Gw (Eea R 21: 'Fundamental Interests')

JurisdictionEngland & Wales
JudgeC M G OCKELTON,DEPUTY PRESIDENT
Judgment Date12 October 2009
Neutral Citation[2009] UKAIT 50
CourtAsylum and Immigration Tribunal
Date12 October 2009

[2009] UKAIT 50

ASYLUM AND IMMIGRATION TRIBUNAL

THE IMMIGRATION ACTS

Before:

Mr C M G Ockelton, Deputy President of the Asylum and Immigration Tribunal

Senior Immigration Judge Pinkerton

Senior Immigration Judge Grubb

Between
GW
Appellant
and
An Immigration Officer, Heathrow
Respondent
Representation

For the Appellant: Mr Arfan Khan, instructed by C T Emezie Solicitors

For the Respondent: Miss Giovannetti, instructed by the Treasury Solicitor

GW (EEA reg 21: ‘fundamental interests’) Netherlands

What are the ‘fundamental interests’ of a society within the meaning of reg 21 (a threat to which may justify the exclusion of an EEA national) is a question to be determined by reference to the legal rules governing the society in question, for it is unlikely that conduct that is subject to no prohibition can be regarded as threatening those interests.

DETERMINATION AND REASONS
1

G W (the Appellant) is a national of the Netherlands. He appeals to this tribunal against the decision of the Respondent on 12 February 2009 refusing to admit him to the United Kingdom. Although the decision was formally made by an Immigration Officer, there is no doubt that it was made with the consent of and on the instructions of the Secretary of State and for the purposes of this appeal, Miss Giovannetti, who represents the Respondent, has referred to those individuals equally.

2

Prior to the Hearing the Tribunal had the benefit of receiving skeleton arguments as follows: a skeleton argument on behalf of the Appellant running to ninety-one paragraphs on thirty-four pages; a response to that by Miss Giovannetti, on behalf of the Respondent, running to twenty-three paragraphs on seven pages; and in response to that a further skeleton argument from Mr Khan on behalf of the Appellant, running to ninety-seven paragraphs on fourteen pages. We have read all those: and in view of the copious information that they gave us, on the position of the Appellant in particular, we began the hearing by suggesting that we should hear from Miss Giovanetti first. After taking brief oral evidence we did so; and in the result we have not needed to call on Mr Khan.

3

The Appellant is a member of the Dutch Parliament. He is the leader of his party which is, we understand, the eleventh largest in that Parliament. His views, to which we refer in a moment, may be shared by all the members of his party, but this we do not know. We are concerned with the views he holds personally. He is strongly opposed to what he sees as the Islamicization of Europe. He expresses his views in a manner which any right thinking person would regard as offensive to the religion of Islam and its founder. His aim as he declares it is in particular to persuade others that the religion and culture of Islam is not one that should be tolerated or followed. He has made a film called ‘Fitna’ which interposes readings from the Koran, the holy book of Islam, with images of atrocities committed around the world, with the implication that the relevant suras of the Koran encourage or permit the acts portrayed. His activities, by showing the film and expressing his views, have caused concern and debate in many countries. We were referred in particular to a condemnation of his views and of the film made on behalf of the United Nations by the Secretary-General last year.

4

The appellant proposed to visit the United Kingdom. He was to be the guest of Baroness Cox and Lord Pearson of Rannoch, who gave oral evidence before us. The visit was to take place on 12 February this year. Lord Rannoch told us what the visit would entail. The Appellant was to attend a Committee Room at the House of Lords and to show his film, ‘Fitna’, and to be available for a question and answer session. The meeting was to be open to all members of either House of Parliament who wished to attend, and to anybody else holding a pass for the Palace of Westminster. That meeting was, we were told, to last for about an hour. The Appellant was then to go across the road to the premises which are, in essence, the House of Lords press conference room. There was to be a similar meeting on those premises. It was primarily to be intended for the press but was to be open to the public. Again the film was to be shown and the Appellant would be available to take part in a question and answer session which was to be chaired by Baroness Cox. That was the proposal.

