Naik, R (on the application of) v Secretary of State for the Home Department

Dr Naik is a Muslim speaker of international reputation. The judge summarised his background:

“Dr Zakir Naik is a national of India, born in 1965. He graduated in medicine from the University of Mumbai. Since then he has become a figure of significant influence in the Muslim world, whose public appearances frequently attract crowds of many thousands. Over the past 13 years, Dr Naik has delivered more than 1,300 public addresses around the world. A particular feature of them is the associated question and answer sessions. Over 100 of his talks, dialogues, debates and symposia are available on recordings. Since 2007, he has organised an annual international peace conference in Mumbai, which now attracts over one million people. Dr Naik is the author of books on Islam and comparative religion. He has participated in symposia with leading figures of other faiths. In a list of the top 10 spiritual gurus of India, published in the Indian Express in 2010, Dr Naik was listed first. In an article published in the Sunday Express on 22 February 2010, Dr Naik was ranked 89 in a list of the 100 most powerful Indians of 2010...” (para 2)

He is chairman of the Islamic Research Foundation International ("IRFI"), a charity based in the United Kingdom. He is involved in a number of not-for-profit broadcast companies in the broadcasting field, including Lords Production Inc Ltd, a UK company, which holds the broadcast licence for Peace TV.

He has been a regular visitor to the UK since 1990, and has given many public speeches. Until this year his visas have been renewed without difficulty:-

During all this time, his visits had attracted no special attention from the authorities in London. The Secretary of State had not been involved in the grant of the visas. In December 2008, for the first time, his name was added to the local “alert list” used by the Mumbai High Commission, but there is no extant record of why this was done. No steps were taken in Mumbai or London to revoke the visa.

In 2010 plans were made for major events at the Sheffield Arena, Wembley Arena and the Birmingham National Exhibition Centre in late June. They were expected to attract a total of some 45,000 people. Preparations involved considerable organisation and investment. On 25^th May the Foreign and Commonwealth Office became aware of these planned events and contacted the UKBA Special Cases Directorate, who carried out research into Dr Naik's background and profile. Charles Farr, director general of the Office for Security and Counter Terrorism ("OSCT"), was informed. That office has lead responsibility for the government's "Prevent" Counter Terrorism strategy.

On 30^th May the Sunday Times published an article under the headline “Muslim preacher of hate is let into Britain”. The article described the issue of Dr Naik’s admission as a “political test” for the government. It included quotations from Dr Naik’s speeches (including some later relied on by the Home Secretary). It referred to reports in the Indian press of links between Dr Naik’s organisation and alleged terrorists.

In response to that publicity, in early June, Dr Naik’s representatives met Home Office representatives, including Mr Farr and Debbie Gupta, director of “Prevent”. On 3^rd June Dr Naik sent the Home Office a detailed statement, refuting the Sunday Times allegations, and asserting his mission to “bring people together on one common platform of peace”. Further statements and letters followed between then and 14^th June. They reasserted that he had spoken out against all acts of terrorism and unequivocally condemned acts of violence, including 9/11. His forthcoming tour would be focussed on delivering a message of peace based on Islamic values and condemning terrorism and violent extremism. An exclusion order would be seen as unjust, would adversely affect his many supporters in the UK, and would be a lost opportunity for him to play a constructive role. It would also cause the loss of very substantial amounts in donations and sponsorship money.

On 16^th June, two days before he was due to arrive, the Home Secretary made the decision to exclude him. He was informed by letter of 17^th June that he was to be excluded “for engaging in unacceptable behaviour by making statements that attempt to justify terrorist activity and fostering hatred”; and that the entry clearance officer had been instructed to revoke his visa under rule 30A(iii) of the Immigration Rules, on the grounds that his exclusion would be “conducive to the public good”. On the same day, the decision was reported to Members of Parliament in a letter from the Security Minister, Baroness Neville-Jones. Following further representations, including a detailed letter from his solicitors, the decision was reaffirmed by letter from the Treasury Solicitor dated 25^th June.

There followed a letter before claim dated 12^th July from Dr Naik. Following reconsideration of the case by the Home Secretary, the decision was reaffirmed for reasons given in a letter dated 9^th August.

Judicial review proceedings were commenced challenging the three decisions of 16^th June, 25^th June and 9^th August. Cranston J held that the first two decisions were vitiated by procedural unfairness (paras 64-68) and accordingly made a declaration that they were unlawful. That part of his judgment is not under appeal, although Mr Eadie submits that, for the purposes of any possible remedies under the Human Rights Act, those decisions must be looked at as part of the “entire decision-making process” including the August letter. In the rest of this judgment therefore I will concentrate principally on the final decision of 9^th August, which the judge upheld.

The judgment below (para 23ff) gives a full account of this letter. I note the main points. It said that the decision had been made after considering “a large number of comments made by Dr Naik over a number of years” including those set out in Annex A to the letter. On the other hand she “noted and accepted” that he had made a number of statements condemning terrorist violence. She had also considered “reports regarding third parties and organisations that link the statements of Dr Naik to support their own extremist views”, of which examples were given in Annex B. She concluded:

“(a)

Dr Naik has made a number of statements plainly within the unacceptable behaviours policy.

(b)

He has made other statements which, whether they would do so or not, were divisive and potentially damaging to community relations and were inconsistent with his assertions that his message was one of tolerance and building bridges between faiths.

(c)

The revision of the unacceptable behaviours policy in October 2008 highlighted the weight of the burden on those, such as Dr Naik who have made such statements and who now seek to distance themselves from them.

(d)

Whilst recognising that some recent public statements by Dr Naik have moved away from some of the past statements (and also that some of those statements were made some years ago), the Secretary of State is not satisfied that that burden has been met. She does not consider that, viewing his statements as a whole, Dr Naik has clearly, unambiguously, consistently and publicly condemned terrorist violence and repudiated his extremist views despite the many opportunities he has had to do so. She remains to be convinced that his message is a non-extremist and conciliatory one as he now asserts. Her view remains that he might continue to communicate the sorts of views he has espoused in the past were he to be admitted to the UK.

(e)

In the light of these conclusions, she is not persuaded that the undertaking he has offered should cause her not to exclude him.

(f)

In all the circumstances, her view remains that Dr Naik’s exclusion was conducive to the public good.”

She considered that any risk of possible escalation of community tensions as a result of excluding him would be outweighed by a greater risk of escalation were he to be admitted. Further, people who wanted access to his views could continue to do so through his publications and other media.

