R Naik v Secretary of State for The Home Department
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE CARNWATH,LORD JUSTICE JACKSON,LORD JUSTICE GROSS |
| Judgment Date | 19 December 2011 |
| Neutral Citation | [2011] EWCA Civ 1546 |
| Docket Number | Case No: C4/2010/2913 |
| Court | Court of Appeal (Civil Division) |
| Date | 19 December 2011 |
[2011] EWCA Civ 1546
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM HIGH COURT, QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
MR JUSTICE CRANSTON
CO/8625/2010
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Carnwath
Lord Justice Jackson
and
Lord Justice Gross
Case No: C4/2010/2913
Raza Husain QC, Ben Emmerson QC, Matthew Ryder QC & Duran Seddon (instructed by Irvine Thanvi Natas Solicitors) for the Appellant
James Eadie QC & Jeremy Johnson QC (instructed by Treasury Solicitors) for the Respondent
Hearing dates : Wednesday 5th & Thursday 6th October, 2011
Dr Naik is a Muslim speaker of international reputation. The judge summarised his background:
"Dr Zakir Naik is a national of India, born in 1965. He graduated in medicine from the University of Mumbai. Since then he has become a figure of significant influence in the Muslim world, whose public appearances frequently attract crowds of many thousands. Over the past 13 years, Dr Naik has delivered more than 1,300 public addresses around the world. A particular feature of them is the associated question and answer sessions. Over 100 of his talks, dialogues, debates and symposia are available on recordings. Since 2007, he has organised an annual international peace conference in Mumbai, which now attracts over one million people. Dr Naik is the author of books on Islam and comparative religion. He has participated in symposia with leading figures of other faiths. In a list of the top 10 spiritual gurus of India, published in the Indian Express in 2010, Dr Naik was listed first. In an article published in the Sunday Express on 22 February 2010, Dr Naik was ranked 89 in a list of the 100 most powerful Indians of 2010…" (para 2)
He is chairman of the Islamic Research Foundation International ("IRFI"), a charity based in the United Kingdom. He is involved in a number of not-for-profit broadcast companies in the broadcasting field, including Lords Production Inc Ltd, a UK company, which holds the broadcast licence for Peace TV.
He has been a regular visitor to the UK since 1990, and has given many public speeches. Until this year his visas have been renewed without difficulty:-
i) In August 2001, the High Commission in Mumbai granted him a 5 year multiple entry visitor visa. He conducted public lecture tours in September 2001, twice in 2002 and twice in 2005. They appear to have passed without significant incident or concern.
ii) In July 2006 he was given a two year visitor visa, and further tours followed. His tour in August 2006 attracted some adverse publicity in relation to a proposed lecture in Cardiff. A local MP was quoted in the Western Mail as calling on Cardiff County Council "to prevent this hate-monger from having a platform for his obnoxious views". The council told the newspaper that it had no reason to suspect any risk to public security. There was a well-publicised tour in February 2007.
iii) In June 2008 he was issued with a 5 year multiple entry business visit visa. His visit over a 5 day period in late July—early August 2008 included talks on Islamic themes to gatherings of between 50–300 people, in London, Preston and Manchester. He visited the UK again in June 2009, and gave a lecture in London.
During all this time, his visits had attracted no special attention from the authorities in London. The Secretary of State had not been involved in the grant of the visas. In December 2008, for the first time, his name was added to the local "alert list" used by the Mumbai High Commission, but there is no extant record of why this was done. No steps were taken in Mumbai or London to revoke the visa.
In 2010 plans were made for major events at the Sheffield Arena, Wembley Arena and the Birmingham National Exhibition Centre in late June. They were expected to attract a total of some 45,000 people. Preparations involved considerable organisation and investment. On 25 th May the Foreign and Commonwealth Office became aware of these planned events and contacted the UKBA Special Cases Directorate, who carried out research into Dr Naik's background and profile. Charles Farr, director general of the Office for Security and Counter Terrorism ("OSCT"), was informed. That office has lead responsibility for the government's "Prevent" Counter Terrorism strategy.
