R v Secretary of State for the Home Department, ex parte Louis Farrakhan
CA (Lord Phillips MR, Potter LJ, Arden LJ) 30/4/2002  2 WLR 481
The Home Secretary's refusal to lift the exclusion order on Louis Farrakhan struck a proportionate balance between the aim of prevention of disorder and freedom of expression under Article 10.
The Secretary of State for the Home Department's refusal to relax the exclusion order on the black Muslim leader Louis Farrakhan struck a proportionate balance between the legitimate aim of the prevention of disorder and freedom of expression, to the extent to which that was in play on the facts of this case.
The right under international law of a state to control the entry of non-nationals into its territory was one that was recognised by the Strasbourg court. Where entry was refused or an alien was expelled for reasons that were wholly independent of the exercise by the alien of Convention rights, the fact that this carried the consequence that he could not exercise those rights in the territory from which he was excluded would not constitute a violation of the Convention. In exceptional circumstances the obligation to protect Convention rights could override the right of a state to control the entry into its territory or presence within its territory of aliens. This was clear from the cases involving Article 8.
Where the authorities of a state refused entry or expelled an alien from its territory solely for the purpose of preventing the alien from exercising a Convention right within the territory, or by way of sanction for the exercise of a Convention right, the Convention would be directly engaged. This proposition was implicit in the observations of the Commission in Agee v UK Decisions and Reports 7, pp 164, 174 and Swami Omkarananda and Divine Light Zentrum v Switzerland (1997) 25 D & R 105 and was expressly supported by the decision of the Court in Piermont v France (1995) 20 EHRR 301 and by the reasoning of the Commission in Adams & Benn v UK (1997) 88A D & R 137. Thus, where the authorities of a state refused entry to an alien solely to prevent his expressing opinions within its territory, Article 10 would be engaged. In such a situation the application of the provisions of Article 10(2) would determine whether or not the interference with the alien's freedom of expression was justified.
Article 10 was engaged in this case because the secretary of state did not exclude F simply because he held views that would be offensive to many but because of the effect that he considered his admission would have on community relations and the risk that meetings attended by him would be occasions for disorder. To this extent, one object of his exclusion could be said to have been to prevent him exercising the right of freedom of expression in this country. However, the secretary of state was right to balance freedom of speech against the risk of disorder, as the prevention of disorder was a legitimate justification under Article 10(2) to restrict freedom of expression. The application of the test of proportionality to judicial review was as outlined in R v Secretary of State for the Home Department, ex parte Daly (2001) 2 WLR 1622. The margin of appreciation or discretion accorded to the decision maker was all important, for it was only by recognising the margin of discretion that the court avoided substituting its own decision for that of the decision maker.
There were several factors in this case that made it appropriate to accord a particularly wide margin of discretion to the secretary of state. First, the case concerned an immigration decision. The Strasbourg court attached considerable weight to the right under international law of a state to control immigration into its territory. The weight this carried in this case was the greater because the secretary of state was not motivated by a wish to prevent F from expressing his view, but by concern for public order within the UK. Second, the decision was the personal decision of the secretary of state, taken after detailed consideration involving widespread consultation. Third, the secretary of state was far better placed to reach an informed decision as to the likely consequences of admitting F to this country than the court. Fourth, the secretary of state was democratically accountable for this decision. There was no right of appeal under s.60(9) Immigration and Asylum Act 1999 where he had certified that he had personally directed the exclusion of a person on the ground that this was conducive to the public good. The effect of the legislative scheme was legitimately to require the court to confer a wide margin of discretion upon the secretary of state. The judge had replaced his own evaluation of the relevant facts for that of the secretary of state. The secretary of state provided sufficient explanation for a decision that turned on his personal, informed assessment of risk to demonstrate that his decision did not involve a disproportionate interference with freedom of expression. His decision struck a proportionate balance between the legitimate aim of the prevention of disorder and freedom of expression, to the extent to which that was in play on the facts of this case.
QBD Administrative Court (Turner J) 1/10/2001
This was an application by the claimant for judicial review of the Home Secretary's decision dated 20 November 2000 by which an order of exclusion from the United Kingdom, originally made in 1986, was maintained. The claimant was a black Muslim whose followers in the UK were the Nation of Islam group. the claimant in the past had been very critical of Jews in the US. For this reason the Home Secretary concluded that the claimant's presence in the UK would not be conducive to the public good and that he posed a threat to public order or was likely to commit criminal offences under the racial hatred provisions of the Public Order Act 1986.
The claimant maintained that these conclusions were a disproportionate interference with the claimant's right to impart, and of the black community to receive, information from an international leader as the basis for debate on a range of important and contemporary issues under Article 10 of the European Convention on Human Rights. The Home Secretary submitted that the real question for decision was as to the clash between the claimant's right to free speech, and that of his followers to receive his comments, and the Home Secretary's proper concerns about damage to community relations and the risk of resulting public disorder. Consonant with the acceptance of the breadth of the Home Secretary's broad discretionary area of judgment there was no proper basis for the court to exercise its supervisory jurisdiction. The court should hesitate before preferring its opinion to that of the elected and experienced Home Secretary.