The letter included as Annex A a list of 11 statements attributed to Dr Naik, as evidence of “Unacceptable Behaviour”; and as Annex B a list of 4 reports said to provide –

“further context to the influence statements made by Dr Naik have previously had on those engaged in terrorist related activity”.

These lists are included as annexes to this judgment. It is to be noted that, of the 11 statements in annex A, only four (1, 2, 3 and 5) had been relied upon in the earlier decisions. The others were introduced for the first time in the decision of 9^th August.

Before looking at the reasoning of the August letter in more detail, and the related evidence, it is necessary to consider the legal and policy framework for the decision, and the issues in the present appeal.

There is no doubt as to the Secretary of State’s power to refuse an entry visa, or to revoke an existing entry visa, on the grounds that exclusion is “conducive to the public good”. This is referred to specifically in rule 320(6) of the Immigration Rules, which includes in a list of grounds on which entry clearance or leave to enter “is to be refused”:

“(6)

where the Secretary of State has personally directed that the exclusion of a person from the United Kingdom is conducive to the public good;”

Similarly, rule 30A(iii) (referred to in the letter of 17^th June) allows the entry clearance officer to revoke entry clearance if satisfied the holder’s exclusion would be conducive to the public good.

In August 2005, following the London bombings of 7^th July, the then Home Secretary adopted a new policy of exclusions based on a list of “unacceptable behaviours”:

"The List of Unacceptable Behaviours

3.

The list of unacceptable behaviours is indicative rather than exhaustive. It covers any non-UK national whether in the UK or abroad who uses any means or medium including:

•

Writing, producing or distributing material;

•

Public speaking including preaching

•

Running a website; or

•

Using a position of responsibility such as teacher, community or youth leader

To express views which:

•

Foment, justify or glorify terrorist violence in furtherance of particular beliefs;

•

Seek to provoke others to terrorist acts;

•

Foment other serious criminal activity or seek to provoke others to serious criminal acts or;

•

Foster hatred which might lead to inter-community violence in the UK."

This policy was reviewed and revised in October 2008. The Home Secretary announced to Parliament that there would be a presumption in favour of exclusion of those found to have engaged in the types of behaviour listed in the August 2005 statement. Where an individual claimed to have repudiated such views, “the burden of proof would be on them to demonstrate that they had done this and had done so publicly”.

The judge proceeded on the basis that there was no right of appeal against a decision of the Home Secretary to exclude on “non-conducive” grounds (para 38). It is now common ground that a right of appeal may arise in cases brought on grounds of a breach of the Convention.

Permission to appeal was granted by this court (Maurice Kay and Elias LJJ) on two grounds only: (i) substantive legitimate expectation and (ii) breach of Article 10 of the European Convention on Human Rights.

I can deal with the first relatively shortly, because the judge in my view was clearly right, substantially for the reasons he gave. The general principle, as the judge said (para 48) is not in doubt. He referred to the leading case, R v North and East Devon Health Authority ex p Coughlan [2001] QB 213, where this court accepted that, where a lawful promise or practice has induced a legitimate expectation of a benefit which is substantive, not simply procedural, the court will consider whether to frustrate the expectation is so unfair that to take a new and different course would amount to an abuse of power, and in so doing will draw a balance between the interests of a person with a legitimate expectation and the interests that weigh against fulfilling it.

For Dr Naik, Mr Husain relied on the repeated grant of entry clearances between 1990 and 2008, including clearances given after the statements mentioned in the August letter, and the lack of any objection from the authorities to anything done or said by him in that period. They established, he said, a substantive legitimate expectation that Dr Naik was not considered unsuitable for entry, and that he would continue to be able to enter the UK for the same purposes until notified of a “rationally determined, significant change of circumstances”. There had been an implied duty on the Secretary of State, through the entry clearance officers, to consider the public interest issues before granting entry clearance, and to do so on the basis of all information readily available at the time. Since Dr Naik’s activities, including the statements now relied on, could and should have been well known to the authorities, he was entitled to assume that they had been considered and a favourable view taken.

The judge held that this argument “failed at the first hurdle” (para 53). The course of conduct in issuing visas over many years could not give rise to an expectation that the Home Secretary had considered and formed a view on the “conducive” issue.

“That is because, as a matter of law, nothing in the legislation or the Immigration Rules requires the Secretary of State to consider whether to exclude a person from the United Kingdom before entry clearance is decided. The grant of a visa does not require, as a condition precedent, substantive consideration of exclusion. The power of the Secretary of State personally to exclude under paragraph 320(6) of the Immigration Rules is legally distinct from the other non-conducive powers and the powers to curtail leave and to deport. Nothing done at any stage by any entry clearance or immigration officer precluded the Secretary of State from making a personal exclusion decision once she considered the matter.”

On the evidence, no previous Secretary of State had considered this issue, and nothing had been said at any time to justify an assumption on Dr Naik’s part that the issue had been considered by the Secretary of State. Accordingly, there could be no legitimate expectation as to what decision would be made if and when the issue was considered. Even if the issue had been previously considered, and a legitimate expectation so created, a balance had to be drawn. The detriment to Dr Naik and his followers was outweighed by the public interest in the application of the policy adopted in 2005 and reinforced in 2008. Whatever had been done by previous Home Secretaries -

“... the current Secretary of State was entitled to make a personal assessment in 2010 of whether, in her view, exclusion was conducive to the public good, given that background and drawing on the range of sources and advice available to her. She had to account for the exercise of that power, in the first instance, to the House of Commons ...” (para 56)

I agree, but I would go further. The Secretary of State’s responsibility for the protection of national security is a central constitutional role, and encompasses a duty owed to the public at large. It cannot be overridden by reference to any representation or practice relating to an individual entrant. None of the cases relied on by Mr Husain supports such a proposition. That view is reinforced by the personal nature of the responsibility placed on the Home Secretary by the rules. Nothing done or left undone by or on behalf of previous Home Secretaries could, in law or reasonable expectation, detract from the responsibility of the present Home Secretary to make her own decision on the advice and material before her at the time.

Article 10 provides:

“Freedom of expression

1.

Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.

2.

