporte) v Chief Constable of Gloucestershire, [2007] 2 A.C. 105 at page 127, paragraph 35. The specific ends include the interests of national security, public safety and the prevention of disorder or crime.

[19]Lord Bingham also observed, at paragraph 36 of his speech in Laporte, that the Strasbourg Court has recognised that exercise of the right to freedom of assembly and exercise of the right to free expression are often, in practice, closely associated, and the fundamental importance of these rights has frequently been stressed. Freedom of expression was said in Steel v UK 28 EHRR 603 at paragraph 101 to constitute “an essential foundation of democratic society and one of the basic conditions for its progress and for each individual’s self-fulfilment.” Lord Bingham continued:

“In Ziliberberg v Moldova (Application no. 61821/00) (unreported) 4 May 2004, paragraph 2, the court observed at the outset that: "the right to freedom of assembly is a fundamental right in a democratic society and, like the right to freedom of expression, is one of the foundations of such a society." It is the duty of member states to take reasonable and appropriate measures to enable lawful demonstrations to proceed peacefully: Plattform "Ärzte für das Leben" v Austria (1988) 13 EHRR 204, paragraph 34; Steel v United Kingdom (1998) 28 EHRR 603, 632, paragraph 170 (Commission).”

[20]It is plain therefore that the court is here concerned with basic freedoms. However, this is not of itself a reason to permit a full application for judicial review to proceed.

[21]As Miss Kate Grange for the Secretary of State pointed out, the challenge to the decision is essentially twofold. First, there is a challenge to the lawfulness of the policy pursuant to which the Home Secretary acted. It is said to be unlawful because it was not laid before Parliament in the manner prescribed by section 3(2) of the Immigration Act 1971. The policy is also said to be too uncertain and to fail to recognise(a) that it is only where there is an imminent threat of violence that exclusion could be justified and

(b) that it is in any event the duty of the State, through the police, to curtail and to contain such violence. All of this therefore feeds into the submission that the policy cannot properly be regarded as a restriction “prescribed by law.” Second, and quite distinct, it is said that the decision to exclude was in any event disproportionate, unjustified on the evidence and fundamentally flawed in that it failed to have regard to alternative measures available to curtail the alleged threat of violence from third parties.

[22]Section 3 of the Immigration Act 1971 provides:

“3. General provisions for regulation and control. (1) Except as otherwise provided by or under this Act, where a person is not a British citizen— (a) he shall not enter the United Kingdom unless given leave to do so in accordance with the provisions of, or made under, this Act; (b) he may be given leave to enter the United Kingdom (or, when already there, leave to remain in the United Kingdom) either for a limited or for an indefinite period; … (2) The Secretary of State shall from time to time (and as soon as may be) 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 this Act for regulating the entry into and stay in the United Kingdom of persons required by this Act to have leave to enter, including any rules as to the period for which leave is to be given and the conditions to be attached in different circumstances; and section 1(4) above shall not be taken to require uniform provision to be made by the rules as regards admission of persons for a purpose or in a capacity specified in section 1(4) (and in particular, for this as well as other purposes of this Act, account may be taken of citizenship or nationality). If a statement laid before either House of Parliament under this subsection is disapproved by a resolution of that House passed within the period of forty days beginning with the date of laying (and exclusive of any period during which Parliament is dissolved or prorogued or during which both Houses are adjourned for more than four days), then the Secretary of State shall as soon as may be make such changes or further changes in the rules as appear to him to be required in the circumstances, so that the statement of those changes be laid before Parliament at latest by the end of the period of forty days beginning with the date of the resolution (but exclusive as aforesaid).” (a) he shall not enter the United Kingdom unless given leave to do so in accordance with the provisions of, or made under, this Act; (b) he may be given leave to enter the United Kingdom (or, when already there, leave to remain in the United Kingdom) either for a limited or for an indefinite period; … If a statement laid before either House of Parliament under this subsection is disapproved by a resolution of that House passed within the period of forty days beginning with the date of laying (and exclusive of any period during which Parliament is dissolved or prorogued or during which both Houses are adjourned for more than four days), then the Secretary of State shall as soon as may be make such changes or further changes in the rules as appear to him to be required in the circumstances, so that the statement of those changes be laid before Parliament at latest by the end of the period of forty days beginning with the date of the resolution (but exclusive as aforesaid).”

[23]Paragraph 320(6) of the Immigration Rules made under the Act provides:

“Refusal of entry clearance or leave to enter the United Kingdom 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 … (6) where the Secretary of State has personally directed that the exclusion of a person from the United Kingdom is conducive to the public good;”

[24]The first argument is that the unacceptable behaviours policy introduces a change into Rule 320(6) and that the Secretary of State at the time of its introduction failed to follow the prescribed procedure.

