R (Farrakhan) v Secretary of State for the Home Department

An immigration decision which prevents an alien from exercising a Convention right does not engage that right where the decision rests on independent immigration grounds. Article 10 is engaged, however, where exclusion is intended wholly or partly to prevent the alien from expressing opinions within the state.

The resulting interference must be proportionate to a legitimate aim. The reviewing court may assess the balance and relative weight assigned to competing interests. It must nevertheless respect an appropriate margin of discretion. That margin may be wide where the decision concerns immigration, public order, ministerial expertise and democratic accountability, and restricts only the forum through which expression may occur.

The Secretary of State personally directed under Immigration Rule 320(6) that Louis Farrakhan, an American religious and political leader, should remain excluded from the United Kingdom. He considered that a visit might damage community relations and act as a catalyst for public disorder. Farrakhan sought judicial review.

Turner J quashed the decision. After reviewing Farrakhan’s proposed visit, undertakings and history, the judge found no more than a nominal risk to community relations and held that the Secretary of State had failed to provide substantial objective justification.

The Secretary of State appealed. The central questions were whether the exclusion engaged article 10 of the Convention, what effect article 16 had, and whether the decision represented a proportionate restriction of freedom of expression.

1. Appeal allowed. Lord Phillips MR delivered the judgment of the Court. The Secretary of State had sufficiently explained his personal assessment that Farrakhan’s presence might act as a catalyst for disorder. The exclusion pursued prevention of disorder, a legitimate aim under article 10(2), and struck a proportionate balance.

2. A state retains the international-law right to control the entry of non-nationals. Exclusion or expulsion for reasons wholly independent of an alien’s exercise of Convention rights does not violate those rights merely because the alien can no longer exercise them in the territory. Exceptionally, Convention obligations may override immigration control.

3. Where entry is refused solely to prevent an alien exercising a Convention right, or as a sanction for exercising it, the Convention is directly engaged. The Secretary of State’s predominant purpose was protection of public order rather than suppression of Farrakhan’s opinions. Nevertheless, article 10 was in play because preventing him from addressing meetings formed part of the exclusion’s purpose.

4. Article 16 did not have direct application. Its wording was consistent with restrictions on an alien’s political activities after admission, rather than exclusion from the country.

5. Review of an interference with a Convention right required proportionality, not merely the inflexible Wednesbury standard. Proportionality could require the court to examine the balance struck and the relative weight assigned to competing interests. Recognition of an appropriate margin of discretion remained essential to prevent the court substituting its own decision.

6. A particularly wide margin was appropriate. The matter concerned immigration and public order; the decision was taken personally after extensive consultation; the Secretary of State was better placed to assess the risk; and he was democratically accountable. Section 60(9) of the Immigration and Asylum Act 1999 reinforced the legislative choice that such a personal decision should carry substantial discretion.

7. The interference with expression was limited. Farrakhan was denied a particular in-person forum but remained free to disseminate his opinions in the United Kingdom by other means. The reviewing judge had placed his own evaluation of the evidence in place of the Minister’s informed assessment. The quashing order was therefore set aside.

• Court of Appeal: Allowed the Secretary of State’s appeal and set aside the order quashing the exclusion decision: [2002] EWCA Civ 606. Leave to appeal to the House of Lords was refused.
• Queen’s Bench Division: Turner J quashed the Secretary of State’s decision after finding that no more than a nominal risk to community relations had been demonstrated. No citation is stated in the judgment.