R (on the application of Lord Carlile of Berriew QC) v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lady Hale,Lord Neuberger,Lord Kerr,Lord Sumption,Lord Clarke |
| Judgment Date | 12 November 2014 |
| Neutral Citation | [2014] UKSC 60 |
| Date | 12 November 2014 |
| Court | Supreme Court |
[2014] UKSC 60
Lord Neuberger, President
Lady Hale, Deputy President
Lord Kerr
Lord Clarke
Lord Sumption
Appellants
Lord Pannick QC Harry Adamson
(Instructed by Masoud Zabeti, Mishcon de Reya)
Respondent
James Eadie QC Robert Palmer
(Instructed by Nicola Morton-Wright, Treasury Solicitors)
Heard on 13 May 2014
The United Kingdom has had a uniquely difficult relationship with Iran for at least a century and a half. British control of the country's natural resources in the late nineteenth century and the first half of the twentieth, a succession of British-orchestrated coups, and two extended British military occupations have combined to leave an enduring imprint on political sentiment. The passage of time heals many things, but in an ancient and distinctive national culture like Iran's, injured pride can subsist for generations. In recent years, the participation of the United Kingdom in international sanctions against Iran and a number of violent incidents have revived old suspicions at a time when negotiations with Iran about middle eastern issues, nuclear non-proliferation and human rights have assumed considerable importance for British interests and global security.
This is the background against which the Home Secretary, on the advice of the Foreign Office, decided that it was not conducive to the public good to allow Mrs Maryam Rajavi to enter the United Kingdom. Mrs Rajavi is described in the agreed Statement of Facts as a "dissident Iranian politician, resident in Paris". Between 1985 and 1993, she was the co-chair and then the Secretary-General of Majahedin e-Khalq ("MeK"), otherwise known as the People's Mojahedin Organisation of Iran. MeK is a political organisation founded in 1963 by opponents of Shah Mohammed Reza Pahlavi, which participated in the Iranian revolution of 1979 but subsequently fell out with the regime led by Ayatollah Khomeini. From the 1970s until 2001, MeK supported terrorist violence inside Iran, including bomb attacks and assassinations. It supported Iraq in its eight-year war with Iran between 1981 and 1989, when its fighters fought alongside Iraqi forces against those of Iran. For at least part of this period, Mrs Rajavi was also deputy commander of the armed forces of the opposition National Liberation Army. The evidence is that while no longer holding any formal office in MeK, she remains its de facto leader. Since 1993, she has also been the President-elect of the National Council of Resistance of Iran, a political organisation opposed to the current government of the country. Mrs Rajavi has visited the United Kingdom on four occasions, in 1985, 1990, 1991 and 1996. But in 1997, the then Secretary of State excluded her from the United Kingdom on the ground that her presence there "would not be conducive to the public good for reasons of foreign policy and in the light of the need to take a firm stance against terrorism." That exclusion has been reviewed at regular intervals, but has remained in force ever since.
Section 3 of the Terrorism Act 2000 provides for the proscription of organisations concerned in terrorism. Between 2001 and 2008, MeK was a proscribed organisation in the United Kingdom for the purposes of the Act, and in a number of other jurisdictions under corresponding legislation. Its proscription was revoked in the United Kingdom on 30 November 2007 by the Proscribed Organisations Appeals Commission ("POAC"). The Commission found that while MeK had been actively engaged in terrorism until June 2001, this had no longer been true since that date. The organisation was subsequently de-proscribed in the European Union (January 2009), the United States (September 2012) and Canada (December 2012). It is common ground that it is now a wholly non-violent organisation and Mrs Rajavi's own democratic credentials are not in dispute. She lives in France and is not excluded from any European country other than the United Kingdom. She engages regularly with parliamentarians in the European Parliament and a number of European national legislatures.
On 5 December 2010, Lord Carlile of Berriew QC, on behalf of himself and two other members of the House of Lords, asked for a meeting with the current Home Secretary to discuss the possibility of Mrs Rajavi's exclusion being lifted to enable her to address meetings in the Palace of Westminster on democracy, human rights and other policy issues relating to Iran. The request was accompanied by written representations. The Home Secretary sought the advice of the Foreign Office, where Lord Carlile's request was personally considered by the Foreign Secretary and the Parliamentary Under Secretary of State with the support of officials. On 1 February 2011, the Home Secretary responded to Lord Carlile's request for a meeting. She wrote that she had reconsidered Mrs Rajavi's case, taking into account the views of the Foreign Office and other government departments, as well as his representations, but had concluded that her admission to the United Kingdom was not conducive to the public good. She wrote:
"The exclusion of Mrs Rajavi in 1997 pre-dates, and was not linked to, the proscription of the People's Mojahedin Organisation of Iran (PMOI). The de-proscription of this organisation therefore has no direct bearing on whether or not Mrs Rajavi's exclusion should be maintained, which involves wider considerations.
The power to exclude is a serious one and I do not take such decisions lightly. In taking such decisions I must ensure that I am acting reasonably, proportionately and consistently and that there is a rational connection between the exclusion and the legitimate aim being pursued."
No other reasons were given at this stage.
On 12 April 2011, Mishcon de Reya, acting for a cross-party group of MPs and peers, wrote a letter before action, making further representations, and criticising the decision on the ground that it contravened their clients' rights under articles 9 and 10 of the European Convention on Human Rights. They asked for the decision to be reconsidered. In the absence of a satisfactory response, they said that their clients would apply for judicial review. The Treasury Solicitor responded on the Secretary of State's behalf on 13 May 2011. The main points made were that articles 9 and 10 of the Convention were not engaged, because there were other means by which parliamentarians could communicate with Mrs Rajavi. In particular they could set up a video link or meet her personally in France. If, however, articles 9 and 10 were engaged, there was still no contravention because while the Secretary of State was not prepared to go into her reasons in detail, she had concluded that any right arising under those articles was outweighed by "other factors rendering it appropriate to maintain her exclusion decision."
