Berriew & Ors, R (on the application of) v Secretary of State for the Home Department

Article 10 proportionality requires the court to balance the value of the particular exercise of expression against the community interests relied on to justify interference, while maintaining a fair balance.

In exclusion cases involving national security and foreign affairs, the executive retains a wide margin of judgment. The court must conduct intensive review of legality, rationality, procedural regularity and proportionality, but must not substitute its assessment of risk for that of the Secretary of State. The court may consider risks to overseas staff and property and need not insist on the least intrusive measure in every case. A process-focused review is not judicial surrender.

Parliamentary appellants sought to invite Mrs Maryam Rajavi, an Iranian opposition politician resident in Paris, to address meetings in the Palace of Westminster. The Secretary of State excluded her on the ground that her presence would not be conducive to the public good, relying principally on foreign-policy and security risks, including possible Iranian reprisals against British interests and locally engaged embassy staff.

The Divisional Court rejected the judicial-review challenge and held that the exclusion was justified under Article 10(2) of the Convention: [2012] EWHC 617 (Admin). The central issue on appeal was whether the interference with the appellants’ Article 10 rights required a more intensive merits review, and whether the decision-making process was unlawful or unfair.

Appeal dismissed. Arden LJ gave the leading judgment. Patten LJ agreed with the reasons of Arden LJ, McCombe LJ and the Divisional Court. McCombe LJ agreed with the result and reasoning but qualified the assessment of the value of parliamentarians’ Article 10 rights.

1. Proportionality. Article 10 of the European Convention on Human Rights required the court to balance the value of the particular exercise of expression against the community interests relied on by the Secretary of State. The Parliamentary appellants’ proposed discussion of Iranian affairs in Parliament had exceptionally high value, although McCombe LJ did not accept that parliamentarians’ Convention rights had a higher intrinsic value than those of other persons.
2. Intensity of review. In matters of foreign policy and national security, the Secretary of State’s decision was entitled to great weight and a wide margin of judgment. The court remained responsible for reviewing rationality, legality, procedural regularity and proportionality, but the decision-maker on the merits remained the Secretary of State. The approach was consistent with R (o/a Naik) v Home Secretary [2011] EWCA Civ 1546.
3. Application. Proportionality did not require the court to decide that the Secretary of State’s assessment was correct once it fell within the range of decisions properly open to her. The Secretary of State was entitled to consider risks to locally engaged staff, British property in Tehran and wider British interests in the region. The appellants’ competing assessment did not establish irrationality.
4. Procedure and rule of law. The process required intense scrutiny, but an earlier failure to consult did not undermine the later decision, which had been made after considering the appellants’ case. Reliance on the possibility of unlawful Iranian reprisals was not automatically contrary to the rule of law. The greater the risk of executive capitulation to unlawful pressure, the more demanding the process review should be.
5. Subsidiary matters. The court left unresolved the wider question of Convention jurisdiction over a person outside the United Kingdom, proceeding on the assumption that Mrs Rajavi had an Article 10 right. An exclusion decision was not itself an immigration decision under section 82 of the Nationality, Immigration and Asylum Act 2002, although a resulting refusal of entry would be appealable. The Article 8, 9 and 11 complaints did not alter the justification analysis, and no issue of parliamentary privilege was established.

1. Court of Appeal (Civil Division) — The appeal was dismissed. The court upheld the Divisional Court’s conclusion that the exclusion decisions were justified and proportionate.
2. High Court of Justice, Queen’s Bench Division, Divisional Court — Stanley Burnton LJ, with Underhill J agreeing, rejected the challenge to the exclusion decisions and held the interference justified under Article 10(2): [2012] EWHC 617 (Admin).