R (Farrakhan) v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lord Phillips MR |
| Judgment Date | 30 April 2002 |
| Neutral Citation | [2002] EWCA Civ 606 |
| Docket Number | Case No: C/2001/2808 |
| Court | Court of Appeal (Civil Division) |
| Date | 30 April 2002 |
[2002] EWCA Civ 606
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM QUEEN'S BENCH DIVISION
The Hon. Mr. Justice Turner
Lord Phillips Mr
Lord Justice Potter and
Lady Justice Arden
Case No: C/2001/2808
Monica Carss-Frisk, QC and Steven Kovats (instructed by The Treasury Solicitor for the Appellant)
Nicholas Blake, QC, Matthew Ryder and Raza Husain (instructed by Christian Fisher for the Respondent)
This is the judgment of the Court
Introduction
Louis Farrakhan is a United States citizen who is based in Chicago. He is an African-American. He is the spiritual leader of the Nation of Islam, a religious, social and political movement whose aims include 'the regeneration of black self-esteem, dignity and self discipline'. A branch of the Nation of Islam has been established in the United Kingdom. Mr Farrakhan has long been anxious to come to address his followers in this country and they have been keen to receive a visit from him. Thus far, he has never been permitted to enter the country. This appeal concerns the most recent decision of the Secretary of State for the Home Department refusing him admission.
That decision was contained in a letter dated 20 November 2000. The reasons given for excluding Mr Farrakhan included the following:
"[He] has given close attention to the current tensions in the Middle East and to the potential impact on community relations in the United Kingdom. He has concluded that a visit to the United Kingdom by [Mr Farrakhan], or the lifting of his exclusion generally, would at the present time pose an unwelcome and significant threat to community relations and in particular to relations between the Muslim and Jewish communities here and a potential threat to public order for that reason. Further, the Home Secretary remains concerned that the profile of [Mr Farrakhan's] visit would create a risk of public disorder at those meetings."
Mr Farrakhan applied to Turner J. for an order quashing the decision of the Secretary of State. His application succeeded. In a judgment dated 1 October 2001 Turner J. held that the Secretary of State was required to demonstrate objective justification for excluding Mr Farrakhan from this country and that this he had failed to do.
The Secretary of State applied to Sedley L.J. for permission to appeal to this Court. Sedley L.J. granted his application, but in his reasons indicated that he did not consider that the appeal had a realistic prospect of success. The reason that he gave permission to appeal was because the issues raised by this case would be relevant on the next occasion that Mr Farrakhan applied to enter this country. As to these, Sedley L.J. commented:
"There is no issue about the primacy of the Home Secretary's judgment; nor about the need for it to be within the law. The main issues in my view are:
• To what extent Art.16 limits the applicability of Art. 10 to the Home Secretary's exercise of his power to exclude a foreign national from the UK on public good grounds.
• To what extent the licence for local intolerance given by the Otto Preminger decision ought to affect judicial review of executive decisions in this country.
Whatever the answers, the Home Secretary will still have to face up to the exiguousness of the grounds for his decision."
The nature of the challenge
Mr Blake, QC, on behalf of Mr Farrakhan, described the challenge made to the decision of the Secretary of State as a 'reasons challenge'. The Secretary of State had explained the policy that he had applied when considering whether Mr Farrakhan should be admitted to this country. He had failed, however, to give the reasons why the application of that policy had led to the exclusion of Mr Farrakhan. The consequence of the quashing of his decision was not that he was obliged to admit Mr Farrakhan, but that, if he decided to continue to exclude him, he would have to provide adequate reasons for so doing.
It is correct that the judgment of Turner J. is redolent with statements that the Secretary of State had given inadequate reasons for his decision. But the basis upon which his decision was quashed is encapsulated in the following sentence from paragraph 48 of the judgment:
"The inference which a court is bound to draw in the absence of a sufficiency of justification (reasons) is that there are none which will support the conclusion reached, or decision made, as being properly within the 'discretionary area of judgment'."
