Sehwerert, R (on the application of) v Entry Clearance Officer & Ors

An immigration rule requiring refusal of entry clearance following a sentence of at least four years does not displace the rule’s express exception where refusal would breach Convention rights. In assessing proportionality under article 10, the court must reach its own view while giving context-sensitive weight to the executive’s assessment.

Political communications between parliamentarians and an invited speaker attract substantial weight. Preventing a face-to-face parliamentary meeting is a real, though limited, interference where other means of communication remain available. A general criminality threshold is not absolute. Its weight is reduced where it was not formulated for the unusual circumstances in issue and there is no identified, case-specific risk. The public interest must nevertheless be balanced against the importance of the protected expression.

The appellant, one of the Cuban Five, had been convicted in the United States and sentenced to 15 years’ imprisonment. Members of Parliament invited him to the Palace of Westminster to discuss the convictions, the continuing concerns about the fairness of the trial, and the position of the other men.

An Entry Clearance Officer refused his application under paragraph 320(2)(b) of the Immigration Rules. The Upper Tribunal refused permission to bring judicial review. The Court of Appeal granted permission to appeal against that order and, by agreement, considered both permission for judicial review and the substantive claim.

The central issue was whether maintaining the refusal disproportionately interfered with the intervening MPs’ article 10 rights to receive and impart information and ideas.

1. Appeal allowed unanimously. The court granted permission to apply for judicial review, retained and determined the substantive claim, and held that the refusal of entry clearance breached article 10.

2. Paragraph 320(2) of the Immigration Rules separates the question whether refusal would contravene the European Convention on Human Rights from the separate question of exceptional circumstances. A Convention breach is an independent reason to grant entry clearance. The four-year sentencing threshold in paragraph 320(2)(b) is therefore a general rule, not an absolute bar.

3. Applying the general approach in R (Lord Carlile of Berriew and Others) v Secretary of State for the Home Department [2014] UKSC 60, the court had to decide proportionality for itself. It had to give appropriate, potentially decisive, weight to the Secretary of State as primary decision-maker. The weight depended on the context and the nature of the assessment.

4. The MPs’ proposed discussion with an invited speaker about matters of political and human-rights concern lay high in the hierarchy of protected expression. Refusal prevented a face-to-face meeting at Parliament and was therefore an interference with their article 10 rights. It was limited because video conferencing and other communication remained possible, but it was not trivial. The evidence showed practical and confidential-discussion drawbacks to those alternatives.

5. The refusal pursued legitimate aims: prevention of crime and disorder, and firm and effective immigration control. Considerable weight attached to the serious conviction, the 15-year sentence, and the policy of transparent and consistent treatment of overseas offending. However, the rule was not devised as a considered response to this unusual situation, so the Secretary of State’s generalised assessment attracted less weight. The proposed visit was for only a few days; there was no risk of overstaying or reoffending; and the MPs sought to discuss genuine concerns about the fairness of the trial that produced the conviction.

6. Those considerations did not sufficiently justify even the limited interference with the MPs’ article 10 rights. The claim for judicial review was allowed.

• Court of Appeal (Civil Division). Allowed the appeal, granted permission for judicial review, retained the claim and held the continuing refusal of entry clearance unlawful under article 10: [2015] EWCA Civ 1141.
• Upper Tribunal (Immigration and Asylum Chamber). Upper Tribunal Judge Jordan refused, on an oral renewal, permission to apply for judicial review of the Entry Clearance Officer’s refusal.