Upper Tribunal (Immigration and asylum chamber), 2005-06-30, [2005] UKIAT 112 (Moon (Human rights, Entry clearance, Proportionality))
| Jurisdiction | UK Non-devolved |
| Judge | Hon Mr Justice Ouseley, Mr C M G Ockelton, Mr D K Allen |
| Status | Reported |
| Date | 30 June 2005 |
| Published date | 05 July 2005 |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Hearing Date | 14 March 2005 |
| Subject Matter | Human rights, Entry clearance, Proportionality |
| Appeal Number | [2005] UKIAT 112 |
|
Sun Myung Moon (Human rights, entry clearance, proportionality) USA [2005] UKIAT 00112 |
IMMIGRATION APPEAL TRIBUNAL
Date: 14 March 2005
Date Determination notified:
30th June 2005
Before:
The Honourable Mr Justice Ouseley (President)
Mr C M G Ockelton (Deputy President)
Mr D K Allen (Vice President)
Between:
REVEREND SUN MYUNG MOON
APPELLANT
and
Entry Clearance Officer, Seoul
RESPONDENT
Appearances
For the Appellant: Mr D Pannick QC & Ms K Gallafent, instructed by Mark
Brann & Co
For the Respondent: Miss M Carss-Frisk QC, and Mr T de la Mare instructed by
Treasury Solicitor
DETERMINATION AND REASONS
- 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.
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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
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We can set out the history of the application briefly.
-
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.
-
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.
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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. Correspondence between the Appellant’s solicitors and the Secretary of State ensued but ultimately the Secretary of State decided to exclude the Appellant in his decision of 8 May 2003, notified on 15 May 2003. This was a decision which he made personally, on the grounds that the presence in the United Kingdom of the Appellant would not be conducive to the public good. There was some debate about the role of public order as the basis for concern as to the public good.
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An application for entry clearance as a visitor for six months was made in July 2003 and in a decision dated 28 September 2003, the application was refused, as it had to be under paragraph 320(6) of the Immigration Rules. There were two earlier purported such decisions in July and September 2003, which the Secretary of State recognised had flaws in them.
The Legal Framework
-
The 2002 Act confers a right to appeal from a refusal of entry clearance: section 82(1) read with (2)(b). Where a decision to refuse entry clearance is made wholly or partly on the ground that the Secretary of State has directed that the exclusion of the person to whom the decision relates is conducive to the public good, that person’s appeal to an Adjudicator is limited to the ground that the decision is unlawful under section 6 of the HRA as being incompatible with the Appellant’s Convention rights: sections 84(1)(c) and 90(1) and (4).
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Article 1 of the European Convention on Human Rights provides that:
“The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section 1 of this Convention”.
-
Article 9 of the Convention states :
“1 Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance.
2 Freedom to manifest one’s religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others”.
- Article 10 of the Convention states :
“1 Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by a public authority and regardless of frontiers. This article shall not prevent states from requiring the licensing of broadcasting, television or cinema enterprises.
2 The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”
-
Article 11 of the Convention states :
“1 Everyone has the right to freedom of peaceful assembly and of freedom of association with others, including the right to form and to join trade unions for the protection of his interests.
2 No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others. This article shall not prevent the imposition of lawful restrictions on the exercise of these rights by members of the armed forces, or the police or other administration of the State.”
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Article 14 of the Convention states :
“The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status”.
The Appeal
-
The Appellant appeals to the IAT from the dismissal of his appeal by an Adjudicator, Mr M A Clements, promulgated on 19 April 2004. In essence he repeats the grounds upon which he relied before the Adjudicator, although taking issue with a number of conclusions reached by the Adjudicator and drawing on the decision of the Court of Appeal in Huang and others v SSHD [2005] EWCA Civ 105.
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The grounds of appeal, shortly, are:
(1) That the Adjudicator erred in law in holding that the Appellant could not rely on any Article of the ECHR other than Article 8 as a basis for saying that the refusal of entry clearance breached his Convention rights; he could rely on Articles 9, 10 and 11 as the binding decision in R (Farrakhan) v SSHD [2002] QB 1391 made clear and as was correct even if Farrakhan were not binding to that effect;
(2) On the merits, there was a breach of Convention rights and the Adjudicator was wrong not to find such a breach; even if the IAT were against the Appellant on the first ground, it was asked nonetheless to reach a view on the latter.
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The Secretary of State contended that the Adjudicator was right as to the limited ambit of the Convention in entry clearance cases, and Farrakhan reached no decision binding on the Adjudicator or on the IAT. In any event, there...
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