5

On 10 February 2009, two days before those events were to take place, an official writing on behalf of the SSHD, wrote to the Appellant via the British Embassy in The Hague. The letter reads as follows:

“The purpose of this letter is to inform you that the SSHD is of the view that your presence in the UK would pose a genuine, present, and sufficiently serious threat to one of the fundamental interests of society. The SSHD is satisfied that your statements about Muslims and their beliefs, as expressed in your film ‘Fitna’ and elsewhere, would threaten community harmony, and therefore public security in the UK. You are advised that, should you travel to the UK and seek admission, an immigration officer will take into account the SSHD's view. If in accordance with Regulation 21 of the Immigration European Economic Area Regulations 2006, the immigration officer is satisfied that your exclusion is justified on grounds on public policy and/or public security, you will be refused admission to the UK under Regulation 19. You would have a right of appeal against any refusal of admission exercisable from outside the UK.”

6

Despite the contents of that letter the Appellant travelled to the UK with the intention of carrying out the programme to which we have alluded. After an interview at the airport, he was refused admission. The Notice of Refusal is the decision against which he appeals in these proceedings. The substantive part of it reads as follows:

“You have sought admission to the UK under EC law in accordance with Regulation 11 of the Immigration European Economic Area Regulations 2006, on the grounds that you are a Dutch national. However, I am satisfied that your exclusion is justified on grounds of public policy and public security for the following reasons.

As a result of your previous activities in the Netherlands you are to be prosecuted for incitement to hatred and discrimination. These are grounds similar to inciting racial and religious hatred under English law. While you have not been convicted of any criminal offence, as an Immigration Officer I am obliged to balance your right to free movement against the threat your presence in the UK could pose to public safety and public order. I understand that during your stay in the UK you intend to attend the screening of your film ‘Fitna’ that promotes the views against Muslims and their belief which form a basis for the Amsterdam appeals court's decision that you should be prosecuted in the Netherlands.

After considering the purpose of your proposed stay, and noting the high level of public attention your activities have previously attracted within the Netherlands, I have concluded that there is a considerable risk that your presence in the UK would threaten community harmony and therefore public security. In light of this I consider that your presence could foster hate and lead to inter-community violence within the UK. Therefore in accordance with Regulation 21 of the 2006 EEA Regulations, I am denying you admission under Regulation 19 of those Regulations. This decision attracts limited right of appeal from abroad and you are now liable for removal from the UK.”

7

The Appellant was duly removed, or at any rate went back to the Netherlands, and exercised his right of appeal. The challenge to the decision of 12 February is by way of appeal on the grounds that the Appellant has a right of free movement and a right of freedom of expression and of association. Our task is to decide whether in the circumstances of the present case, the Appellant's exclusion is justified and appropriate.

The Law.
8

The regulations to which the Notice of Decision makes reference are the Immigration (European Economic Area) Regulations 2006 (SI 1003/2006). Regulation 11(1) is as follows:

“An EEA National must be admitted to the UK if he produces on arrival a valid national identity card or passport issued by an EEA state.”

9

Part 4 of the Regulations is headed: “Refusal of admission and removal, etc”. Regulation 19 has as its first paragraph:

“A person is not entitled to be admitted to the UK by virtue of Regulation 11 if his exclusion is justified on grounds of public policy, public security or public health in accordance with Regulation 21.”

10

For completeness we will add para (3):

“Subject to paras 4 and 5, a person who has been admitted to, or acquired a right to reside in, the UK under these Regulations may be removed from the United Kingdom if

(a) he does not have, or ceases to have, a right to reside under these Regulations, or

(b) he would otherwise be entitled to reside in the UK under these Regulations but the Secretary of State has decided that his removal is justified on the grounds of public policy, public security or public health in accordance with Regulation 21.”

11

We need to read reg 21 almost in full. We omit paras 6 and 7.

“21(1) In this regulation a ‘relevant decision’ means an EEA decision taken on the grounds of public policy, public security or public health.

(2) A relevant decision may not be taken to serve economic ends.

(3) A relevant decision may not be taken in respect of a person with a permanent right of residence under Regulation 15 except on serious grounds of public policy or public security.

(4) A relevant decision may not be taken except on imperative grounds of public security in respect of an EEA national who

(a) has resided in the United Kingdom for a continuous period of at least ten years prior to the relevant...

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