We do not believe that, under established principles of judicial review, the absence of reasons gives rise to the inference that none exists. Turner J. did not, however, rest on the inference to which he referred. He held, in paragraphs 41 and 42, that it was appropriate to carry out a rigorous review of the 'reasons provided and of the underlying circumstances' in order to decide whether the Secretary of State had reached a conclusion which was not open to a reasonable decision maker. In considering whether there was a basis for the supposition that a likelihood or risk that disorder would occur if Mr Farrakhan were to be admitted to this country, it was necessary to look at the history and at the nature of Mr Farrakhan's teachings.
Turner J. performed that exercise and concluded that it had not been shown that there was more than a 'nominal risk' that community relations would be harmed if Mr Farrakhan visited this country. It was on that basis that he ordered that the Secretary of State's decision should be quashed.
Turner J's decision was pronounced on 31 July 2001, but his reasoned judgment was handed down on 1 October. The events of September 11 had intervened. We suspect that it was with those events particularly in mind that Turner J., on October 1, emphasised that his judgment had regard to the state of affairs pertaining on 31 July and that nothing in his judgment could prejudge what decision might have been taken if other domestic political or international circumstances had prevailed.
Before us Mr Blake emphasised the point, which was plainly correct, that if we were to uphold Turner J's judgment, the Secretary of State would have to consider afresh, in the light of the circumstances prevailing at the time, any renewed application by Mr Farrakhan, to enter this country. The only practical significance of this judgment lies in any guidance that it may afford to the Secretary of State should he have to undertake that task.
The legislative framework
The position of persons seeking to enter this country from abroad is governed by a complex patchwork of statutory rules and regulations. Section 1 of the Immigration Act 1971 empowers the Secretary of State to lay down rules for regulating the entry into the United Kingdom of persons not having a right of abode here, including visitors. Section 3 of that Act provides that a person who is not a British citizen shall not enter the United Kingdom unless given leave to do so in accordance with the provisions of, or made under, the Act.
Lengthy Immigration Rules (HC395) have been made pursuant to ss. 1, 3(2) of the 1971 Act. Rule 41 lays down requirements for leave to enter as a visitor with which Mr Farrakhan would have complied. Rule 320(6) provides, however, that grounds for refusing leave to enter include:
"Where the Secretary of State has personally directed that the exclusion of a person from the United Kingdom is conducive to the public good."
Section 59 of the Immigration and Asylum Act 1999 makes provision for an appeal to an adjudicator against the refusal of leave to enter the United Kingdom. Section 60(9) of that Act provides, however, that:
"Section 59 does not entitle a person to appeal against a refusal of leave to enter, or against a refusal of an entry clearance, if—
(a) the Secretary of State certifies that directions have been given by the Secretary of State (and not by a person acting under his authority) for the appellant not to be given entry to the United Kingdom on the ground that his exclusion is conducive to the public good;
or(b) the leave to enter, or entry clearance, was refused in compliance with any such directions."
The history of the exclusion of Mr Farrakhan
Mr Farrakhan is a charismatic and a controversial figure. On various occasions, none of which was later than 1998, his public pronouncements in the United States embraced accusations, in extreme language, that those who had been guilty of exploiting the black people included wealthy Jews. More recently he has emphasised the need for black people to establish self-esteem, dignity and self-discipline.
On 16 January 1986, the then Home Secretary, Mr Douglas Hurd, gave his personal direction that Mr Farrakhan should be excluded from the United Kingdom on the ground that his presence would not be conducive to the public good. He expressed the belief that Mr Farrakhan's public statements in the United States gave reasonable cause to believe that, if he came to the United Kingdom, he would be likely to cause racial disharmony and possibly commit the offence of inciting racial hatred.
No attempt to challenge Mr Farrakhan's exclusion appears to have been made until 1997. In September of that year the late Mr Bernie Grant MP invited Mr Jack Straw, who was then Home Secretary, to reconsider Mr Farrakhan's continued exclusion. Mr Straw replied on the 30 October 1997 as follows:
"As in all cases where individuals have been excluded from the United Kingdom the need for Mr Farrakhan's continued...
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