The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”

Two principal questions arise:

The judge held that the territorial basis of the convention rights in general under article 1 was clearly established, at least for domestic purposes, by R(Al-Skeini) v Secretary of State for Defence [2008] 1 AC 153, and R (Smith) v Oxfordshire Assistant Deputy Coroner [2010] UKSC 29; [2010] 3 WLR 223. In so far as the Court of Appeal had held in Farrakhan (R (Farrakhan) v Secretary of State [2002] QB 1391) that article 10 had a wider ambit, that part of the judgment was not binding, and had in any event to be read in the light of the later authorities at the highest level. He concluded that Dr Naik could not personally rely on Article 10, but that his supporters in this country could do so:

“... I return to the issue of the application of R (Al Skeini) and R (Smith) to the circumstances in the present case. In my view the territorial principle they establish means that Dr Naik is unable directly to assert article 10 rights, even in respect of rights to be exercised within the jurisdiction. However, article 10 contains an express right for others to receive the information. The imparting and receipt of information are two sides of one coin. In my view the rights to impart and receive in this context must be viewed in the same integral way in which the court must approach article 8 rights: R Beoku-Betts v Secretary of State for Home Department: [2008] UKHL 390 [2009] 1 AC 115. That is especially so in this case where it is apparent that Dr Naik's question and answer sessions are significant to his public lectures. It is the ability to directly see, hear and interact that is a feature of Dr Naik's attraction. Those who would have attended Dr Naik's events, or at least a surrogate in the form of the Islamic Dawah Centre, would have participated in the hearing before me, but for the procedural reasons indicated above. Sales J assumed that Dr Naik would be able to advance the grounds adequately without the Centre being present. That being the case it seems to me that I should treat Dr Naik as asserting their rights, and for that reason article 10 is engaged since they are clearly within the jurisdiction.”

In this court, there has been some debate about the significance as precedent of the judgment in Farrakhan. The judgment states at one point (para 34) that the court was proceeding on the basis of a concession on behalf of the Secretary of State that Article 10 applied. On the other hand, an earlier paragraph (para 32) appears to indicate that the concession made in the lower court had been withdrawn by the Home Secretary, in response to concerns expressed by the court itself. Furthermore, the court went on to consider the Strasbourg authorities in some detail, before setting out its conclusions both on the principles (paras 52-56), and on their application to Mr Farrakhan’s case, holding that Article 10 was engaged, even though Mr Farrakhan was an alien physically outside the country (paras 57-62).

In my view, it is unnecessary to examine this topic, since the jurisprudence has in any event moved on. The general principle that the ambit of the convention has a territorial limit has been confirmed for domestic purposes by the cases mentioned by the judge (even though the actual decision in Al-Skeini has not been supported in Strasbourg: Al-Skeini v UK app 55721/07; 7^th July 2011). On the other hand, a line of more recent Strasbourg authorities supports a wider view of article 10, emphasis being placed on the words “regardless of frontiers”.

Thus in Cox v Turkey [2010] Imm AR 4, the court held that article 10 was engaged by the ban on the re-entry of a US woman who had expressed strong views on issues of Kurdish assimilation and the treatment of Armenians. The court mentioned a recent case (Women On Waves v. Portugal, no. 31276/05 3^rd Feb 2009) in which it had –

“… examined a ban imposed by the Portuguese authorities on a ship whose crew was about to launch a campaign in Portugal in favour of the decriminalisation of abortion. The ban which effectively prevented the ship from entering Portuguese territorial waters was held by the Court to amount to an interference with the applicants' right to freedom of expression.” (para 29)

Reference was also made to a case to similar effect under article 9: Nolan v Russia App 2512/04 6^th July 2009). The judgment in Cox continued:

“31.

The Court considers that the ban on the applicant's re-entry is materially related to her right to freedom of expression because it disregards the fact that Article 10 rights are enshrined “regardless of frontiers” and that no distinction can be drawn between the protected freedom of expression of nationals and that of foreigners. This principle implies that the Contracting States may only restrict information received from abroad within the confines of the justifications set out in Article 10 § 2 (Autronic AG v. Switzerland, 22 May 1990, §§ 50 and 52, Series A no. 178). The scope of Article 10 of the Convention includes the right to impart information. The applicant is precluded from re-entering on grounds of her past opinions and, as a result, is no longer able to impart information and ideas within that country. In light of the foregoing, the Court concludes that there has been an interference with the applicant's rights guaranteed by Article 10 of the Convention. The Court will thus proceed to examine whether that interference was justified under the second paragraph of that provision.” (para 31)

Mr Eadie relies on the detailed analysis of Farrakhan and other authorities by the Immigration Appeal Tribunal (presided over by Ouseley J) in Sun Myung Moon v Entry Clearance Officer [2005] UKIAT 00112. He submits that the recent Strasbourg cases are not inconsistent with the territoriality principle, because the applicant in Cox was physically present in the country at the time of the decision, and in Women on the Waves two of the applicants had their seat in Portugal, even if the relevant ship was outside. In any event no jurisdictional point appears to have been taken. In Nolan where the issue of jurisdiction was mentioned, it was held sufficient that the applicant was in a transit hall, which was under Russian jurisdiction, and for which the government did not claim “the status of extra-territoriality” (para 95). On the same basis, Mr Eadie concedes that, if Dr Naik had made his application at a border control within this country, he would have been within the protection of article 10.

In my view, Mr Husain is right to submit that the modern jurisprudence tends to support the approach adopted by this court in Farrakhan, The judgments in Women on the Waves and Cox provide persuasive support for the argument that article 10, at least, is not limited by the same strict principle of territoriality as applies to other parts of the Convention. That view is reinforced by Mr Eadie’s concession. It is difficult to see any logic in treating an applicant less favourably because he takes the sensible course of applying for entry clearance from abroad, rather than simply arriving at border control at Heathrow. If a more substantive connection with this country is required, it can be found in Dr Naik’s previous unobstructed visits to this country, his large body of supporters here, and his extant multiple entry visa.

However, it remains an issue of some controversy, and of potentially wide importance in other cases. I am reluctant to reach a final decision if it is not necessary for the decision in this case. As already noted, the judge accepted, and it is not now in issue, that article 10 rights are enjoyed by Dr Naik’s supporters in this country, and that he can rely on them in these proceedings. Mr Husain submits that it would be wrong at this stage to exclude the possibility that a right enjoyed by Dr Naik personally might make a difference to the damages ultimately recoverable. I agree. However, that is not a decision which can or need be made on the material currently available. It is best left for consideration if and when the Secretary of State seeks to resist a particular head of damages on that ground.

I therefore turn to consider the issue of justification, on the basis that article 10 is engaged in respect of Dr Naik’s supporters, and (without deciding the issue) possibly also in respect of him personally.

In this section I will consider the authorities governing the approach which the court should adopt to this question. I will then consider its application to the Secretary of State’s decisions in this case.

