Lawful for Home Secretary to deport Palestinian activist accused of fostering hatred

6 November 2011 by Matthew Flinn

Raed Mahajna v Secretary of State for the Home Department IA/21/21631/2011 – Read Judgment

1 Crown Office Row’s Neil Sheldon appeared for the Secretary of State in this case. He is not the writer of this post.

The First-Tier Tribunal (Asylum and Immigration Chamber), has upheld the decision of the Home Secretary to deport Raed Mahajna, who had come to the UK to attend a number of meetings and speaking engagements.

Mr. Mahajna  (also known as Raed Saleh) was born in Israel in 1968. He is however of Palestinian origin and has been a vocal critic of the Government of Israel. Aware of his intention to travel to the UK, the Home Secretary issued an exclusion order against him on the basis that he had publicly expressed views that fostered hatred which might lead to inter-community violence in the UK. However, this order was never served upon him, and he entered the UK on 25th June 2011. He was subsequently arrested on 27th June and detained until released on bail on 18th July.

In the meantime, the Home Secretary decided to deport him under section 3(5)(a) of the Immigration Act 1971, which provides that a person who is not a British citizen may be deported if the Secretary of State deems his deportation to be conducive to the public good. It was his appeal of that decision which is the subject of this post.

The hearing of that matter before the Tribunal followed up separate judicial review proceedings in which Mr. Mahajna established that he had been unlawfully detained for a period of 35 hours during which he had not been made aware of the reasons for his arrest. As explained in a previous post on those proceedings, apart from that period of time his detention was held to be lawful.

The law to be applied by the Tribunal in this case was set out in EO (deportation appeals: scope and process) Turkey [2007] UKAIT 00062. In essence, having established that Mr. Mahajna was a person liable to deportation under Immigration Act 1971, it had to consider whether or not the deportation would breach his human rights, and if not, consider Paragraph 364 of the Statement of Changes in Immigration Rules HC 395 as amended, which provides for an appeal against a deportation decision based on the exceptional circumstances of the individual case.

The majority of the Tribual’s determination focuses on an analysis of whether or not Mr. Mahajna’s human rights under the European Convention of Human Rights (ECHR) had been engaged and infringed by the deportation decision. He relied on Articles 8 (the right to respect for the private and family life), 9 (freedom thought, conscience and religion), 10 (freedom of expression) and 11 (freedom of assembly). Unsurprisingly, as the purpose of Mr. Mahajna’s visit to the UK was to speak at a number of engagements, Article 10 was given the most attention.

Freedom of speech

Given the fact that Mr. Mahajna’s deportation would prevent him honouring his intended speaking engagements, it was clear that his article 10 rights were engaged and prima facie (at first sight) interfered with. It was equally clear that the interference was in accordance with the law, and intended to serve the legitimate aim of protecting public safety, and preventing crime and public disorder. The question was whether or not that interference was proportionate.

In answering that question, the Tribunal examined the Home Secretary’s policy to identify the public interest that needed to be taken into the balance. Decisions such as this are taken in accordance with the Home Secretary’s Prevent Strategy, which lists a number of behaviours which might cause the Home Secretary to exercise her power to deport on the basis that it is conducive to the public good:

The list of unacceptable behaviours has also been published, and includes any person who uses any means or medium including writing, producing, publishing or distributing material; public speaking including preaching; and using a position of responsibility such as teacher, community or youth leader to express views which foster hatred which might lead to inter-community violence in the UK.

There then follows a detailed consideration of five items of evidence which the Home Secretary relied upon to demonstrate that the decision to deport was proportionate. They were:

1. A poem written by Mr. Mahajna which appeared to be anti-Semitic.
2. An address which Mr. Mahajna gave in Jerusalem in which he appeared to invoke the Blood Libel (a old accusation that Jews use the blood of children in their religious customs and not, as Sarah Palin might have led some to believe, an accusation that Republicans were responsible for the death of US Congresswoman Gabrielle Giffords).
3. Allegations made by Mr. Mahajna at public gatherings that the Israeli authorities intended to demolish the Al-Aqsa mosque in Jerusalem (Islam’s third holiest site).
4. Two charges relating to disorder Mr. Mahajna was facing in Israel.
5. A case in which Mr. Mahajna had entered into a plea bargain in respect of allegations that he had been using charitable organizations as a front for supporting Hamas, which is a proscribed terrorist organization in England.

The Tribunal decided that, taken in the round, the evidence established that Mr. Mahajna had engaged in the “unacceptable behaviour of fostering hatred which might lead to inter-community violence in the UK”:

We are satisfied that the Appellant’s words and actions tend to be inflammatory, divisive, insulting, and likely to foment tension and radicalism.

Consequently, it said that his words and actions did come within the Prevent Strategy and were thus in accordance with the Secretary of State’s policy, and did justify a conclusion that his removal would be conducive to the public good:

Therefore in the balancing exercise necessary for any consideration of proportionality, great weight must be attached to the public interest of preventing disorder or crime.

On the flip side of this, the content of Mr. Mahajna’s expression was political, which is seen as an inherently valuable form of speech, and in principle attracts greater protection (even when controversial or offensive).

Nevertheless, taking into account the fact that Mr. Mahajna would be able to express his views from abroad (which could still be accessed by UK residents with the use of modern technology), and the fact that there was a margin of discretion to be afforded to the Home Secretary when deciding what actions were in the public interest in these sorts of cases, it concluded that there had been no breach of Article 10.

The remaining human rights claims were swiftly dealt with. The Tribunal held that Mr. Mahajna’s reputation (Article 8), and freedom of thought and assembly had not been sufficiently interfered with to engage those Articles. As no exceptional circumstances had been cited to the Tribunal, it followed that Mr. Mahajna’s appeal had to be dismissed.