On 30 th May the Sunday Times published an article under the headline "Muslim preacher of hate is let into Britain". The article described the issue of Dr Naik's admission as a "political test" for the government. It included quotations from Dr Naik's speeches (including some later relied on by the Home Secretary). It referred to reports in the Indian press of links between Dr Naik's organisation and alleged terrorists.
In response to that publicity, in early June, Dr Naik's representatives met Home Office representatives, including Mr Farr and Debbie Gupta, director of "Prevent". On 3 rd June Dr Naik sent the Home Office a detailed statement, refuting the Sunday Times allegations, and asserting his mission to "bring people together on one common platform of peace". Further statements and letters followed between then and 14 th June. They reasserted that he had spoken out against all acts of terrorism and unequivocally condemned acts of violence, including 9/11. His forthcoming tour would be focussed on delivering a message of peace based on Islamic values and condemning terrorism and violent extremism. An exclusion order would be seen as unjust, would adversely affect his many supporters in the UK, and would be a lost opportunity for him to play a constructive role. It would also cause the loss of very substantial amounts in donations and sponsorship money.
On 16 th June, two days before he was due to arrive, the Home Secretary made the decision to exclude him. He was informed by letter of 17 th June that he was to be excluded "for engaging in unacceptable behaviour by making statements that attempt to justify terrorist activity and fostering hatred"; and that the entry clearance officer had been instructed to revoke his visa under rule 30A(iii) of the Immigration Rules, on the grounds that his exclusion would be "conducive to the public good". On the same day, the decision was reported to Members of Parliament in a letter from the Security Minister, Baroness Neville-Jones. Following further representations, including a detailed letter from his solicitors, the decision was reaffirmed by letter from the Treasury Solicitor dated 25 th June.
There followed a letter before claim dated 12 th July from Dr Naik. Following reconsideration of the case by the Home Secretary, the decision was reaffirmed for reasons given in a letter dated 9 th August.
Judicial review proceedings were commenced challenging the three decisions of 16 th June, 25 th June and 9 th August. Cranston J held that the first two decisions were vitiated by procedural unfairness (paras 64–68) and accordingly made a declaration that they were unlawful. That part of his judgment is not under appeal, although Mr Eadie submits that, for the purposes of any possible remedies under the Human Rights Act, those decisions must be looked at as part of the "entire decision-making process" including the August letter. In the rest of this judgment therefore I will concentrate principally on the final decision of 9 th August, which the judge upheld.
The judgment below (para 23ff) gives a full account of this letter. I note the main points. It said that the decision had been made after considering "a large number of comments made by Dr Naik over a number of years" including those set out in Annex A to the letter. On the other hand she "noted and accepted" that he had made a number of statements condemning terrorist violence. She had also considered "reports regarding third parties and organisations that link the statements of Dr Naik to support their own extremist views", of which examples were given in Annex B. She concluded:
"(a) Dr Naik has made a number of statements plainly within the unacceptable behaviours policy.
(b) He has made other statements which, whether they would do so or not, were divisive and potentially damaging to community relations and were inconsistent with his assertions that his message was one of tolerance and building bridges between faiths.
(c) The revision of the unacceptable behaviours policy in October 2008 highlighted the weight of the burden on those, such as Dr Naik who have made such statements and who now seek to distance themselves from them.
(d) Whilst recognising that some recent public statements by Dr Naik have moved away from some of the past statements (and also that some of those statements were made some years ago), the Secretary of State is not satisfied that that burden has been met. She does not consider that, viewing his statements as a whole, Dr Naik has clearly, unambiguously, consistently and publicly condemned terrorist violence and repudiated his extremist views despite the many opportunities he has had to do so. She remains to be convinced that his message is a non-extremist and conciliatory one as he now asserts. Her view remains that he might continue to communicate the sorts of views he has espoused in the past were he to be admitted to the UK.
(e) In the light of these conclusions, she is not persuaded that the undertaking he has offered should cause her not to exclude him.
(f) In all the circumstances, her view remains that Dr Naik's exclusion was conducive to the public good."
She considered that any...
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