The judge referred to Farrakhan which he interpreted as holding that it was appropriate to accord “a particularly wide margin of discretion” to the Secretary of State. The court had identified four factors as supporting this proposition: (i) that an immigration decision was involved, and that the Secretary of State was motivated not by the wish to prevent Mr Farrakhan from expressing his views, but by concern for public order; (ii) the fact it was the personal decision of the Secretary of State, made following widespread consultation; (iii) that the Secretary of State was far better placed to reach an informed decision as to the likely consequences of admitting Mr Farrakhan than was the court; (iv) the Secretary of State was democratically accountable for the decision. The judge also referred to decisions of this court in analogous contexts as showing that “the test for curial intervention is very high”: N (Kenya) v Secretary of State [2004] EWCA Civ 1094; [2004] INLR 612, OP (Jamaica) v Secretary of State [2008] EWCA Civ 440, CB (USA) v Entry Clearance Office (Los Angeles) [2008] EWCA Civ 1539. From the latter, which like the present case related to a decision to exclude on “conducive” grounds, he cited the words of Laws LJ:

“… In this particular area, unlike some other areas of immigration and asylum law, a degree of deference is due to the original decision maker. The subject matter is the good of the United Kingdom generally. That, it may be said, has strategic or overreaching elements where the Secretary of State and indeed his Entry Clearance Officers have special responsibility.” (para 15)

In this court, Mr Eadie relies on the cases cited by the judge as indicating the “broad margin of judgement” to be afforded to the Secretary of State. Even if that were wrong, he submits, it is clear that the judge did not simply defer to the Secretary of State’s assessment, but reached his own conclusion that the interference was proportionate.

Mr Husain challenges the judge’s approach, largely by reference to authorities not cited below. He distinguishes the cases relied on by the judge. CB(USA) had no human rights dimension. Cases such as N(Kenya) and OP(Jamaica),which related to criminal deportation in the context of article 8, should not apply in the very different context of article 10. The statements in Farrakhan had been overtaken by subsequent authority, particularly of the House of Lords in A v Secretary of State [2005] 2 AC 68, and of the Strasbourg court in Cox itself. He also relies on an earlier Strasbourg case, not cited in Farrakhan or before Cranston J: Surek v Turkey (1999) 7 BHRC 339.

Because Surek is central to Mr Husain’s argument, and seems to have escaped attention in previous domestic authorities, I think it useful to look at it at some length. The case concerned the fining and imprisonment of the editor of a Turkish newspaper, which had published an interview with the leader of the PKK, an illegal organisation. The reported answers included strong condemnation of government policy in the Kurdish area, and statements such as -

“This war will continue as long as the Turkish State refuses to accept the will of the people of Kurdistan” (p 346i)

The editor and owner were prosecuted under the Prevention of Terrorism Act 1991. The Strasbourg court held that there had been a violation of article 10.

The court reiterated the “fundamental principles” derived from its judgments relating to Article 10:

“(i)

Freedom of expression constitutes one of the essential foundations of a democratic society and one of the basic conditions for its progress and for each individual’s self-fulfilment. Subject to paragraph 2 of Article 10, it is applicable not only to “information” or “ideas” that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb. Such are the demands of that pluralism, tolerance and broadmindedness without which there is no “democratic society”. As set forth in Article 10, this freedom is subject to exceptions, which must, however, be construed strictly, and the need for any restrictions must be established convincingly.

(ii)

The adjective “necessary”, within the meaning of Article 10 § 2, implies the existence of a “pressing social need”. The Contracting States have a certain margin of appreciation in assessing whether such a need exists, but it goes hand in hand with European supervision, embracing both the legislation and the decisions applying it, even those given by an independent court. The Court is therefore empowered to give the final ruling on whether a “restriction” is reconcilable with freedom of expression as protected by Article 10.

(iii)

In exercising its supervisory jurisdiction, the Court must look at the interference in the light of the case as a whole, including the content of the impugned statements and the context in which they were made. In particular, it must determine whether the interference in issue was “proportionate to the legitimate aims pursued” and whether the reasons adduced by the national authorities to justify it are “relevant and sufficient”. In doing so, the Court has to satisfy itself that the national authorities applied standards which were in conformity with the principles embodied in Article 10 and, moreover, that they based themselves on an acceptable assessment of the relevant facts.” (para 57)

It was accepted that State authorities were entitled to adopt measures “even of a criminal-law nature” in response to “unjustified attacks and criticisms of its adversaries”, and that –

“… where such remarks incite to violence against an individual or a public official or a sector of the population, the State authorities enjoy a wider margin of appreciation when examining the need for an interference with freedom of expression.”

Of the particular interview it said:

“While it is clear from the words used in the interviews that the message was one of intransigence and a refusal to compromise with the authorities as long as the objectives of the PKK had not been secured, the texts taken as a whole cannot be considered to incite to violence or hatred. The Court has had close regard to the passages of the interviews which, in the view of the Government, can be construed in this sense…

The Court is naturally aware of the concern of the authorities about words or deeds which have the potential to exacerbate the security situation in the region, where since approximately 1985 serious disturbances have raged between the security forces and the members of the PKK involving a very heavy loss of life and the imposition of emergency rule in much of the region… However, it would appear to the Court that the domestic authorities in the instant case failed to have sufficient regard to the public’s right to be informed of a different perspective on the situation in south-east Turkey, irrespective of how unpalatable that perspective may be for them. As noted previously, the views expressed in the interviews could not be read as an incitement to violence; nor could they be construed as liable to incite to violence…” (para 61)

It is of interest to note the concurring judgment of Judge Palm and others (p 369), in which it was suggested that the majority assessment attached too much weight to “the form of words used in the publication” and insufficient attention to “the general context in which the words were used and their likely impact”:

“Undoubtedly the language in question may be intemperate or even violent. But in a democracy, as our Court has emphasised, even “fighting” words may be protected by Article 10.

An approach which is more in keeping with the wide protection afforded to political speech in the Court’s case-law is to focus less on the inflammatory nature of the words employed and more on the different elements of the contextual setting in which the speech was uttered. Was the language intended to inflame or incite to violence? Was there a real and genuine risk that it might actually do so? The answer to these questions in turn requires a measured assessment of the many different layers that compose the general context in the circumstances of each case. Other questions must be asked. Did the author of the offending text occupy a position of influence in society of a sort likely to amplify the impact of his words? Was the publication given a degree of prominence either in an important newspaper or through another medium which was likely to enhance the influence of the impugned speech? Were the words far away from the centre of violence or on its doorstep?

It is only by a careful examination of the context in which the offending words appear that one can draw a meaningful distinction between language which is shocking and offensive – which is protected by Article 10 – and that which forfeits its right to tolerance in a democratic society.”

