R (Lord Carlile of Berriew) v Secretary of State for the Home Department

The Supreme Court rejected the claimants' challenge to the Home Secretary's decision to maintain an exclusion order against Mrs Maryam Rajavi. The court held that article 10 ECHR (freedom of expression) was engaged but that the Home Secretary's assessment that admission would have a significant damaging impact on United Kingdom interests in relation to Iran and might risk the safety of British persons and property abroad was a relevant and weighty consideration. The court applied the structured proportionality test (importance of objective; rational connection; whether less intrusive measures were available; and whether a fair balance had been struck) and concluded that, on the undisputed facts and on the evidence presented (including Foreign Office advice and the account of events in Tehran), the decision to exclude Mrs Rajavi was rational, proportionate and within the range of judgments open to the Home Secretary.

The court also rejected the threshold argument that the executive may not take into account the likely hostile reaction of a foreign state which does not share Convention values. The judges emphasised the limited but real scope for deference to the executive in matters of foreign policy and national security while reaffirming that courts must assess proportionality and the weight of the Convention right objectively.

The claimants were a cross-party group of United Kingdom Parliamentarians and Mrs Maryam Rajavi, who sought judicial review of the Home Secretary's refusal to lift an exclusion order preventing Mrs Rajavi entering the United Kingdom to address meetings in the Palace of Westminster. The exclusion rested on the view, formed with Foreign Office input, that admitting her would be "not conducive to the public good" because it would be perceived in Iran as a hostile political act, would damage UK-Iran relations (including on nuclear non-proliferation and human-rights co-operation) and could risk reprisals against British persons, locally engaged embassy staff and property.

Procedural history: the claim succeeded in neither the Divisional Court ([2012] EWHC 617 (Admin)) nor the Court of Appeal ([2013] EWCA Civ 199). The case reached the Supreme Court on appeal.

Nature of the claim and relief sought: judicial review under the Human Rights Act 1998 alleging unjustified interference with article 10 ECHR rights; the claimants sought to quash the exclusion decision.

Issues before the court:

• whether article 10 was engaged;
• whether it was lawful for the Secretary of State to take into account the likely adverse reaction of a foreign state that did not share Convention values;
• whether the exclusion was proportionate under the fourfold proportionality analysis (importance of objective; rational connection; less intrusive alternatives; fair balance) and how much weight the courts should give to executive assessments in foreign policy and national security matters.

Court's reasoning: the court accepted that article 10 was engaged. It rejected the submission that the reaction of an undemocratic foreign state was legally irrelevant; the anticipated reaction was a relevant factual consideration. The court applied the established proportionality framework (drawing on authorities such as Bank Mellat and Rehman) and emphasised that, while the judiciary must decide proportionality and the weight to be attached to Convention rights, deference to the executive's assessments is appropriate where those assessments concern foreign relations, national security or matters requiring specialised knowledge. On the undisputed evidence (including Foreign Office witness statements and the events in Tehran in November 2011), the majority concluded that the Home Secretary's decision fell within the range of reasonable judgments and was proportionate. A minority (Lord Kerr) would have allowed the appeal, taking a stricter view of proportionality in light of the special weight of political speech and the uncertainty or irrationality of the predicted foreign reaction.

Wider context: the court discussed the boundary between judicial review and political judgment in foreign affairs, reaffirming that although courts must give effect to Convention rights, they should afford substantial weight to executive assessments in matters of foreign policy and national security while retaining the duty to assess proportionality objectively.

Appeal dismissed. The majority held that article 10 was engaged but the Home Secretary rationally and proportionately balanced the claimants’ free expression rights against the assessed risks to United Kingdom interests and the safety of persons abroad; the anticipated hostile reaction from Iran was a legally relevant factual consideration and the decision fell within the range of judgment legitimately open to the executive.

On appeal from the Court of Appeal [2013] EWCA Civ 199; earlier considered in the Divisional Court R (Lord Carlile of Berriew QC) v Secretary of State for the Home Department [2012] EWHC 617 (Admin).