R (Farrakhan) v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE TURNER |
| Judgment Date | 01 October 2001 |
| Neutral Citation | [2001] EWHC 634 (Admin),[2001] EWHC 781 (Admin) |
| Docket Number | Case No: CO/620/2001,CO/620/2001 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 01 October 2001 |
[2001] EWHC 634 (Admin)
IN THE HIGH COURT OF JUSTICE
ADMINISTRATIVE COURT
QUEEN'S BENCH DIVISION
Mr Justice Turner
CO/620/2001
MR N BLAKE QC, MR M RYDER & MR R HUSAIN (hearing only) (instructed by Christian Fisher, 42 Museum Street, Bloomsbury, London, WC1A 1LY) appeared on behalf of the claimant
MR D PANNICK QC (hearing only) & MR S KOVATS (instructed by the Treasury Solicitor) appeared on behalf of the defendant
Mr Blake and Mr Kovats, it is a matter of extreme personal regret that due to intense pressure in the last few days of term, which even as late as yesterday morning I hoped to be able to overcome and deliver my full judgment, it has not been possible to complete it. However, my work has gone sufficiently far to have enabled me to reach the conclusion which I have, which I propose to announce and give reasons for that conclusion on the first working day of next term.
In this case the claimant seeks the quashing of the decision of the Home Secretary maintaining his exclusion from the United Kingdom. That decision was given on 20th November 2000 and my decision is that that be quashed.
My Lord, I am most grateful. My Lord, it may well be that all other matters should be put over, but —
MR JUSTICE TURNERAll other matters probably relate to costs.
I know that there is a matter which Mr Kovats wishes to raise.
MR KOVATS: My Lord, there are two matters. First, I have discussed this with Mr Blake and we are agreed, subject to your Lordship's view, that the time for seeking permission to appeal should start running from delivery of the full judgment, the reasons.
MR JUSTICE TURNERYes, obviously so.
MR KOVATS: The second matter is that the defendant would seek a stay on the quashing until full reasons are given.
MR JUSTICE TURNERYes.
MR KOVATS: Again, I understand that Mr Blake is agreed, subject to your Lordship's view.
MR JUSTICE TURNERWell, we are concerned with a matter of weeks not years. Very well.
That will just leave the question of whether your Lordship thinks fit to deal with costs now.
MR JUSTICE TURNERNo, I will deal with all ancillary matters at the time I give my reasons.
I am sorry to have disappointed the parties in this way but I thought it better to announce the result rather than keep them in suspense.
[2001] EWHC 781 (Admin)
IN THE HIGH COURT OF JUSTICE
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand,
London, WC2A 2LL
The Honourable Mr Justice Turner
Case No: CO/620/2001
Nicholas Blake QC, Mathew Ryder and Raza Hussain (instructed by Christian Fisher for the Claimant)
David Pannick QC and Steven Kovats (instructed by Treasury Solicitor for the Defendant)
Introduction
1. The claimant challenges the decision of the Secretary of State for the Home Department dated 20 November 2000 by which an order of exclusion on him was maintained. In the relevant part of the decision letter, the Home Secretary wrote:
[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 [the claimant], 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 [the claimant's] visit would create a risk of public disorder at those meetings.
As the terms of this letter indicate, this is a matter with a long history.
The statutory framework
2 Section 1 of the Immigration Act empowers the Secretary of State to lay down rules for regulating the entry into the United Kingdom of persons not having the right of abode and include the provision for the admission, subject to restrictions and conditions, of persons coming as visitors. There is no right of appeal to the Immigration Appeal Tribunal under the provisions of section 59 of the Immigration and Asylum Act 1999 since section 60(9) provides that it does not entitle a person to appeal against a refusal of leave to enter 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 … on the ground that his exclusion is conducive to the public good …
(b) the leave to enter, or entry clearance, was refused in compliance with any such directions
The Immigration Rules contemplate that a person seeking entry can be excluded where the Secretary of State personally directs that exclusion is conducive to the public good; see paragraph 320(6) of HC 395.
History
3 On 16 January 1986, the then Home Secretary gave his personal direction that entry into the United Kingdom by the claimant would not be conducive to the public good. In September 1997, the late Bernie Grant MP invited the then Home Secretary to reconsider the continued exclusion of the claimant. By letter dated 30 October of the same year, the Home Secretary maintained the exclusion stating that
It was concluded that the threat [the claimant] posed to the maintenance of racial harmony in the United Kingdom remained.
The balance between the need to preserve the freedom of speech and the undesirability of giving a platform here to those espousing views which would be deeply offensive to the public or large sections of the community is, of course, a very delicate one.
4 The letter concluded by inviting representations either from Mr Grant or the claimant, himself. Such were in course of time forthcoming. Meanwhile the Home Secretary carried out a review of the position. On 3 July 1997, the claimant's personal attorney informed the Home Office that if permitted to enter the United Kingdom, Minister Farrakhan would not come to stir tensions. His objective would be to summon all people particularly the Black community to rebuild the family through atonement and becoming an example of righteous conduct in their daily lives.
5 On 9 June 1998, and during the performance of that review, in circumstances which, despite enquiry raised by the court, remain obscure, the claimant was invited to sign an undertaking as to his conduct were he to be granted entry into the United Kingdom at any time in the future. It is important to understand that it was no part of the claimant's case before this court that the terms of the request or the giving of the undertaking created any expectation that the claimant would at any time in the future be granted leave to enter.
6 It is, however, relevant to consider in outline the terms of the undertaking. This involved an express recognition of the pluralistic nature of society in the UK and the need to avoid doing or saying anything which would be likely to jeopardise good community relations. The claimant also expressly recognised that the right to freedom of speech had to be exercised with due regard to the rights of others. There was a reference to the Public Order Act and the possibility of incitement to racial hatred giving rise to the commission of an offence under that Act. Finally, the claimant recognised that any breach of the undertaking would cause the Home Secretary to reconsider the exclusion of the claimant from the United Kingdom.
7 On 6 July of the same year, the Home Secretary informed the claimant that he had decided to maintain the exclusion. In a letter which contained a provisional notification of that decision, he invited further representations but made plain the basis of his then decision. He wrote:
The Home Secretary is able personally to exclude from the United Kingdom any individual whose presence here would not be conducive to the public good. An individual who holds views which are deeply offensive to large sections of the population would not normally be excluded unless the Home Secretary was also satisfied that the individual posed a threat to public order here or was likely to commit criminal offences here; in particular under the racial hatred provisions of the Public Order Act 1986.
After a reference to the undertaking, the Home Secretary continued:
He has also formally consulted several groups representing the black and Muslim population in the United Kingdom and has considered their views. All these groups expressed the basic sentiment that refusing to allow you into the United Kingdom without any firm evidence that your presence would lead to racial disturbance ran counter to the liberal and tolerant tradition of this country.
8 The Home Secretary then referred to a number of recent sayings by the claimant and continued:
[He] has received numerous representations against the lifting of your exclusion from Members of Parliament here and from Jewish representative bodies. They have suggested that your views are bigoted and racially divisive; that they exceed the right to freedom of speech and the spreading of such views incites anti-Semitism. In the circumstances the Home Secretary considers there is serious concern that you would, whilst in the United Kingdom, use language which would constitute an offence under the [Act of 1986] of...
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