It seems clear that the approach of the court in Surek has been consistently applied in subsequent cases on article 10. That is apparent from the much more recent judgment in Cox (already referred to in the context of the territorial issue), where the court reaffirmed the importance of the rights protected by article 10, and the need for “the most careful scrutiny” by the court of any restrictions:

“38.

The Court reiterates that freedom of expression constitutes one of the essential foundations of a democratic society and one of the basic conditions for its progress and for each individual's self-fulfilment. Subject to paragraph 2, it is applicable not only to “information” or “ideas” which are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb. Such are the demands of pluralism, tolerance and broadmindedness, without which there is no “democratic society”. As set forth in Article 10, this freedom is subject to exceptions, which must, however, be construed strictly, and the need for any restrictions must be established convincingly. It is also to be reiterated at this juncture that such exceptions and restrictions call for the most careful scrutiny on the part of the Court…

39.

Moreover, in order for an interference to be compatible with the Convention, the interference must not only be prescribed by law and pursue one or more of the legitimate aims set out in the second paragraph of Article 10 of the Convention, but it must also be “necessary in a democratic society” to achieve that aim or aims. In this connection the Court has consistently held that Contracting States enjoy a certain margin of appreciation in assessing the need for interference, but this margin goes hand in hand with European supervision, whose extent will vary according to the case. Where, as in the instant case, there has been an interference with the exercise of the rights and freedoms guaranteed in paragraph 1 of Article 10, the supervision must be strict, because of the importance of the rights in question; the importance of these rights has been stressed by the Court many times. The necessity for restricting them must be convincingly established…

40.

In exercising its supervisory function, the Court has to look at the interference complained of in the light of the case as a whole. In particular, it must determine whether the reasons adduced by the national authorities to justify the interference were relevant and sufficient and whether the measure taken was proportionate to the legitimate aims pursued. In doing so, the Court has to satisfy itself that the national authorities, basing themselves on an acceptable assessment of the relevant facts, applied standards which were in conformity with the principles embodied in Article 10 of the Convention…” (emphasis added)

In relation to the balance to be drawn under the Convention where national security issues are at stake, Mr Husain refers to high domestic authority in the speech of Lord Bingham in A & Ors v. Secretary of State [2004] UKHL 56; [2005] 2 AC 68. That concerned the UK’s proposal to derogate on grounds of “public emergency” from the right to personal liberty under article 5(1), by providing for the detention of foreign nationals suspected by the Secretary of State to be terrorists. It was held (in the words of the headnote):

“that although the response necessary to protect national security was a matter of political judgment for the executive and Parliament, where Convention rights were in issue national courts were required to afford them effective protection by adopting an intensive review of whether such a right had been impugned, and the courts were not precluded by any doctrine of deference from examining the proportionality of a measure taken to restrict such a right…”

It was held that the measure was unlawful and disproportionate, in particular because it involved unjustifiable discrimination against foreign nationals.

Lord Bingham accepted that “great weight” should be given to the judgement of the Home Secretary, his colleagues and Parliament on matters of political judgment (para 29), particularly in the security field. He preferred to approach the issue as one, not of “deference”, but of “demarcation of functions” or “relative institutional competence”. He cited Lord Hoffmann’s postscript in Secretary of State v Rehman [2003] 1AC 153; [2001] UKHL 47 para 62 (written shortly after the 9/11 attacks in New York and Washington, which he took as “a reminder that in matters of national security, the cost of failure can be high”):

“This seems to me to underline the need for the judicial arm of government to respect the decisions of ministers of the Crown on the question of whether support for terrorist activities in a foreign country constitutes a threat to national security. It is not only that the executive has access to special information and expertise in these matters. It is also that such decisions, with serious potential results for the community, require a legitimacy which can be conferred only by entrusting them to persons responsible to the community through the democratic process. If the people are to accept the consequences of such decisions, they must be made by persons whom the people have elected and whom they can remove.”

However, Lord Bingham did not accept the Attorney-General’s submission that it was solely for Parliament and the executive, as “the democratic organs of the state”, to assess a threat facing the nation, and to judge the response necessary to protect public security (para 37). Having reviewed domestic and Strasbourg case-law, he quoted with approval the observations of Simon Brown LJ in International Transport Roth GmbH v Secretary of State [2003] QB 728 para 27, 54:

“….. the court's role under the 1998 Act is as the guardian of human rights. It cannot abdicate this responsibility…

“…judges nowadays have no alternative but to apply the Human Rights Act 1998. Constitutional dangers exist no less in too little judicial activism as in too much. There are limits to the legitimacy of executive or legislative decision-making, just as there are to decision-making by the courts.”

It followed, in Lord Bingham’s view, that the courts were not precluded by “any doctrine of deference” from reviewing on proportionality grounds the derogation order. He continued:

“… the function of independent judges charged to interpret and apply the law is universally recognised as a cardinal feature of the modern democratic state, a cornerstone of the rule of law itself. The Attorney General is fully entitled to insist on the proper limits of judicial authority, but he is wrong to stigmatise judicial decision-making as in some way undemocratic. It is particularly inappropriate in a case such as the present in which Parliament has expressly legislated in section 6 of the 1998 Act to render unlawful any act of a public authority, including a court, incompatible with a Convention right, has required courts (in section 2) to take account of relevant Strasbourg jurisprudence, has (in section 3) required courts, so far as possible, to give effect to Convention rights and has conferred a right of appeal on derogation issues…” (para 42)

On a similar theme, I note the comment on Farrakhan in Huang v Secretary of State [2007] UKHL 11 para 16:

“The giving of weight to factors such as these is not, in our opinion, aptly described as deference: it is performance of the ordinary judicial task of weighing up the competing considerations on each side and according appropriate weight to the judgment of a person with responsibility for a given subject matter and access to special sources of knowledge and advice.”

Reference could also be made to many other judicial and academic discussions of this issue (see e.g. Wade and Forsyth Administrative Law (10^th ed) p 308ff under the heading “Deference”, referring to the “voluminous literature” on this topic). For completeness, I have also had regard to the very recent judgment of the Supreme Court in R(Quila) v Secretary of State [2011] UKSC 45, which affirms in a different context the distinct role of the court in evaluating the proffered justification for interference with human rights: see para 44-46, per Lord Wilson.