Application upheld. The margin of appreciation available to the Home Secretary did not mean that the domestic court was in any way inhibited from embarking on a review of the reasons provided and of the underlying circumstances in order to determine whether or not the Home Secretary had failed to take into account relevant or taken into account irrelevant factors or had otherwise reached a conclusion
that was not open to a reasonable decision taker.
In the absence of adequate reasons the court was entitled to reach the conclusion that there were none that would support the conclusion reached, or decision made, as being properly within the "discretionary area of judgment". There was a complete absence of evidence before the court of racial, religious or ethnic tension between the black Muslim and Jewish communities in the UK existing at the date of the decision letter.
The court observed that it had no views on the benefits or otherwise of the claimant's entry to the UK or the validity or purpose of his message. This decision related only to the circumstances that obtained on the date upon which the decision of the court was pronounced. Nothing in these reasons could prejudge what decision might have been taken if other domestic political or international circumstances had been present at that date.
COMMENT (October 7 2001)
There are four points to comment on. First, the question of reasons. Secondly, the margin of discretion of the Home Secretary to determine who should be prevented from entering this country. Third, the potential abuse of Article 10, and five, the interesting and little used Article 16 which may prove very useful in present circumstances.
1) First, this matter of sufficient reasons. The decision that the claimant should be excluded was rejected by the court because "there was a complete absence of evidence before the court of racial, religious or ethnic tension between the black Muslim and Jewish communities in the UK existing at the date of the decision letter." The decision letter was, it will be remembered, signed on the 20th of November, 2000. The situation on the ground that may have existed at that date has, for obvious reasons, radically changed, and since the imposition of these exclusion orders are predicated on future rather than past events it seems surprising in the least that the judge could say that the Home Secretary had failed to establish any "objective justification" for his decision to continue to exclude the claimant from the UK. There were concerns expressed at previous challenges to Mr Farrakhan's continued exclusions that he may commit an offence under the Public Order Act 1986. This Act criminalises the use of threatening, abusive or insulting words or behaviour which is likely to cause public disorder.
Now of course it may be that the claimant in this case intends to stop short of the line of expressly fomenting discord between Muslim and non Muslim groups. But the history of public order provisions shows that the reaction of the general public is as much a factor to be taken into consideration as the proposed actions of the speaker. If the proposed speech is mild as milk, the speakers' rights should not be curtailed because of an aggressive reaction by his audience. But the case law under the Public Order Act and its predecessors shows that if the natural consequence of the assembly taking place is the provocation of violence by others, the speaker must take his audience as he finds them (Jordan v Borgoyne  2 QB 744). This is also the case in Strasbourg: see Jersild v Denmark (1994) 19 19 EHRR 1.
One of the considerations that led to an earlier decision by the Home Secretary to continue the exclusion order was the disturbance caused by the British branch of the Nation of Islam at the Stephen Lawrence Inquiry. The claimant argued that that consideration should now be put behind us and that any effect that he might have on his supporters will be innocuous. That is questionable. However neutral his message, the very knowledge of his past pronouncements is likely to further inflame an already agitated public. This prediction, and consequent exclusion, is surely within the Secretary of State's margin of appreciation.
2) Such discretionary decisions are within the jurisdiction of the Minister, and may be interfered with by the Court only if there is no evidence upon which such a decision is taken, even Anisminic would allow that (Anisminic v Foreign Compensation Commision  2 AC 147). If the only evidence the courts would accept were proof of future behaviour, they are demanding the impossible and completely undermining the Home Secretary's ability to determine who should, and who should not, be allowed to enter the UK to get their political message across.
3) The Secretary of State for the Home Office prayed in aid Article 16 of the Convention. This little-known Article provides that "nothing in Articles 10, 11 and 14 shall be regarded as preventing the High Contracting Parties from imposing restrictions on the political activities of aliens" The Article is included in the Convention Articles annexed to the Human Rights Act and therefore is actionable in domestic law. Although the Strasbourg authorities tried to restrict the scope of this unfashionable provision (see for example Piermont v France (1995) 20 EHRR 301), and there has even been a proposal by the Parliamentary Assembly in Strasbourg to water it down, we may find that its time has come round again. Those advising public authorities should be alert to the potential usefulness of this Article.
4) If the claimant wins on appeal, it will mean that Article 10 will join Articles 2, 3, 8 and 14 as yet another implied asylum or immigration right. This surely cannot have been the consequences intended by the original draftsmen of the Convention; Article 10 is designed to protect the fundamental democratic right of free speech, not to facilitate movement across borders (see Agee v United Kingdom Application No 7729/76).
Rosalind English, 1 Crown Office Row