[25]I reject this argument. As the notes to editors accompanying the Press Release by which the list was published rightly point out:

“The list … does not give the Home Secretary new powers. It simply sets out some of the types of behaviour that are unacceptable and will normally be grounds on which he will exclude or deport extremists from the UK on the basis that they are not conducive to the public good. The list is not exhaustive, but sets out specific behaviours which, if a person engages in them, can lead them to be excluded.”

Moreover the list is specifically said to be indicative rather than exhaustive. It is simply a statement of Government policy, publicly expressed, on what the Secretary of State considers to be unacceptable behaviour which will normally, although not necessarily, lead to exclusion as conducive to the public good.

[26]The learning on the circumstances in which section 3(2) is engaged is to be found in the decision of the Supreme Court in R (Alvi) v Secretary of State for the Home Department,

[2012] 1 WLR 2208

. That case was concerned with changes to the Immigration Rules to replace the work permit regime and to introduce a points-based system for non-European Economic Area nationals who wished to work in the UK. The revised provisions, which were laid before Parliament, stipulated that no points would be awarded to skilled workers unless the job offered to the migrant appeared on the United Kingdom Border Agency’s list of skilled occupations and the salary paid was at or above the appropriate rate for the job listed. An Occupation Code of Practice listing the occupations which were recognised as sufficiently skilled to qualify under the relevant Tier were published on the Agency’s website but was not laid before Parliament. The Supreme Court held that section 3(2) applied to any requirement which a migrant had to satisfy as a condition of being given leave to enter or remain in the United Kingdom. Section 3(2) is of course couched in terms of the Rules, or of any changes in the Rules. Lord Dyson said, at paragraph 94:

“In my view… a rule is any requirement which a migrant must satisfy as a condition of being given leave to enter or leave to remain, as well as any provision "as to the period for which leave is to be given and the conditions to be attached in different circumstances" (there can be no doubt about the latter since it is expressly provided for in section 3(2)). I would exclude from the definition any procedural requirements which do not have to be satisfied as a condition of the grant of leave to enter or remain. But it seems to me that any requirement which, if not satisfied by the migrant, will lead to an application for leave to enter or remain being refused is a rule within the meaning of section 3(2). That is what Parliament was interested in when it enacted section 3(2). It wanted to have a say in the rules which set out the basis on which these applications were to be determined.”

Lord Hope said:

“The Act does not require those instructions or documents which give guidance of various kinds to caseworkers, of which there are very many, to be laid before Parliament. But the rules must be. So everything which is in the nature of a rule as to the practice to be followed in the administration of the Act is subject to this requirement. Resort to the technique of referring to outside documents, which the Scrutiny Committee can ask to be produced if it wishes to see them, is not in itself objectionable. But it will be objectionable if it enables the Secretary of State to avoid her statutory obligation to lay any changes in the rules before Parliament. … … it makes good sense for guidance and codes of practice which are designed to assist those who must make the system work to be kept separate from the rules themselves. What the cases have revealed however is that the balance between what ought to be in the Immigration Rules themselves and what can properly be dealt with by referring to extraneous material has not always been struck in the right place. … The problem that Mr Alvi's case reveals, however, is that the Codes contain material which is not just guidance. They contain detailed information the application of which will determine whether or not the applicant will qualify. I agree with Lord Dyson … that any requirement which, if not satisfied, will lead to an application for leave to enter or to remain being refused is a rule within the meaning of section 3(2). … I see no escape from the conclusion that the question whether or not material in an extraneous document is a rule, or a change in the rules, will have to be determined on the facts of each case.”

See at paragraphs 41, 55, 57 and 64.

[27]I have no doubt that the list of unacceptable behaviours falls squarely on the “guidance” and “code of practice” side of the line. The list does not contain particular conditions or requirements which must be satisfied or fulfilled by an applicant for entry clearance, nor qualifications which he must possess in order to obtain leave to enter. It simply gives guidance as to the manner in which the Secretary of State will exercise her existing power.

[28]I might add that the threadbare nature of the argument founded upon want of compliance with section 3(2) is thrown into sharp relief by the circumstance that the policy was in October 2008 the subject of a written statement to Parliament by the then Home Secretary, who announced both that she had reviewed the policy and that she had decided to create a presumption in favour of exclusion in respect of all those who had engaged in the types of behaviour listed. This does not appear to have excited Parliamentary disapproval. This can hardly be said to be a case in which the Secretary of State has tried to avoid her statutory obligation. We can, I think, be confident that by upholding the lawfulness of the policy we do no damage to the integrity of the legislative process.

