Pamela Geller and Another v The Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lord Justice Tomlinson,Lord Justice Floyd,Lord Justice Patten |
| Judgment Date | 05 February 2015 |
| Neutral Citation | [2015] EWCA Civ 45 |
| Court | Court of Appeal (Civil Division) |
| Date | 05 February 2015 |
| Docket Number | 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
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Patten
Lord Justice Tomlinson
and
Lord Justice Floyd
Case No: C2/2014/0221
The Queen on the application of
Mr Arfan Khan for the Appellants
Miss Kate Grange (instructed by The Treasury Solicitor) for the Respondent
Hearing date: 20 November 2014
Introduction
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.
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.
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.
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.
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.
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.
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
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 20 th 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...
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