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Updated | Today the UK courts have made two decisions in relation to radical Muslim clerics. The score card reads: Abu Hamza can keep his passport and stay (for now), but Dr Zakir Naik, an Indian preacher who was excluded from the UK by the Home Secretary in June, will remain unwelcome.
The Special Immigration Appeals Commission has ruled that Abu Hamza can keep his UK passport as if a deprivation order were made, he would be made stateless, as he claimed he had already been stripped of his Egyptian citizenship. By section 40 of the British Nationality Act 1981, the Secretary of State cannot make a person stateless. The UK is trying to deport him altogether, but his claim is being heard at the European Court of Human Rights (see our post).
Meanwhile, the High Court has ruled that the exclusion of Dr Zakir Naik, an Indian television preacher and president of the Islamic Research Foundation, was lawful and was a proportionate interference with freedom of expression rights. He was blocked by the Home Secretary from giving a lecture in June as a result of his alleged support for Islamist terrorism, Osama Bin Ladin as well as his comment that Jews are the “staunchest enemy” of Islam. He denies that he supports terrorism.
The High Court rejected his challenge to the exclusion on legitimate expectation, procedural fairness and freedom of expression grounds. The substance of the decision can be found from paragraph 60 onwards. The judgment is wide-ranging and interesting. In respect of the Article 10 argument, the judge held that Dr Naik was himself excluded from protections under the Human Rights Act for territorial reasons, but that his supporters, who would have come to hear him speak, were not (para 79). His supporters’ rights to receive information, a lesser spotted aspect of Article 10, was engaged. The interference with that right was, however, justified. Mr Justice Cranston concluded:
89. In my judgment Dr Naik was not accorded the procedural fairness to which he was entitled prior to the Secretary of State’s decision on 16 June. The decision letter of 17 June reflects that, in that it focuses on the application of the unacceptable behaviours policy to four statements, only one of which was plainly before Dr Naik so that he could address the concern surrounding it and point out, for example, that it pre-dated the events of 9/11. By the time of the further decision of 9 August, however, Dr Naik had had a substantial opportunity to make representations about the basis on which the Secretary of State affirmed his exclusion. That 9 August decision thus survives the procedural fairness challenge. In my view it also survives the other challenges advanced against it, for the reasons I have explained. Dr Naik could not have had a substantive legitimate expectation that he would be permitted to continue to visit this country, and any interference with the article 10 rights of Dr Naik and his potential audience is lawful and proportionate. The result is that the Secretary of State’s exclusion of Dr Naik from the United Kingdom is lawful.
We will cover both cases in more detail next week.
Update, 9 November 2010: The Israeli newspaper Ha’aretz has published an interesting comparison of different international approaches to revocation of citizenship. A new law proposed in Israel will allow for people to be made ‘stateless’, which is not permitted in Europe and indeed is why Abu Hamza’s passport could not be revoked.
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