On the basis of these authorities, I agree with Mr Husain that the modern law is not fully reflected in Farrakhan, or the other cases cited by the judge. The position which emerges is reasonably clear. Ministers, accountable to Parliament, are responsible for national security; judges are not. However, even in that context, judges have a duty, also entrusted by Parliament, to examine Ministerial decisions or actions in accordance with the ordinary tests of rationality, legality, and procedural regularity, and, where Convention rights are in play, proportionality. In this exercise great weight will be given to the assessment of the responsible Minister. However, where rights under Article 10 are engaged, given the special importance of the right to free speech, it is for the Court, looking at the interference complained of “in the light of the case as a whole”, to determine whether the reasons given to justify the interference were “relevant and sufficient”. This will involve a judgment whether the measure taken was proportionate to the legitimate aims pursued, based on “an acceptable assessment of the relevant facts”, and in conformity with the principles embodied in Article 10 (see Cox above). A range of factors may be relevant, including whether the speaker occupies “a position of influence in society of a sort likely to amplify the impact of his words” (para 42 above). The supervision must be “strict”, because of the importance of the rights in question, and the necessity for restricting them must be “convincingly established”.

The fullest statement of the Home Secretary’s reasons for maintaining her decision to exclude is in the letter of 9^th August 2010, already discussed.

Subsequent evidence included two witness statements by Dr Naik himself, dated respectively 6^th August and 13^th October 2010. The first was made very shortly before the final decision letter. It is not entirely clear whether it was taken into account, but its content was similar to that of previous letters. In it, Dr Naik observed that, although he had been visiting the UK for many years, there had never been any disturbances at his meetings, nor had he been told that his expressed views might result in his exclusion. He said:

“For the avoidance of doubt, I wish to reiterate that I do not advocate terrorist violence, or support for extremist organisations that promote such aims. Over many years I have consistently tried to use my profile within the Muslim world to engage with other faiths; promote peace, harmony and mutual understanding, and speak against many misconceptions about Islam.

I have consistently and repeatedly condemned those responsible for the attacks on the US in 2001 (“9/11”) and subsequent attacks in London and Mumbai. I have gone further and stated that I believe such acts to be contrary to the teachings of Islam and impermissible in Islam.” (paras 8-9)

He was willing to consider how his message of “peace and mutual understanding” might assist in diverting British Muslims from violence. He criticised the decision to exclude him as a “political gesture” in response to the “inaccurate and unfair” Sunday Times article.

Dr Naik’s second witness statement, made shortly before the hearing before Cranston J, contained a much fuller refutation of the final decision letter of 9^th August (running to 140 paragraphs). It is not necessary to do more than highlight some of the main points.

It reaffirmed Dr Naik’s commitment to peace and his condemnation of terrorism, and his willingness to assist the government in opposing violent extremism, and promoting its “Prevent” agenda. He referred in detail to two lectures, quotations from which had been used by the Secretary of State: “Is Terrorism a Muslim Monopoly” (Mumbai, September 2006), and “Terrorism & Jihad – an Islamic perspective” (Chennai, October 2002). He did so in order that his views could be –

“properly understood in contrast to the Secretary of State’s approach of fishing out individual remarks and citing them without context.” (para 20)

From the former (which was the source of the Secretary of State’s statement 5, and had been widely available since 2007), he cited a number of quotations making clear his condemnation of terrorism, concluding:

“I could not have expressed myself more clearly. My message was that a proper interpretation of the Qu’ran leads to the conclusion that Islam condemns all forms of Terrorism and all forms of acts which kill innocent human beings.” (his emphasis)

On the other hand, while condemning the 9/11 attacks themselves -

“I have always declined to pass judgment as to who bears responsibility for the 9/11 attacks because in many countries that I have visited, the available evidence remains disputed.” (para 78)

This witness statement also contained a detailed, sequential commentary on the individual statements relied on by the Secretary of State set out in Annex A, seeking to put them in their proper context, for example:

In his second statement (para 127-136) he also referred to the reports of activities of others linked to his speeches, relied on in Annex B to the Treasury Solicitor’s letter, commenting:

“It is the curse of all substantial political leaders and religious thinkers and orators that their words may become appropriated by fanatical extremists but that cannot mean that they are the cause of the extremism… As detailed above I have categorically condemned terrorist acts.”

He referred to the “sketchy” and “anecdotal” nature of the reports. For example, the one related to a person linked to the Glasgow bombing suggested no more than that he had “hoped” to invite Dr Naik to raise the profile of his group. Dr Naik did not recall any such invitation (among the thousands of similar invitations he received regularly), but if he had he would have treated it as an opportunity to convey his “message of absolute opposition to terrorism.”

There was no evidence from the Secretary of State in response to either of these statements. The only evidence filed on behalf of the Secretary of State, from members of the “Prevent” team (including Dr Farr) who met Dr Naik’s representatives before the June decisions. They challenge some statements as to the content of meetings with Dr Naik’s representatives in June, but do not challenge the substance of his evidence as to the character of recent activities. Nor was Dr Naik’s evidence challenged in cross-examination.

Apart from the August letter, the Secretary of State’s only other formal response came in the “Summary of grounds for resisting the claim” (9^th September 2010). Although it was denied that Dr Naik could rely on article 10, the Secretary of State’s justification for the interference was stated in short terms:

“48.

The interference is in accordance with law in that it is regulated by and complies with paragraph 320(6) of the Immigration Rules and the published Unacceptable Behaviour policy.

49.

The interference itself is relatively slight. The Claimant is not prevented from making any statement he chooses and from distributing it to whoever he chooses (including those within the United Kingdom). The only limitation is that he must make his statements from outside the United Kingdom.

50.

The legitimate aims of protection of national security and the prevention of crime and the protection of the rights of others are engaged.

51.

Given the importance attached to the particular legitimate aims that are being pursued and the relatively slight nature of the impact on the Claimant’s freedom of expression, any interference is therefore plainly necessary for and proportionate to the legitimate aims that are being pursued. That is all the more so given the breadth of the margin properly to be afforded to the Secretary of State in this context…”

Before Cranston J Mr Husain argued that the exclusion could not be justified under article 10(2), because it was arbitrary, and it constituted the sudden revocation of a long-term entitlement to enter the United Kingdom, on the basis of conduct prior to the conferral of that right. There was no predictable legal basis by which to distinguish between circumstances where the right had been given to Dr Naik through the 2008 visa, and circumstances where, pursuant to the same conduct, entry clearance was withdrawn in 2010. Nor could it be said to be proportionate. The curtailment of freedom of expression was not convincingly established by compelling countervailing considerations, nor could it be said to fall within the unacceptable behaviour policy, even in its expanded form.

