Sun Myung Moon v Entry Clearance Officer, Seoul
| Jurisdiction | England & Wales |
| Judgment Date | 30 June 2005 |
| Date | 30 June 2005 |
| Court | Asylum and Immigration Tribunal |
Immigration Appeal Tribunal
The Honourable Mr Justice Ouseley (President), Mr C M G Ockelton (Deputy President) and Mr D K Allen (Vice President)
Representation:
Mr D Pannick QC and Ms K Gallafent instructed by Mark Brann and Co, for the Claimant;
Miss M Carss-Frisk QC and Mr T de la Mare instructed by the Treasury Solicitor, for the Respondent.
Cases referred to:
Abdulaziz, Cabales and Balkandali v UKHRC (1985) 7 EHRR 471, ECtHR
Adams and Benn v United KingdomHRC (1997) 23 EHRR CD160, ECtHR
Advic v United KingdomHRC (1995) 20 EHRR CD125, ECtHR
Agee v United Kingdom (1976) 7DR 164, ECtHR
AH (Article 8—ECO—Rules) Somalia [2004] UKIAT 00027
Ahmut v NetherlandsHRC (1997) 24 EHRR 62, ECtHR
Al Skeini v Secretary of State for Defence [2004] EWHC 2911
B v Secretary of State for Foreign and Commonwealth AffairsUNK [2004] EWCA Civ 1344; [2005] Imm AR 32; [2005] INLR 36
Bankovic v BelgiumUNK (2001) 11 BHRC 435, ECtHR
CA v Secretary of State for the Home DepartmentUNK [2004] EWCA Civ 1165; [2004] Imm AR 640; [2004] INLR 453
Huang v Secretary of State for the Home Department; Abu-Qulbain v Secretary of State for the Home Department; Kashmiri v Secretary of State for the Home DepartmentUNK [2005] EWCA Civ 105; [2005] Imm AR 240; [2005] INLR 247
Kugathas v Secretary of State for the Home DepartmentUNK [2003] EWCA Civ 31; [2003] INLR 170
MB (Huang—Proportionality—Bulletins) Croatia [2005] UKIAT 00092
Omkarananda and Divine Light Zentrum v Switzerland (1981) 25 DR, ECtHR
Piermont v FranceHRC (1995) 20 EHRR 301, ECtHR
R (on the application of Ekinci) v Secretary of State for the Home DepartmentUNK [2003] EWCA Civ 765; [2004] Imm AR 15
R (on the application of Farrakhan) v Secretary of State for the Home DepartmentUNK [2002] EWCA Civ 606; [2002] Imm AR 447; [2002] INLR 257
R (on the application of Mahmood) v Secretary of State for the Home Department [2001] Imm AR 229; [2001] INLR 1
R (on the application of Quark Fishing Ltd) v Secretary of State for Foreign and Commonwealth AffairsUNK [2004] EWCA Civ 527
R (on the application of Razgar) v Secretary of State for the Home DepartmentUNKELR [2004] UKHL 27; [2004] 2 AC 368; [2004] Imm AR 381; [2004] INLR 349
R (on the application of Ullah) v Special Adjudicator; Do v Secretary of State for the Home DepartmentUNKELR [2004] UKHL 26; [2004] 2 AC 323; [2003] Imm AR 227; [2002] INLR 620
R v Immigration Officer at Prague Airport and Another ex parte European Roma Rights Centre and OthersUNKELR [2004] UKHL 55; [2005] 2 AC 1; [2005] Imm AR 100; [2005] INLR 182
Samaroo v Secretary of State for the Home DepartmentUNK [2001] EWCA Civ 1139; [2002] INLR 55
Sen v NetherlandsHRC (2003) 36 EHRR 7
Soering v United KingdomHRC (1989) 11 EHRR 439, ECtHR
Legislation judicially considered:
Human Rights Act 1998, s 6
Immigration Rules HC 395 (as amended), Rule 320(6)
Nationality, Immigration and Asylum Act 2002, ss 82(1) and (2)(b), 84(1)(c), and 90(1) and (4)
Human rights — Articles 8, 9, 10 and 11 of the ECHR — entry clearance — Farrakhan — proportionality
The Claimant, an 85 year old resident of the United States of America,1 was the spiritual leader of the Family Federation for Unification and World Peace (‘the Federation’). He had last visited the United Kingdom in 1978, but subsequent applications for entry clearance had been refused. In May 2003, the Secretary of State for the Home Department made a personal decision to exclude him from the United Kingdom on the ground that his presence in the United Kingdom would not be conducive to the public good. In July 2003, the Claimant made a further application for entry clearance as a visitor for the purpose of meeting with and providing guidance to the members of the Federation in the United Kingdom.
