The limited human right to do business

1 September 2010 by Isabel McArdle

Prashant Modi v United Kingdom Border Agency [2010] EWHC 1996 – Read judgment

Mr Justice Burnett in the High Court has found that there was no breach of a man’s right to respect for private and family life (Article 8 of the European Convention on Human Rights) when he was refused entry to the UK for business purposes after conviction for a sexual offence. This interesting decision highlights the very limited nature of protection that Article 8 may give  in relation to business activities.

Mr Modi was an Indian businessman who was given multi-visit entry clearance for the UK in 2005. He regularly made business trips to the UK following this. In 2006 he committed a serious sexual offence in the UK and pleaded guilty to the charge. The Judge of the criminal court considered that the Appellant did not pose a serious risk to the public after the commission of the offence and made no recommendation for deportation.

In July 2009 the Appellant had sought leave to enter the UK. This was refused by an immigration official on the ground that his entry to the UK would not be conducive to the public good. The Appellant brought a claim before an Asylum and Immigration Tribunal (“AIT”) to have his multi-visit clearance restored. This was successful, on the basis that the Immigration Judge did not consider it to be required by the public interest for entry to be refused. The claim also included the allegation that Article 8 was breached by the refusal of entry. This was dismissed by the Immigration Judge.

The Appellant then issued proceedings in the High Court for a declaration that his Article 8 right and Article 1 of the First Protocol (entitlement to peaceful enjoyment of possessions, “A1P1”)) had been breached. He also sought £50,000 in damages. The UKBA applied to strike out the claim, that is prevent it going to trial on the basis that it had no real prospect of success. The UKBA also argued that it was an abuse of process to bring the claim, as the AIT had already given a decision on Article 8. A Deputy Master granted the strike out and the Appellant appealed.

The Appellant’s Arguments

The Appellant submitted that there had been an unjustifiable interference with his rights under Article 8 and A1P1 when the immigration official refused him entry in July 2009. He argued that damages formed part of the just satisfaction for violation of the rights breached.

The Appellant argued that for the purposes of A1P1, his business interests constituted possessions in the UK; his ability to conduct business in the UK was an element of his private life protected by Article 8; these rights were seriously interfered with by the refusal to grant him leave to enter; the refusal was also not in accordance with the law and was a disproportionate interference with his rights under the two provisions. In reliance upon the authority of Niemietz v Germany (1992) 16 EHRR 97, it was at least arguable that the refusal of leave to enter interfered with Article 8 and the claim had a real prospect of success.

UKBA’s Arguments

UKBA’s main point was that it was not arguable that the decision to refuse entry interfered with Article 8 given that the purpose of entry was solely business related. Although it was accepted that it was arguable that A1P1 had been interfered with, the whole argument was theoretical. The claims relating to both rights were so weak they should not be permitted to proceed.

It was also argued that by attempting to argue the Article 8 point for a second time (the first time being before the AIT), the Appellant was abusing the process of the court. It was a further abuse not to have raised the A1P1 argument before the AIT when it could have been raised.

Having achieved the result of getting multi-visit clearance granted again, the AIT had accorded just satisfaction.

A real prospect of success?

In the context of an application to strike out, showing that a claim has a real prospect of success means showing more than that it is merely arguable. The Appellant’s argument that his private life was interfered with referred to interference in “a very limited sense” (paragraph 32). His inability to meet people in the UK and do face to face business with between July 2009 and February 2010, during the course of  visits which would have lasted a few days, was the full extent of the interference.

The decision in Niemietz was considered, where the European Court of Human Rights found there was interference with the Article 8 right of a lawyer whose office was searched. The Court had been particularly influenced by the type of activity carried out in the office and especially the duty of confidentiality owed by the lawyer to clients whose sensitive documents may be stored there.   Burnett J noted that,

Whilst this case is clear authority for the proposition that activities in the business or professional sphere are not excluded from the protection afforded by article 8 , it is not authority for the converse proposition that business or professional activities are necessarily protected by article 8 (paragraph 36).

He considered that the complaints raised by the Appellant were far removed from those which Article 8 was meant to protect. If the Appellant had developed personal relationships on his business trips to the UK, these would have been purely incidental to the overriding purpose of the trips which was not within the sphere of protection offered by Article 8. The strike out would therefore be granted.

Justification and Proportionality

Burnett J dealt briefly with these matters in case the strike out was appealed. He considered that there was justification for the decision of the immigration officer and it was not disproportionate:

It was a discretionary decision under the rules with the founding premise being a conviction for a serious sexual offence. Whether right or wrong, his decision was capable of relatively rapid review by the AIT with the prospect of the decision being reversed. That review process enables an appellant to place before the AIT all matters considered by the immigration officer and additional material which was not considered by him. As [counsel for UKBA] put it, the system secured Mr Modi’s right to enter the United Kingdom notwithstanding the decision of the immigration officer (paragraph 39)

Further, if interference with Article 8 was proportionate, then A1P1 interference was also proportionate.

Abuse of Process

Burnett J did not consider that there had been an abuse of the court’s process in re-arguing the Article 8 question. Applying the principles laid down in Johnson v Gore Wood & Co (a Firm) [2002] 2 AC 1, he adopted a broad, merits based approach. As the AIT could not order payment of damages or grant a declaration (the types of relief sought in these proceedings),

To hold that the High Court proceedings are an abuse of process would have the effect of denying Mr Modi the opportunity to bring the claim under the Human Rights Act which Parliament had given him. Whilst there may be circumstances where such proceedings might be held an abuse of process I do not consider that to be the case here (paragraph 61).

Consequently, the decision to strike out was upheld.

Read more:

• 31 Aug Do foreign policy and human rights mix?
• Previous posts on immigration
• Value to the community can be taken into account in immigration cases
• Age matters in asylum cases

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