Geller & Anor, R (on the application of) v The Secretary of State for the Home Department

A publicly expressed policy identifying behaviours relevant to an existing discretionary power to exclude is guidance, not an amendment to the Immigration Rules. It need not be laid under section 3(2) of the Immigration Act 1971 unless it imposes a requirement or qualification for entry.

The power to exclude where presence is not conducive to the public good is not confined to cases where the entrant intends violence or where violence is imminent in a narrow sense. The decision-maker may assess the foreseeable effects of the person's presence, including third-party disorder.

Article 10 may be engaged by exclusion of an alien abroad. A court must scrutinise proportionality intensely while giving special weight to a Home Secretary's predictive public-order assessment.

Two US nationals, Pamela Geller and Robert Spencer, intended to visit the United Kingdom in the aftermath of the murder of Drummer Lee Rigby and to attend or address an English Defence League rally. On 25 June 2013 the Home Secretary personally directed their exclusion under the prerogative and paragraph 320(6) of the Immigration Rules, concluding that their presence would not be conducive to the public good.

Permission for judicial review was refused on paper and, on renewal, by the Upper Tribunal. The applicants challenged the policy under section 3(2) of the Immigration Act 1971, its certainty, and the compatibility of the decisions with Articles 10, 11 and 14. The central issue was whether the proposed judicial review was sufficiently arguable to proceed.

1. Disposition. The Court of Appeal unanimously dismissed the appeal and upheld the Upper Tribunal's refusal of permission to apply for judicial review.
2. Statutory publication. Section 3(2) of the Immigration Act 1971 applies to requirements which a migrant must satisfy as a condition of leave. Following R (Alvi) v Secretary of State for the Home Department [2012] 1 WLR 2208, guidance which does not impose such a condition is not itself an Immigration Rule. The unacceptable behaviours list merely stated government policy about the exercise of the existing discretion in paragraph 320(6) of the Immigration Rules. It was indicative, not exhaustive, and did not require parliamentary laying.
3. Certainty. Paragraph 320(6) supplied the discretion and the policy identified relevant behaviours with sufficient clarity. The Court followed the assessment in Naik v Secretary of State for the Home Department [2011] EWCA Civ 1546. Nicklinson [2014] 3 WLR 200 did not assist the applicants in the different context of this policy.
4. Effects and imminence. The exclusion power was not confined to cases involving an imminent threat of violence in a narrow sense, nor did it depend on the applicants' intention to incite violence. The Secretary of State could consider the foreseeable effects of their presence, including possible third-party violence, as explained in R (on the application of Lord Carlile of Berriew QC and others) v Secretary of State for the Home Department [2014] UKSC 60. R (Laporte) v Chief Constable of Gloucestershire [2007] 2 A.C. 105 concerned materially different police powers and circumstances.
5. Proportionality. Article 10 was engaged notwithstanding that the applicants were aliens outside the jurisdiction. The restriction had to be prescribed by law, necessary in a democratic society and directed to a legitimate end. The court had to apply intense scrutiny but give special weight to the Home Secretary's assessment because of her institutional competence and political accountability, particularly in a predictive public-order case. The decision lay within the permissible range of judgments.
6. The police had considered their responsibilities to contain disorder but advised, in light of recent experience and heightened community tensions, that their powers might be inadequate to safeguard public order. Exclusion could therefore be a proportionate response; the Home Secretary was not required to adopt alternative measures or await an imminent breach of the peace.
7. Article 11 added nothing. Its territorial applicability under Article 1 was left undecided, and any interference with peaceful assembly would have been justified for the same reasons as the Article 10 interference. Article 14 was parasitic on Articles 10 and 11, and there was no evidential basis for alleging differential treatment of comparable UK or EU nationals.
8. Although the arguability threshold for permission was low, the proposed claim had no prospect of success and there was no compelling reason to permit a full hearing merely because basic freedoms were engaged.

• Court of Appeal (Civil Division): Moses LJ granted permission to appeal. The court dismissed the appeal and upheld the refusal of permission to apply for judicial review: [2015] EWCA Civ 45.
• Upper Tribunal (Immigration and Asylum Chamber): Foskett J and UTJ Allen refused permission to apply for judicial review on the renewed oral application and refused permission to appeal. Permission had previously been refused on paper by the Vice President.