Naik, R (on the application of) v Secretary of State for the Home Department

A history of entry clearances does not create a substantive legitimate expectation that the Home Secretary will refrain from exercising her personal responsibility to exclude a non-national on public-good or national-security grounds.

Where exclusion engages freedom of expression, the court must subject the decision to careful and intensive review. It must decide whether the reasons are relevant and sufficient and whether the restriction is proportionate, while giving great weight to the responsible Minister’s assessment and avoiding substitution of the court’s own judgment.

Under a lawful policy presuming exclusion for unacceptable behaviour, a prominent speaker may be required to repudiate publicly and specifically earlier extremist statements. General condemnations of terrorism may be insufficient.

The appellant, an Indian Muslim speaker with an extant multiple-entry visa and a substantial following in the United Kingdom, planned several large public events. The Home Secretary excluded him and directed revocation of his visa after concluding that earlier statements justified or glorified terrorism, fostered hatred or were damaging to community relations.

The Administrative Court declared the initial decisions of 16 and 25 June 2010 unlawful for procedural unfairness, but upheld the reconsidered decision of 9 August 2010. The appellant appealed on the grounds of substantive legitimate expectation and infringement of freedom of expression under article 10 of the European Convention on Human Rights.

The central questions were whether the previous grants of entry clearance constrained the Home Secretary’s power, whether article 10 protected a non-national outside the country, and whether the exclusion was a justified and proportionate interference with freedom of expression.

1. Appeal dismissed unanimously. Carnwath LJ, Jackson LJ and Gross LJ agreed that the repeated grant of visas created no substantive legitimate expectation constraining the Home Secretary’s personal exclusion power. Entry clearance did not require prior substantive consideration of exclusion. The Home Secretary’s central constitutional responsibility for national security could not be overridden by a representation or practice concerning an individual entrant.
2. The court did not decide whether a non-national physically outside the United Kingdom could personally invoke article 10 of the European Convention on Human Rights. More recent Strasbourg authority gave persuasive support to a wider approach based on freedom of expression regardless of frontiers. It was sufficient that the appellant’s supporters within the jurisdiction possessed article 10 rights, and the court assumed the appellant’s personal rights in his favour when assessing justification.
3. Where an immigration decision engages article 10, the restriction must be convincingly justified under article 10(2). The court must examine the interference as a whole and determine whether the Minister’s reasons were relevant and sufficient, whether the facts were acceptably assessed and whether the measure was proportionate. Review must be strict and careful because freedom of expression is of special importance. Nevertheless, the court reviews rather than substitutes its own decision. Great weight is due to the Home Secretary’s assessment of national security and public order.
4. The uncontested unacceptable-behaviours policy required three inquiries: whether the person had engaged in listed behaviour; whether any offending views had been clearly and publicly repudiated; and whether exclusion was proportionate to the legitimate aims pursued. The Home Secretary was entitled to find that several statements fell plainly within the policy or were divisive and potentially damaging to community relations.
5. Gross LJ, whose reasoning on article 10 was expressly accepted by Jackson LJ, held that there was an overwhelming case that the statements as a whole engaged the policy. General condemnations of terrorism and lengthy contextual explanations did not demonstrate specific public repudiation. The Home Secretary gave relevant and sufficient reasons, and exclusion as conducive to the public good was proportionate. Carnwath LJ reached the same result, although he regarded the absence of evidence challenging the appellant’s recent record as a serious weakness in the respondent’s case.
6. No order was made concerning the procedurally unfair June decisions. Any remaining remedial issues were left for, or remitted to, the High Court.

1. Court of Appeal (Civil Division): The appeal was dismissed unanimously. The court upheld the 9 August 2010 exclusion decision and made no order concerning the earlier decisions.
2. High Court, Queen’s Bench Division, Administrative Court: Cranston J declared the exclusion decisions of 16 and 25 June 2010 unlawful for procedural unfairness, but upheld the reconsidered decision of 9 August 2010. The finding concerning the earlier decisions was not cross-appealed.