Immigration

R (on the application of Lord Carlile of Berriew QC and others) v Secretary of State for the Home Department: Supreme Court: 12 November 2014

Leave to enter – Refusal to leave – Defendant secretary of state excluding entry to the UK of eminent dissident Iranian politician, MR – Claimants contending decision disproportionate – Divisional Court and Court of Appeal, Civil Division rejecting claimants’ contentions – Whether secretary of state’s reasons being legally irrelevant

MR was 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). From the 1970s until 2001, MeK supported terrorist violence inside Iran, including bomb attacks and assassinations. While no longer holding any formal office in MeK, MR remained its de facto leader.

In 1997, the then secretary of state excluded her from the UK on the ground that her presence ‘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’. Between 2001 and 2008, MeK was a proscribed organisation in the UK for the purposes of the Terrorism Act 2000. In November 2007, its proscription was revoked and it was common ground that MeK was now a wholly non-violent organisation.

In February 2011, the defendant secretary of state responded to a request by the first claimant to reconsider MR’s case. She stated that she had taken into account the views of the foreign office and other government departments, as well as the first claimant’s representations, but concluded that MR’s admission to the UK was not conducive to the public good. In October 2011, she made a second fully reasoned decision, upholding the exclusion.

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’. In January 2012, the secretary of state made a third decision in which she maintained the exclusion of MR. In the courts below, the claimants’ case was that the secretary of state’s decision to exclude MR was disproportionate.

It had failed to give due weight to the significance of the right of free speech protected by article 10 of the European Convention on Human Rights and the stringency of the test for justifying any interference with it, and it had overstated the likelihood and gravity of any hostile reaction on the part of the government of Iran. Those contentions were rejected both by the Divisional Court and by the Court of Appeal, Civil Division. The claimants appealed.

They contended that the secretary of state’s reasons had been legally irrelevant. That was because she had not been entitled to have regard at all to the potential reaction of a foreign state which did not share the values embodied by the Convention and had no respect for the right of free speech or other democratic values (the first submission). In addition, they substantially repeated the grounds which had been relied on in the courts below.

The appeal would be dismissed (Lord Kerr dissenting in part).

(1) (Lord Kerr agreeing) When the question arose whether a person’s presence or activities in the UK was conducive to the public good, it was self-evident that its potential consequences were a relevant consideration. Indeed, they would usually be the only relevant consideration. A threat to British persons or interests was one potential consequence.

The existence and gravity of the threat was a question of fact. It could not rationally be regarded as any less relevant to the public good because it emanated from a foreign state as opposed to some other actor, or because that state did not share UK values, or because the threat was to do things which would be unlawful by UK laws or improper by UK standards, or indeed by theirs.

Article 10 of the Convention did not only protect the transmission of information and ideas which accorded with the views of the secretary of state or with her perception of the existing values of UK society. The question whether the visitor’s presence or activities in the UK was conducive to the public good had to depend on its effects, and not on whether his or her opinions commanded general or ministerial assent (see [15], [17], [63], [144] of the judgment).

The difficulty about the claimants’ first submission was that it involved treating as legally irrelevant something which was plainly factually relevant to a question which was ultimately one of fact. The claimants’ argument would be rejected (see [15], [18], [63], [144] of the judgment).

Secretary of State for the Home Dept v Rehman [2002] 1 All ER 122 considered.

(2) The court had absolutely no evidential basis and no expertise with which to substitute its own assessment of the risks to national security, public safety and the rights of others for that of the foreign office. It had only the material and the expertise to assess whether the secretary of state had set about her task rationally, by reference to relevant matters and on the correct legal principle.

Beyond that, in a case like the present one, the court would be substituting its own decision for that of the constitutional decision-maker without any proper ground for rejecting what she had done. All the recent jurisprudence of the court had rejected that as an inappropriate exercise for a court of review, even where Convention rights were engaged. The decision had called for an experienced judgment of the climate of opinion in Iran, both inside and outside that country’s public institutions.

The consequences of a failure to engage with such a complex and unstable society were sufficiently serious to warrant a precautionary approach. It was the proper function of a professional diplomatic service to assess those matters as best they could. It followed that the only reasonable course which the secretary of state could have taken had been to draw on the expertise of the foreign office.

Having received what had been, on the face of it, a reasoned professional assessment of the consequences of admitting MR, it was difficult to see how she could rationally have rejected it. For the court to reject the foreign office assessment in favour of a more optimistic assessment of its own would not only usurp the proper function of the secretary of state. It would be contrary to long-established principle which the court had repeatedly and recently reaffirmed.

It would step beyond the proper function of a court of review, and it would involve rejecting by far the strongest and best qualified evidence before it. It would be a wholly inappropriate course for the court to take (see [46], [49], [58], [70], [72], [75], [82], [105], [111], [117] of the judgment).

A v Secretary of State for the Home Department; X v Secretary of State for the Home Department [2005] 3 All ER 169 considered; R (on the application of Al Rawi) v Secretary of State for Foreign and Commonwealth Affairs [2006] All ER (D) 138 (Oct) considered; Bank Mellat v Her Majesty’s Treasury [2013] 4 All ER 533 considered; R (on the application of Miranda) v Secretary of State for the Home Department [2014] 3 All ER 447 considered.

Decision of Court of Appeal [2013] All ER (D) 224 (Mar) affirmed.

Lord Pannick QC and Harry Adamson (instructed by Mishcon de Reya) for the claimants. James Eadie QC and Robert Palmer (instructed by the Treasury Solicitor) for the secretary of state.