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

6 November 2011 by

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.

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

Read more

1 comment;


  1. Where would he be deported to?
    Can we deport someone to Palestine which we don’t recognise as a state (yet)?

    When I worked as a lawyer in asylum and immigration law in Germany, I could prevent all deportations of my Palestinian clients with this formalistic argument.
    Another argument was that we cannot physically deport someone to Palestine because Palestine doesn’t have an airport and all surrounding countries would not cooperate.
    It worked. All my previous clients are still in Europe.

Comments are closed.

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.

Subscribe

Categories


Tags


Aarhus Abortion Abu Qatada Abuse Access to justice adoption AI air pollution air travel ALBA Allergy Al Qaeda Amnesty International animal rights Animals 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 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 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 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 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 Professional Discipline Property proportionality prosecutions Protection of Freedoms Bill Protest Public/Private public access public authorities public inquiries quarantine Radicalisation 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 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 Welfare Western Sahara Whistleblowing Wikileaks wildlife wind farms WomenInLaw Worboys wrongful birth YearInReview Zimbabwe

Disclaimer


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: