Naik v Secretary of State for the Home Department & Anor

A non-national’s previous visas and admissions do not, without an express assurance or prior substantive consideration of exclusion, create a legitimate expectation of continuing admission. Where exclusion would substantially affect an existing multi-entry visa, fairness generally requires a meaningful opportunity to address the material concerns before the decision. A later reconsideration may cure the procedural defect if it follows substantial representations and gives sufficient reasons. Article 10 may be engaged through the audience’s right to receive information even where the speaker is outside the United Kingdom, but exclusion may be justified where authorised by the Immigration Rules and proportionate to legitimate aims.

The claimant, an Indian national and prominent Muslim speaker, challenged the Secretary of State’s personal decision to exclude him from the United Kingdom, the revocation of his five-year multi-entry visa, and subsequent confirmation of the decision. The challenge alleged legitimate expectation, procedural unfairness, breach of article 10 of the Convention, inadequate reasons, failure to consider relevant matters and irrationality.

The initial exclusion decision was made shortly before planned public appearances in the United Kingdom. The claimant made representations before and after that decision. The central issues were whether his previous visas and visits generated a legitimate expectation, whether he had been given a fair opportunity to answer the case against him, whether article 10 was engaged and, if so, whether the interference was justified and proportionate.

1. Legitimate expectation. The claimant’s previous visas and visits did not establish a substantive legitimate expectation that the Secretary of State had considered and accepted his suitability for admission. The legislation and Immigration Rules did not require substantive consideration of exclusion before entry clearance was granted. No express assurance had been given. Even if an expectation had arisen, the public interest in the Secretary of State’s personal exclusion power and the unacceptable behaviours policy outweighed it.
2. Procedural fairness. A person facing a substantial detriment is ordinarily entitled to make meaningful representations before the adverse decision. The claimant knew the general concerns, but three of the four statements relied on in the 17 June letter had not been put to him. The tight timetable and concern that advance notice might frustrate exclusion did not justify the failure to present the case earlier. The 16 June decision was therefore procedurally unfair.
3. The 9 August reconsideration followed substantial representations and addressed the thrust of the claimant’s case. Although the reasoning was not perfect, the decision was not procedurally unfair and gave sufficient reasons.
4. Article 10. The claimant could not directly invoke article 10 on the basis of his own proposed expression while outside the territorial jurisdiction. However, the rights to impart and receive information are closely connected. The potential audience in the United Kingdom was within the jurisdiction, so article 10 was engaged through its rights.
5. The interference was prescribed by paragraph 320(6) of the Immigration Rules and the published unacceptable behaviours policy. The claimant remained able to communicate through broadcasts and recordings, although he could not appear at public events in the United Kingdom. The interference was proportionate to the legitimate aims pursued.
6. The challenges based on relevant considerations and irrationality failed. The Secretary of State was entitled to regard previous visits as marginal, and the threshold for intervention in this area was very high. The exclusion was lawful.