The Secretary of State refused the application under Rule 320(6) of the Immigration Rules HC 395 (as amended) which provided that an application was to be refused ‘where the Secretary of State has personally directed that the exclusion of a person from the United Kingdom is conducive to the public good’. By virtue of ss 84(1)(c) and 90(1) and (4) of the Nationality, Immigration and Asylum Act 2002, the right of appeal against that decision was restricted to the ground that the decision was unlawful as incompatible with the Claimant's rights under the ECHR. The Adjudicator dismissed the appeal on the ground that the Claimant was not entitled to rely on any Article of the ECHR other than Article 8. The Claimant appealed to the Immigration Appeal Tribunal.
Held, dismissing the appeal:
(1) the scope of the ECHR was essentially territorial; rights under the ECHR could be asserted outside the jurisdiction or territory of a particular member state only in limited circumstances; the exceptions to the notion of territoriality included effective member state control over an area and specific acts of consular or diplomatic officials; the ‘consular exception’ did not encompass decisions relating to entry clearance applications; such decisions could not have the effect of bringing a non-national within the jurisdiction of a member state for the purpose of enabling that non-national to assert rights under the ECHR (paras 44, 47, 53 and 59);
(2) Article 8 of the ECHR could, however, be relied on where refusal of entry clearance interfered with a claimant's enjoyment of family life with someone already settled in the United Kingdom; in such a case, no analogy could be made between family life, which required physical proximity in order to be fully enjoyed, and free communication and association for the purpose of religious practice under Articles 9, 10 and 11 of the ECHR; physical proximity was not essential to the manifestation of religious beliefs or the exercise of the freedom of expression and association; the true basis of the Article 8 jurisprudence was arguably that it was the rights of those settled in the United Kingdom which were infringed; the proper way to enforce Article 8 rights was by way of an application for judicial review of the decision by the victim of the breach in the United Kingdom (paras 45, 48, 68, 69 and 74);
(3) following the decision of the Court of Appeal in R (on the application of Farrakhan) v Secretary of State for the Home DepartmentELR [2002] QB 1391, the ECHR would only otherwise be engaged where refusal of entry or expulsion of a non-national was solely for the purpose of preventing that non-national from exercising a right under the ECHR within the territory of the member state or as a sanction for having exercised such a right; Farrakhan, however, did not address the issue of ‘territoriality’ as it proceeded on the basis of a concession by the Secretary of State as to the application of Article 10 of the ECHR (paras 30, 38, 40, 42 and 43);
(4) as a general principle, subject to the exception created by the Article 8 jurisprudence, an application for entry clearance did not engage the ECHR for the benefit of a claimant; there was no error by the Adjudicator in his conclusion that the Claimant did not have rights which were capable of being infringed (paras 73 and 78);
(5) the Adjudicator had erred in law in failing to reach an independent assessment of the evidence available before him and in allowing a high degree of deference to the Secretary of State's opinion as to proportionality; if the Claimant had been able to rely on the ECHR the appeal would have been allowed (paras 111–114, 131–132 and 138).
Determination and Reasons
Mr Justice Ouseley, President
[1] This appeal concerns the refusal in September 2003 by the Entry Clearance Officer Seoul to grant entry clearance to the Reverend Sun Myong Moon for a six-month visit visa to the United Kingdom. The Reverend Moon is the spiritual leader of the Family Federation for Unification and World Peace, the umbrella body for the activities of the Unification Movement. He lives in the USA and is 85 years old.
[2] This case is not anonymised because the Appellant's leading role in the Unification Movement is crucial to his claim and it would be very difficult for the decision to be understood if it were so anonymised that neither he nor his organisation could be identified. Anything less would enable his identity readily to be inferred. He does not face persecution and requires none of the protection which anonymity might afford, nor does he seek it.
History
[3] We can set out the history of the application briefly.
[4] The Appellant last visited the United Kingdom in 1978. In 1978, an appeal had been allowed against the Secretary of State's refusal to extend the Appellant's permission to stay as a visitor on the ground that he might not leave at the expiry of the extension. In 1989, the Secretary of State decided that the Appellant should not be admitted to the United Kingdom because of his character and conduct. An Adjudicator again allowed the appeal and the necessary letters of consent were then issued in 1991 and 1992, but were not taken up.
[5] In 1995, the Secretary of State decided that the presence in the United Kingdom of the Appellant would not be conducive to the public good, but that decision was quashed on Judicial Review because of a want of procedural fairness in telling the Appellant what had changed since the issue of the two letters of consent. The Secretary of State then undertook a review of the decision and invited representations from the Appellant and a number of others who were interested in the exclusion of the Appellant from the United Kingdom.
[6] By a letter of 12 April 2001, the Secretary of State told the Appellant that he was minded to exclude him on the grounds that his presence in the United Kingdom would not be conducive to the public good, and inviting representations before a final decision was made. The representations of others were also invited...
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