The limited human right to do business

1 September 2010 by

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:

Sign up to free human rights updates by email, Facebook, Twitter or RSS

Welcome to the UKHRB

This blog is run by 1 Crown Office Row barristers' chambers. Subscribe for free updates here. The blog's editorial team is:
Commissioning Editor: Jonathan Metzer
Editorial Team: Rosalind English
Angus McCullough QC David Hart QC
Martin Downs
Jim Duffy

Free email updates

Enter your email address to subscribe to this blog for free and receive weekly notifications of new posts by email.




Aarhus Abortion Abu Qatada Abuse Access to justice adoption AI air pollution air travel ALBA Allergy Al Qaeda Amnesty International animal rights Animals Anne Sacoolas anonymity Article 1 Protocol 1 Article 2 article 3 Article 4 article 5 Article 6 Article 8 Article 9 article 10 Article 11 article 13 Article 14 article 263 TFEU Artificial Intelligence Asbestos Assange assisted suicide asylum asylum seekers Australia autism badgers benefits Bill of Rights biotechnology blogging Bloody Sunday brexit Bribery British Waterways Board care homes Catholic Church Catholicism Chagos Islanders Charter of Fundamental Rights child protection Children children's rights China christianity citizenship civil liberties campaigners civil partnerships climate change clinical negligence closed material procedure Coercion Commission on a Bill of Rights common law communications competition confidentiality consent conservation constitution contact order contact tracing contempt of court Control orders Copyright coronavirus coronavirus act 2020 costs costs budgets Court of Protection covid crime criminal law Cybersecurity Damages data protection death penalty defamation DEFRA deportation deprivation of liberty derogations Detention Dignitas diplomacy diplomatic relations disability disclosure Discrimination disease divorce DNA domestic violence duty of care ECHR ECtHR Education election Employment Environment Equality Act Equality Act 2010 Ethiopia EU EU Charter of Fundamental Rights EU costs EU law European Convention on Human Rights European Court of Human Rights European Court of Justice evidence extradition extraordinary rendition Facebook Facial Recognition Family Fatal Accidents Fertility FGM Finance foreign criminals foreign office foreign policy France freedom of assembly Freedom of Expression freedom of information freedom of speech Gay marriage gay rights Gaza Gender genetics Germany Google Grenfell Gun Control hague convention Harry Dunn Health HIV home office Housing HRLA human rights Human Rights Act human rights news Human Rights Watch Huntington's Disease immigration India Indonesia injunction Inquests insurance international law internet inuit Iran Iraq Ireland islam Israel Italy IVF ivory ban Japan joint enterprise judaism judicial review Judicial Review reform Julian Assange jury trial JUSTICE Justice and Security Bill Law Pod UK legal aid legal aid cuts Leveson Inquiry lgbtq liability Libel Liberty Libya lisbon treaty Lithuania local authorities marriage Media and Censorship mental capacity Mental Capacity Act Mental Health military Ministry of Justice modern slavery morocco murder music Muslim nationality national security naturism neuroscience NHS Northern Ireland nuclear challenges nuisance Obituary ouster clauses parental rights parliamentary expenses scandal patents Pensions Personal Injury physician assisted death Piracy Plagiarism planning planning system Poland Police Politics Pope press prison Prisoners prisoner votes Prisons privacy procurement Professional Discipline Property proportionality prosecutions prostituton Protection of Freedoms Bill Protest Public/Private public access public authorities public inquiries quarantine Radicalisation refugee rehabilitation Reith Lectures Religion RightsInfo right to die right to family life Right to Privacy right to swim riots Roma Romania round-up Round Up Royals Russia saudi arabia Scotland secrecy secret justice Secret trials sexual offence shamima begum Sikhism Smoking social media social workers South Africa Spain special advocates Sports Standing starvation statelessness stem cells stop and search Strasbourg super injunctions Supreme Court Supreme Court of Canada surrogacy surveillance sweatshops Syria Tax technology Terrorism The Round Up tort Torture travel treason treaty accession trial by jury TTIP Turkey Twitter UK Ukraine universal credit universal jurisdiction unlawful detention USA US Supreme Court vicarious liability Wales War Crimes Wars Weekly Round-up Welfare Western Sahara Whistleblowing Wikileaks wildlife wind farms WomenInLaw Worboys wrongful birth YearInReview Zimbabwe


This blog is maintained for information purposes only. It is not intended to be a source of legal advice and must not be relied upon as such. Blog posts reflect the views and opinions of their individual authors, not of chambers as a whole.

Our privacy policy can be found on our ‘subscribe’ page or by clicking here.

%d bloggers like this: