Lord Carlile & Ors v Secretary of State for the Home Department

Where exclusion from the United Kingdom engages Article 10 rights, the Secretary of State must show convincingly that exclusion is necessary in a democratic society and proportionate to a legitimate aim. The rights of those wishing to receive information are engaged as well as those of the excluded speaker. Where Parliamentarians seek to meet a prominent political dissident, particularly strong justification is required. The court must conduct intensive review of legality, rationality, procedural regularity and proportionality, but must not substitute its assessment for the Secretary of State’s judgment on foreign-policy and security risks. A credible risk of retaliation against British interests or locally engaged embassy staff may justify exclusion, even where the anticipated foreign conduct would itself be irrational or unlawful.

The claimants, including Parliamentarians and Maryam Rajavi, sought judicial review of decisions by the Secretary of State excluding Mrs Rajavi from the United Kingdom. They wished to meet her at an invitation-only event in the Palace of Westminster concerning democracy, human rights and Iran. The exclusion was maintained on the basis that her admission would damage United Kingdom interests in relation to Iran and create risks to British personnel, property and wider security.

The claimants relied principally on common-law and Article 10 freedom of expression rights, including the Parliamentarians’ right to receive information, and also raised Articles 8 and 9 and a failure to consult. The central issue was whether the Secretary of State had established convincingly that continued exclusion was necessary and proportionate.

1. The claim was dismissed. The Secretary of State’s decisions were lawful, and the consultation challenge could not succeed. The Secretary of State had considered the representations and evidence that consultation would have elicited, so remitting the matter for consultation would have served no useful purpose.
2. Article 10 was engaged. It protected both Mrs Rajavi’s ability to impart information and the Parliamentarians’ ability to receive it. A meeting in person had practical and symbolic value which could not be treated as equivalent to a video link. Because the rights were exercised by members of the legislature seeking information on matters of national and international importance, any restriction required particularly strong justification.
3. The applicable approach required the State to establish convincingly that the restriction was necessary in a democratic society. The court applied intensive review, including legality, rationality, procedural regularity and proportionality, while recognising that the Secretary of State retained the decision-making function and a wide margin in matters of national security, public order and foreign relations.
4. The court accepted that it could not sensibly determine disputed assessments such as Mrs Rajavi’s level of support in Iran. The relevant risk was retaliation by Iran against locally engaged embassy staff, British citizens or British interests. The withdrawal of embassy staff, the prior arrest of local employees and the attack on the British Embassy made that risk credible. The fact that retaliation would be irrational or unlawful did not make it unreal.
5. The Secretary of State had therefore established that continued exclusion was proportionate and justified under Article 10(2). Article 8 was not materially engaged; in any event, a restriction justified under Article 10 would not be disproportionate under Article 8. The claim was dismissed.

First-instance judicial review proceedings in the High Court (Administrative Court). No prior or subsequent appellate decision is stated in the judgment.