By the time that the Treasury Solicitor's letter was written, sixteen cross-party members of the House of Commons and the House of Lords had applied on 3 May 2011 for judicial review to challenge the Secretary of State's decision. Mrs Rajavi herself was added as a claimant in September 2011. In October 2011, after considering their application and the evidence in support of it, the Secretary of State made a second, fully reasoned decision, which was communicated to the claimants' solicitors by a letter from the UK Border Agency dated 10 October. Her reason, in summary, was "the significant damaging impact on UK interests in relation to Iran it is assessed that lifting the extant exclusion would bring about, and the consequences that may have for the lives and interests of others." Although the Secretary of State maintained her view that there was no interference with the claimants' article 9 rights, she did not on this occasion dispute that article 10 was engaged. What was said was that the availability of alternative methods of communication with Mrs Rajavi meant that any interference with the claimants' article 10 rights was limited, and that the decision was proportionate to it.
The Secretary of State's reasons have been subjected by the claimants to detailed criticism. I therefore propose to set them out substantially in full:
"Whilst it is accepted that the MeK was de-proscribed by the UK in 2008 on the basis that it could not reasonably be believed to have continued to be concerned in terrorism since June 2001, the organisation's historical activities and Mrs Rajavi's past role in them as de facto leader cannot be ignored. It is widely recognised that the MeK was actively concerned in terrorist activities between the 1970s and 2001. Acts committed by the MeK during this period include attacks on western interests. It is against this background that Mrs Rajavi was excluded from the UK in 1997, following her move to Iraq from where she had urged the MeK to 'liberate' Iran, at a time when the MeK had continued to mount terrorist attacks there. The MeK's history of terrorist violence until June 2001 and involvement in the Iran/Iraq war, where it was fighting with Iraqi forces against Iran, continues to resonate today. It has resulted in there being little support for the group among the general population in Iran, including anti-regime organisations, demonstrators and oppositionists, The FCO does not agree with Lord Carlile's own assessment that Mrs Rajavi 'leads the movement for democratic change in Iran' (para 22 of his witness statement). It assesses that the MeK is not a credible opposition group in Iran. The well-known Iranian opposition, the Green Movement, for example, has publically distanced itself from any involvement in it.
The UK has diplomatic relations with Iran. There is a...
To continue reading
Request your trial
-
Al-Tec Inc. Ltd v James Hogan
... [1998] 3 WLR 675; Huang v Secretary of State for the Home Department [2007] 2 AC 167; R v Secretary of State for the Home Department [2014] UKSC 60. These criteria in summary are that: (1) there must be a sufficiently important objective in making the restriction; (2) the measures used mu......
-
Malcolm Bruce Moncrief-Spittle v Regional Facilities Auckland Ltd
...Miss Behavin' Ltd [2007] UKHL 19, [2007] 1 WLR 1420; and Regina (Lord Carlile of Berriew) v Secretary of State for the Home Department [2014] UKSC 60, [2015] AC 116 Dorê v Barreau du Quêbec 2012 SCC 12, [2012] 1 SCR 395. 117 See, for example, Director of Public Prosecutions v Ziegler [......
-
YY v Minister for Justice and Equality
...Lynn's reliance on the judgment of Lord Sumption in R. (Lord Carlile of Berriew QC) v. Secretary of State for the Home Department [2015] AC 945, at para. 34, which refers to heightened or anxious scrutiny, that this point is an attempt to rerun the Meadows case, notwithstanding that the Su......
-
All Party Parliamentary Group on Extraordinary Rendition GIA 2230 2012
...has overstated the Intelligence Information Sharing Risk (see R (Lord Carlile of Berriew) v Secretary of State for the Home Department [2014] UKSC 60 in particular at paragraph 71, which also reflects the institutional competence rationale referred to above as does paragraph 75). 102. Again......
-
Re-Evaluating the Doctrine of Deference in Administrative Law
...policy which respected Muslim beliefs but did 140 Ibid 270–71. 141 See, eg, R (Carlile) v Secretary of State for the Home Department [2015] AC 945, 965 [22] (Lord Sumption JSC) (‘Carlile’); AXA General Insurance Ltd v Lord Advocate & Ors (Scotland) [2012] 1 AC 868, 907 [32] (Lord Hope); R (......
-
The Reasonableness of Proportionality in the Australian Administrative Law Context
...of powers more generally, and cited with approval in those contexts. See, eg, R (Carlile) v Secretary of State for the Home Department [2014] UKSC 60, [20]–[22] (Lord Sumption JSC), [150] (Lord Kerr JSC). 32 Taggart, 'Proportionality', above n 1, 454–61; Knight, above n 30, 413 –5. 33 Knigh......
-
The Survival of Reasonableness Review: Confirming the Boundaries
...of State for the Home Department [2001] 2 AC 532, 549 [32] (Lord Cooke). 2 R (Carlile) v Secretary of State for the Home Department [2015] AC 945, 970 [32] (Lord Sumption SCJ). 3 This pa per uses the phrase ‘reasonableness’ review to refer to all forms of irrationality, unreasonableness, We......
-
The Normative Structure of Australian Administrative Law
...the boundaries of judicial review is unique to Australia. Cf R (Lord Carlile of Berriew) v Secretary of State for the Home Department [2015] AC 945, 965 [22]. 64 Whether attributed to Brennan J in Quin (See, eg, Plaintiff M70/2011 v Minister for Immigration and Citizenship (2011) 244 CLR 14......