Exclusion of Iranian dissident lawful, says Court of Appeal

22 March 2013 by Rosalind English

R (on the application of) Lord Carlile of Berriew and others v Secretary of State for the Home Department 20 March 2013  [2013] EWCA Civ 199 – read judgment

 Last year the Divisional Court upheld the Home Secretary’s decision to prevent a dissident Iranian politician coming to the United Kingdom to address the Palace of Westminster: see that decision here and my post discussing the “Politics of Fear” here.

In this appeal, the parliamentarians contended that the Divisional Court had failed to consider the proportionality of the exclusion decision with sufficient scrutiny, and, by giving precedence to the possibility of unlawful actions by the Iranian regime, had given inadequate weight to the rule of law. It was perverse, they said, to justify the exclusion decisions by reference to risks to local staff and British government property in Tehran. Furthermore they argued that there had been unfairness in failing to consult the Parliamentary appellants.

Background Facts

The appellant parliamentarians had invited Maryam Rajavi to meet them in the Palace of Westminster to discuss democracy, respect for human rights and other policy issues relating to Iran.The original decision to exclude Rajavi was made in 1997, but further decisions were made in 2011 and 2012 after a downturn in diplomatic relations between Iran and the UK.  The secretary of state refused her entry into the UK on the ground that it would not be conducive to the public good, citing a risk of unlawful reprisals by the Iranian government. She reached this decision after concluding Rajavi was a de facto leader of an organisation that advocated the overthrow of the regime in Iran. The Home Office determined that lifting her exclusion would damage UK interests in Iran and endanger the security of British officials overseas.

The court below rejected the parliamentarians’ argument that the exclusion decisions violated their right of freedom of speech guaranteed by Article 10 of the Convention on Human Rights. Stanley Burnton LJ held that the court was not permitted to substitute its own views for those of the secretary of state, even though he doubted whether the decision to exclude Rajavi would influence the Iranian government’s atomic weapons policy. He therefore concluded that the secretary of state had established that Rajavi’s exclusion was a proportionate and justified measure for the purposes of Article 10(2).

The appellants contended that  (1) the Divisional Court abdicated their role by accepting  that they were not in a position to disagree with the risk to local staff; (2) that it was contrary to the rule of law to capitulate to potential threats of unlawful reprisals and to allow those risks to be used to justify interference with human rights; and (3) it was perverse to allow the possible risks to local staff to take precedence.

The Court of Appeal dismissed the appeal and upheld the Divisional Court’s ruling.

Reasoning behind the judgment

Arden LJ helpfully summarises her reasons at the outset of the judgement (para 7):

1. The Divisional Court had to balance the value of the appellants’ article 10 right against the interests of national security and foreign policy on which the Secretary of State relied.
2. The value of the Parliamentary appellants’ exercise of their article 10 rights in this case is exceptionally high.
3.  The Divisional Court had to ask whether the interference with the Parliamentary appellants’ rights was no more than necessary to achieve the Secretary of State’s objectives. In the context of national security and foreign policy, this is achieved as the Divisional Court held by a review of the Secretary of State’s decisions for rationality, legality and procedural irregularity, not by the substitution by the court of its own judgment on the merits.
4. The Divisional Court’s assessment of the decisions on these grounds cannot be faulted.
5. It therefore cannot be said that the Divisional Court abdicated its judicial function.
6. Nor can it be said that the decisions gave inadequate weight to the rule of law.
7.  There was no unfairness in failing to consult the Parliamentary appellants.
8.  The same conclusions would apply to any Convention right which Mrs Rajavi may have.

The principle that, in matters of foreign policy and security, the court should not substitute its judgment for that of the secretary of state was well established outside the field of proportionality. That principle was held in  Naik  to be applicable to the issue of proportionality in the context of immigration control where an exclusion decision was challenged on the basis of Article 10.  The Court reminded itself of one of the main principles reiterated by Gross LJ:

the State has the right to control the entry of non-nationals into its territory. This is hornbook law and requires no elaboration.

…decisions of the SSHD to refuse entry to this country to an alien on national security or public order grounds are entitled to great weight and must, by their nature, enjoy a wide margin of appreciation (or discretion). ( R(on the application of Naik) v Secretary of State for the Home Department [2011] EWCA Civ 1546)

The same reasoning had to apply to questions of foreign policy and security. Thus, the Divisional Court’s decision that it could not gainsay the conclusion of the secretary of state with regard to the risk to local staff, despite its view that Rajavi’s exclusion would not affect Iran’s decision to pursue atomic tests, was in accordance with legal principle. The secretary of state was entitled to have regard to the welfare of the local staff and to the protection of British property in Iran.

Once the court was satisfied that a decision was within a range of decisions that could properly be made, the proportionality test did not require it to be satisfied that the decision was correct. For the instant court to conclude that those concerns were irrational would clearly involve substituting its own judgment for that of the secretary of state on the risk of retaliation by a regime that had in the past been prepared to sanction unlawful reprisals. There was nothing to suggest that the appellants’ knowledge and experience on those matters was superior to that of the secretary of state.

McCombe LJ, agreeing with the main judgment, took polite issue with Arden LJ’s suggestion (at para 7(ii)) that “The value of the Parliamentary appellants’ Article 10 rights is particularly high” . It was not clear that, in principle, the right to freedom of expression of parliamentarians was of more “value” than the rights of other persons:

All persons have the same vitally protected rights under the Convention and, for my part, I would not wish to afford higher “value” to the rights of one class of person in this area than to any other. (paras 106-107).

Related posts:

• Appeasement it may be, but exclusion of Iranian dissident not a matter for the courts
• The right to receive information: journalists and inquiries
• Dr Naik, hate speech and the principle of legitimate expectation