[29]This very policy was considered by this court in Naik,

[2011] EWCA Civ 1546

. That decision preceded that of the Supreme Court in Alvi, although not that of the Court of Appeal, which was subsequently upheld, but nonetheless it is notable that a distinguished team of three leading and one junior counsel appearing for Dr Naik mounted no challenge to the lawfulness of the policy. Dr Naik’s challenge was founded on legitimate expectation having regard to earlier grants of entry clearance and more substantially on Article 10 and whether any interference with his Article 10 rights, if there was such an interference in relation to an alien not present within the jurisdiction, was justified. At paragraph 65 of his judgment Carnwath LJ observed:

“Secondly, our task is made easier by the relatively limited policy basis on which the Secretary of State has made her decision. She does not rely on some undefined, general discretion based on national security. Her decision is founded on a specific and clearly defined policy, the "unacceptable behaviours" policy, as enunciated in 2005 and refined in 2008.”

[30]Encouraged by that observation, I see no prospect of success of the argument that the policy does not provide for the scope of the discretion and the manner of its exercise with sufficient clarity. The discretion is to be found in Paragraph 320(6) of the Immigration Rules. The policy gives guidance as to the manner of its exercise, setting out in specific and clear detail the types of behaviour which the Secretary of State will regard as relevant to the exercise of her broad discretion. Nor do I consider that Mr Khan gains any assistance in this regard from the decision of the Supreme Court in Nicklinson,

[2014] 3 WLR 200

. That case, in a very different context, underscores the undoubted principle that any law which restricts a Convention right must satisfy the two requirements of accessibility and foreseeability. The level of precision depends on the instrument in question. I do not consider that this decision gives rise to any need to revisit Carnwath LJ’s clear conclusion as to the certainty of the unacceptable behaviours policy.

[31]The argument derived from an absence of threat of imminent violence seems to me to have more potential traction in the context of proportionality than in relation to the lawfulness of the policy. Laporte, on which Mr Khan placed much reliance, was a very different case, concerned with the circumstances in which the police may use their powers to prevent a breach of the peace which is not sufficiently imminent to justify arrest. As Foskett J observed in the Upper Tribunal, whilst the use of the power here interfered with the ability of the Applicants to come to the UK, it did not interfere with their general liberty, in the manner of the detention on the coach, and enforced return to London, to which the applicants in Laporte were subjected. Plainly, the power of the Secretary of State to exclude in circumstances such as these cannot be exercisable only in circumstances of an imminent threat of violence, or if it is so exercisable then the adjective “imminent” must be given a meaning consistent with the timescale within which the Secretary of State must necessarily act when seeking to exclude from the UK those whose exclusion is conducive to the public good. As Miss Grange observed, to hold otherwise would be to require the Secretary of State to take unacceptable risks with public safety. As Lord Sumption pointed out in R (on the application of Lord Carlile of Berriew QC and others) v Secretary of State for the Home Department,

[2014] UKSC 60

, at paragraph 17 of his judgment: “The question whether the visitor's presence or activities in the UK is conducive to the public good must depend on its effects… ” and it is obvious that the Secretary of State had to consider whether the presence of the Applicants might lead to inter-community violence in the UK on the occasion of their proposed visit, which was in fact by any standards imminent.

[32]In that regard I also agree with the Upper Tribunal that it is plain from the material before us that in advising the Home Secretary the police were properly mindful of their responsibilities in seeking to keep the various factions apart and, generally, to curtail or to contain violence and disorder. The gravamen of their advice was however that their powers would not be adequate to safeguard public order. I do not for my part see that as an abnegation of responsibility on their part. Rather, it seems to me a carefully judged appraisal, in the light of recent experience, and at a time of highly charged community tensions, of how circumstances might develop in a manner beyond the reasonable ability of the police to control, and to represent sensible advice directed to minimising that risk in a proportionate manner. I therefore reject as having no prospect of success the suggestion that the Home Secretary can have given no proper consideration to methods other than exclusion as a proportionate manner of dealing with the problem of public disorder which might arise consequent upon the Applicants’ presence at the rally.

[33]This brings me to the more general attack on proportionality in the context of Article 10. It was accepted before the Upper Tribunal that Article 10 is engaged notwithstanding the Applicants are aliens outside the jurisdiction, although the Secretary of State reserved the right to argue, on appeal if necessary, that Article 10 is not engaged. The point was however conceded before the Supreme Court in Lord Carlile’s case, the rationale for this common ground being “because a refusal of permission to enter a country which is substantially based on a desire to prevent a person expressing or others from receiving her views is an interference with their Article 10 rights and hers” – see per Lord Sumption at paragraph 35.

[34]I proceed therefore on the basis that Article 10 is engaged.

[35]It is plain, on high authority if that be needed, that the court is entitled, and perhaps bound, to attach special weight to the assessment of the Home Secretary of the question whether a restriction on freedom of expression is necessary in order to prevent public disorder. As Lord Neuberger put it at paragraph 68 of his judgment in Lord Carlile’s case, the court cannot “simply frank the decision, but it must give the decision appropriate weight, and that weight may be decisive.” This is not least because in matters of national security or public order the Secretary of State is likely to have advice and a perspective which is not or not readily available to the court – see per Gross LJ in Naik at paragraph 88(iii) and per Lord Sumption in Lord Carlile at paragraph 32. None of this detracts from the court’s obligation of intense scrutiny of the decision, but it does point up the respective roles of the primary decision-maker and the court in a context such as this. As Lord Sumption put it at paragraph 32 of his judgment in Lord Carlile:

“… although a recognition of the relative institutional competence of the executive and the courts in this field is a pragmatic judgment and not a constitutional limitation, it is consistent with the democratic values which are at the heart of the Convention, because it reflects an expectation that in a democracy a person charged with making assessments of this kind should be politically responsible for them. Ministers are politically responsible for the consequences of their decision. Judges are not. These considerations are particularly important in the context of decisions about national security on which, as Lord Hoffmann pointed out in Rehman, "the cost of failure can be high". It is pre-eminently an area in which the responsibility for a judgment that proves to be wrong should go hand in hand with political removability.”

The same is obviously true in the context of decisions about public order, as I think Lord Sumption implicitly recognised at paragraph 37 of his judgment in a passage to which I shall shortly refer. See also per Baroness Hale at paragraph 105. The impugned decision in Lord Carlile’s case was closer to the “political end of the spectrum” (see per Lord Bingham in A v Secretary of State for the Home Department, [2005] 2 A.C. 68 at paragraph 29) than is the present, as being concerned with national foreign policy, in particular the significant damaging aspect on UK interests in relation to Iran of a proposed visit to the UK by Mrs Rajavi. That notwithstanding, there can in my judgment be no serious argument with the proposition that the present is a context “in which the court is entitled to attach special weight to the judgments and assessments of a primary decision-maker with special institutional competence” – see per Lord Sumption in Lord Carlile’s case at paragraph 34. The institutional competence of the Home Secretary derives of course from the circumstance that by Paragraph 320(6) of the Immigration Rules the relevant power to exclude is given to the Secretary of State personally.

[36]At paragraph 37 of his judgment in Lord Carlile’s case Lord Sumption also observed that the Strasbourg Court “has always recognised the potential for considerations of national security or public order to justify proportionate restrictions on political speech or public debate, as it did in its observations in Sürekv Turkey

(1999) 7 BHRC 339

at paragraphs 60-61. If a person's presence or conduct in the United Kingdom threaten to provoke violence within the United Kingdom … there could hardly be any argument about this.”

[37]Against that background, I see no prospect of success of the attack on the proportionality of the Home Secretary’s decision. This was a public order case where the police had advised that significant public disorder and serious violence might ensue from the proposed visit. The concerns of the police were shared by local community leaders. The proposed visit was to join an EDL rally in Woolwich at a time of great inter-community tension and sensitivity, in the relatively immediate aftermath of an incident of a particularly shocking nature, unprecedented on a British street, at any rate in recent history. The police had particularised associated incidents of violence which had occurred notwithstanding significant police operations. Conditions had been imposed upon another demonstration. The police had been unable to prevent violence on the previous occasions and feared that their task on this occasion would be made the more difficult by the proposed presence of the Applicants. Their advice was, as I have already pointed out, that their own powers were inadequate to safeguard public order. I regard it as in the highest degree unlikely that the outcome of a judicial review would here be that the court would strike down as a disproportionate interference with Article 10 rights the decision of the Home Secretary made in these circumstances. The court would attach special weight to her judgment, for which she was politically accountable. If that weight is not in this case decisive, in my judgment nothing of any substance has been proffered which would lead to the conclusion that the democratically accountable decision-maker here made a flawed assessment of what was necessary in the interests of public safety and the prevention of disorder. I would reiterate that the Home Secretary had to make her decision under pressure of time, although by so observing I do not suggest that her decision would have been different had she had more time to ponder it. It does however offer an additional reason for the Court to hesitate long before substituting its own assessment of what was necessary in the interests of public safety, particularly where the circumstances were so highly charged as they were here.