The judge concluded:

“In my view interference with article 10 rights in Dr Naik's case can be justified within article 10(2). First, the interference through Dr Naik's exclusion is in accordance with law in that it is governed by paragraph 320(6) of the Immigration Rules and the published unacceptable behaviours policy. They provide a predictable legal basis for the exercise of the power. That Dr Naik was given the right to enter the United Kingdom in 2008 was not based on the statements that subsequently resulted in his exclusion. Those statements were not taken into account and there was no consideration of exclusion in 2008.

Moreover, Dr Naik is not prevented from making or distributing his views through, for example, Peace TV. Those interested can obtain easy access to them through his broadcasts or the recordings of his public lectures. The limitation is that he cannot appear at public events in this country. The interaction with the audience in his public lectures is an important aspect in the expression of Dr Naik's views. Those in this country will have to experience that second-hand, through watching it take place elsewhere. While not slight, that interference with freedom of expression is in my judgment not of major account.

In his second statement Dr Naik condemns terrorism and seeks to explain the eleven statements which the Secretary of State has identified as objectionable by placing them in context. Nonetheless, it seems to me that the Secretary of State is entitled to conclude that Dr Naik's explanations unjustifiably marginalise the importance of some of the statements, use semantic arguments to avoid the import of others, and fail to grapple with the substance of others. Given the importance attached to the particular legitimate aims that are being pursued, and the nature of the impact as I have characterised it, it seems to me that the interference with freedom of expression by the Secretary of State's exclusion decision is proportionate to these aims.” (paras 81-3)

I start with two preliminary points: first, the nature of the review and the relevance to it of the evidence; secondly, the policy basis of the decision.

First, Mr Husain criticised the judge for asking himself whether the Secretary of State was “entitled” to conclude as she did, rather than himself “grappling with” Dr Naik’s explanation. I do not accept this criticism. Even in the context of article 10, the court is not substituting its own view for that of the Secretary of State. We are reviewing her decision by reference to public law and human rights principles. It is not incorrect for that purpose to ask whether she was “entitled”, acting rationally and proportionately, to reach the view she did.

For the same reason, as in conventional judicial review, the court in theory at least, should normally be directing its attention to the material before the Secretary of State when she made the relevant decisions. It is those decisions which are the subject of challenge. This is not one of those cases where the nature of the relief sought requires the court to look at subsequent developments (cf E v Secretary of State [2004] QB 1044, para 73).

It is true that Mr Eadie has not taken any point on the fact that Dr Naik’s second statement post-dates the relevant decision by some weeks. The court is not necessarily bound by such a concession, and in other cases it might be a source of confusion. In this case I am content to accept it. Dr Naik’s statement is largely an elaboration of the general case already made, and a response to points in the August letter which had not been relied on in the earlier decisions. Further, most of that evidence, so far as not actually before the Secretary of State at that time, would have been readily available if she had required further information. On the other hand, it is clear from both Strasbourg and domestic jurisprudence that the court, as “guardian of human rights”, has a more intrusive role than under traditional judicial review principles. This does not mean that we can substitute our views for those of the Secretary of State on an issue such as national security, which is within her “institutional competence”, not ours. But it does mean that we cannot simply rely on the lawfulness of the policy or the absence of irrationality in its application. We are required to satisfy ourselves that the reasons given by her were “relevant and sufficient”, having regard to the principles of article 10 (as explained in the Strasbourg cases), and proportionate to their legitimate purpose.

Secondly, our task is made easier by the relatively limited policy basis on which the Secretary of State has made her decision. She does not rely on some undefined, general discretion based on national security. Her decision is founded on a specific and clearly defined policy, the “unacceptable behaviours” policy, as enunciated in 2005 and refined in 2008. It is true that the August letter goes beyond the strict words of the policy when it refers to statements “divisive and... damaging to community relations”. But that can be seen as a legitimate extension of the spirit of the policy, which does not change the essential basis of the decision. Conversely, the legality of that policy, as such, has not been challenged.

I say at once that I attach less weight than the judge to the point that the practical impact of the ban is relatively limited, in that electronic or other forms of communication between Dr Naik and his followers, actual or potential, are not inhibited. This point had been relied on in the Secretary of State’s response to the judicial review application (para 58 above). However, it works both ways. By the same token, it may be said, the Secretary of State can claim limited tangible benefit for the ban on Dr Naik’s physical presence in this country. There has been no suggestion (and there is no evidence) that his presence in itself is likely to cause problems, such as disruption to public order. The rationale of the ban lies solely in the potential effect of his words – given directly face to face, rather than by indirect means. He may ask why those words are significantly more likely to have the consequences feared by the Secretary of State merely because they are conveyed in person, rather than by other means, which might for example include a speech delivered by screen to a large meeting in London.

On the other hand, I accept that the balance of such identifiable benefits or disbenefits may not be the end of the matter. In relation to a person of Dr Naik’s international importance, his admission, or indeed his exclusion, may have a symbolic significance which transcends purely practical considerations.

Turning to the central question, that is the application of the policy, there were essentially three questions for the Secretary of State: (1) had Dr Naik engaged in the types of behaviour listed in the August 2005 statement? (2) if so, had he not only repudiated such views, but demonstrated publicly that he had done so? (3) would his exclusion under the policy be proportionate in relation to its legitimate aims?

On the first question I readily accept her conclusion that some at least of the statements brought Dr Naik within the policy. It is not necessary to review them all in detail. The stark message to an ordinary listener of statement 1 (“every Muslim should be a terrorist to every anti-social element”) is hardly mitigated by the explanatory reasoning which surrounds it. Equal objection could be taken to statement 2 (“if [Bin Laden] is terrorising America, the biggest terrorist... every Muslim should be a terrorist”), even if spoken before 9/11. Other statements, at least taken on their own, seem needlessly provocative and inflammatory: statement 9 (comparing Americans to pigs), and statement 10 (apparently defending the death penalty for apostasy). The language of the former (not in terms repudiated in Dr Naik’s evidence) is gratuitously offensive, and difficult to reconcile with Dr Naik’s claim to be a serious religious thinker, let alone a messenger of peace.

Other statements are more open to argument: for example, statement 3 (condemnation of the killing of innocent victims, whether by terrorism or war) sits oddly in a list of incitements to violence; or statement 7 (about Jewish influence on American government) which, though strongly expressed, may be thought within the bounds of legitimate political comment. Taken together, however, the Secretary of State could fairly take the view that the statements were either directly within the policy, or in any event potentially “divisive and... damaging to community relations”, and inconsistent with Dr Naik’s asserted message of tolerance and bridge-building.