[38]The decision of the Home Secretary can certainly not be castigated as irrational and Mr Khan did not attempt to do so. As Lord Sumption said at paragraph 32 of his judgment in Lord Carlile’s case:- “Secondly, rationality is a minimum condition of proportionality, but is not the whole test. Nonetheless, there are cases where the rationality of a decision is the only criterion which is capable of judicial assessment. This is particularly likely to be true of predictive and other judgmental assessments, especially those of a political nature. Such cases often involve a judgment or prediction of a kind whose rationality can be assessed but whose correctness cannot in the nature of things be tested empirically. Thirdly, where the justification for a decision depends upon a judgment about the future impact of alternative courses of action, there is not necessarily a single “right” answer. There may be a range of judgments which could be made with equal propriety, in which case the law is satisfied if the judgment under review lies within that range. A case like the present one is perhaps the archetypal example.” This decision was, as I have already pointed out, further removed from the political end of the spectrum than that with which Lord Carlile’s case was concerned. Nonetheless, it is in my judgment quite impossible to say that the Home Secretary’s decision lay outside the permissible range.

[39]I note that in their witness statements of 9 June 2013 the Applicants both say that they had no plans to make any public address during their proposed visit to Britain. Mr Khan did not suggest that this should have an impact on our decision, and in my judgment he was right not to do so. The gravamen of the advice received by the Home Secretary was that their presence alone, confirmed online in advance as it had been, would inflame community tensions and might result in significant and serious public disorder. In any event the advice received by the Home Secretary upon which she was required to act was that the Applicants intended to address the rally, and it was the concern of the Metropolitan Police and of local community leaders that they should not be allowed to do so. Of course, the fact that the Applicants may have had no plans to make any public address during their visit does not mean that they would not in the event have done so. Both speak in their witness statements of their many fans in the UK whom they had intended to meet at the memorial site at which they planned to lay a wreath. [In fact the relevant sentence in paragraph 21 of Ms Geller’s witness statement omits the words “to meet” but it is plain that they are intended to be there– the sentence is incomplete without them and it plainly follows the same template as Mr Spencer’s statement.] It is not difficult to imagine circumstances in which the Applicants might have been moved or persuaded to address the rally. No doubt events such as these can develop in unexpected ways.

[40]Reliance upon Article 11 can add nothing in this context. It may be unavailable having regard to the territorial principle under Article 1, but it is unnecessary to decide the point here. Any interference that there may have been with either the Applicants’ or anyone else’s rights of peaceful assembly would equally be justified for the reasons set out in the context of Article 10. As Lord Bingham observed in Laporte, exercise of the right to freedom of assembly and exercise of the right to free expression are often, in practice, closely associated, so it is no surprise that similar circumstances may render necessary some interference with both.

[41]Reliance upon Article 14 is parasitic upon Articles 10 and 11 and again adds nothing to the debate. There is in any event quite simply no basis upon which it can be asserted that no action would have been taken against UK or EU nationals of a similar profile who wished to attend or address the rally. I have already drawn attention to conditions which had been imposed upon an earlier demonstration.

[42]In my judgment therefore the proposed judicial review has no prospect of success. The Applicants have failed to demonstrate an arguable case which merits full investigation and, despite the fact that basic freedoms are engaged, there is no compelling reason to permit the matter to go forward to a full hearing.

[43]When giving permission to appeal to this court Moses LJ observed:

“There are important issues to be determined as to the lawfulness of a policy, which arguably permits the SOS to refuse entry to those whose presence may incite violence but who themselves, arguably, may not intend to do so.”

With the benefit of full argument, the citation of authority and the opportunity for more prolonged reflection which an oral hearing presents it can, with respect, readily be seen that the lawfulness of the policy cannot depend upon whether it treats differently those who do and those do not intend to incite violence. “When the question arises whether a person’s presence or activities in the United Kingdom is conducive to the public good, it is self-evident that its potential consequences are a relevant consideration”. See per Lord Sumption at paragraph 15 of his judgment in Lord Carlile’s case. As Lord Sumption also pointed out at paragraph 17 of his judgment, in the passage cited at paragraph 31 above, the question whether the visitor’s presence or activities in the UK is conducive to the public good must depend on its effects. That is no doubt why the relevant part of the list of unacceptable behaviours speaks not of seeking to provoke violence but of expressing views which foster hatred which might lead to inter-community violence in the UK.

[44]For all these reasons I would dismiss the appeal and uphold the decision of the Upper Tribunal to refuse permission to apply for judicial review.

[45]I agree.

[46]I also agree.

Cited in 1 later judgment

KM (Algeria) v the Secretary of State for the Home Department 2017