I have more concern with her treatment of the second and third question, which can be considered together. I am conscious, having read in draft the compelling judgment of Gross LJ, agreed by Jackson LJ, that this concern is not shared to the same extent by my colleagues who see the case in much clearer terms. However, I am troubled by the very limited material offered by the Secretary of State to address the substance of Dr Naik’s case.

His consistent position, in the letters from his solicitors, as reinforced by his subsequent witness statements, relies on a very public record in recent years: 1,300 public speeches around the world in the last 13 years; over 100 talks and debates available on recordings; since 2007, a series of international peace conferences in Mumbai, now attracting over one million people; and regular visits to and speeches in this country. As to the latter, while I have accepted that past acquiescence by the authorities creates no legitimate expectation for the future, it is some evidence that his past visits have not given rise to serious problems in practice. The evidence of the four incidents referred to in Annex B is, as Dr Naik says, sketchy and anecdotal. Against this background, he asserts the eleven short passages, taken from much longer speeches over a long period, mostly outside the UK, are taken out of context, and are in no way representative of the general tenor of his speeches in recent years. He affirms that his message on his tour will be one of peace (as it has been on previous visits), underpinned if necessary by undertakings to that effect.

His evidence, both as to his recent record and as to his intentions, stands unchallenged by either cross-examination or any contradictory evidence on behalf of the Secretary of State. This to my mind is a serious weakness in the Secretary of State’s case. However, I remind myself that her case does not depend on a general exercise of discretion, but on the application of a specific policy, which in itself is not challenged as being unlawful, irrational or disproportionate. The question under the policy is not simply whether his general message is now one of peace, but whether he has clearly and publicly repudiated the views reflected in those statements.

In many cases proportionality might require a more flexible approach. However, the very prominence of Dr Naik, as an international figure of great influence, may mean that isolated statements even taken out of context take on a much greater significance. As he himself acknowledges, it is the “curse” of substantial religious leaders that their words may be “appropriated by fanatical extremists”. In those circumstances, the Secretary of State is entitled to ask, not just for general assertions, but for specific repudiation. If his evidence is tested by that standard, I find it difficult to disagree with the judge’s assessment:

“… the Secretary of State is entitled to conclude that Dr Naik's explanations unjustifiably marginalise the importance of some of the statements, use semantic arguments to avoid the import of others, and fail to grapple with the substance of others….”

As he said, given the importance of the national security aims of the policy, the question is whether the interference with freedom of expression by the Secretary of State's exclusion decision was proportionate to those aims. On balance, and giving due weight to her special responsibility in this sphere, I conclude that the decision is justified.

That leaves only the consequences of the judge’s finding, not now in dispute, that the earlier decisions were unlawful on the grounds of unfairness. On that issue I agree with Gross LJ’s reasoning and conclusion.

For the above reasons, I would dismiss the appeal. Subject to any submissions of the parties, any remaining issues of remedies will be remitted to the High Court.

In relation to the issue of substantive legitimate expectation, I agree that the appeal should be dismissed. The judge’s decision should be upheld for the reasons given by Carnwath LJ at paragraphs 19 to 23 of his judgment. In relation to the article 10 issue, I agree that this appeal should be dismissed for the reasons given by Gross LJ. In relation to the Secretary of State’s decisions dated 16 June and 25 June, I agree that the position is as set out in the last two paragraphs of Gross LJ’s judgment.

I gratefully adopt the summary of the facts contained in the judgment of Carnwath LJ.

I agree entirely with Carnwath LJ and for the reasons which he has given (above, at [19] – [23]) that the appeal, insofar as based on substantive legitimate expectation, must fail. Were it otherwise, as Mr. Eadie QC for the SSHD put it, the SSHD would be compelled to admit Dr Naik even though she was otherwise entitled to exclude him.

I further agree with Carnwath LJ that it is unnecessary to decide and that we should not decide whether Dr. Naik, as an alien not physically within this country (as distinct from his followers in this country), can himself invoke Art. 10 rights: see, above, at [26] – [33]. I would, however, add that, with respect, I am rather more attracted than Carnwath LJ may have been to the analysis of Ouseley J in Moon (supra); in particular, in practical terms, there may well be advantages in preserving a “real distinction” between those who seek entry clearance from outside the country and those who apply at a border control within this country having arrived here without entry clearance: see, Moon, at [77].

Turning to the central issue on the appeal, for my part, the SSHD was amply justified in excluding Dr Naik pursuant to the 9^th August decision. Albeit that, with respect, there is or may be some difference of emphasis between us, I agree with Carnwath LJ as to the outcome of this issue. Subject only therefore to peripheral questions relating to the earlier decisions of 16^th and 25^th June (“the earlier decisions”) dealt with at the end of this judgment, I would dismiss this appeal. My reasons follow.

For the avoidance of doubt, I address the issue of the justification for excluding Dr. Naik on the assumption most favourable to him: namely, that he is entitled to invoke Art. 10 rights. (The terms of Art. 10 are set out in Carnwath LJ’s judgment, at [24] above.) As already indicated, it is unnecessary to decide this point; I instead assume it in Dr. Naik’s favour and treat his position as indistinguishable from that of his followers in this country.

(1) Principle and authority: As it seems to me, the legal framework for determining this issue is furnished by the principles or propositions which follow.

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

Secondly, where immigration control overlaps with or results in the engagement of Art. 10 rights of freedom of expression (as it does or as must be assumed here), such control must be exercised consistently with the State’s Convention obligations.

Thirdly, Art. 10 rights of freedom of expression are of the first importance. These rights are not, however, absolute or unqualified, as Art 10.2 makes clear. The importance of rights of freedom of expression in a democracy requires no reiteration here. Likewise, the wording of Art. 10.2 speaks for itself.

Fourthly, resolution of any tension between the important interests of immigration control and freedom of expression is achieved by way of Art. 10.2. The application of the provisions of Art. 10.2 will determine whether or not the interference with freedom of expression is justified. The exceptions contained in Art. 10.2 must be construed strictly and the need for any restrictions must be convincingly established. This approach to the construction of Art. 10 is justified both by the structure of the Article and its context; it is moreover well-established in English authority and finds an echo in the Strasbourg jurisprudence cited to us: see, for example, Surek v Turkey (supra), at [57] et seq; Cox v Turkey (supra), at [38] – [40]. Manifestly too, freedom of expression, if it is to have meaning, cannot be confined to those expressing palatable views; a degree of robustness is a healthy attribute of a democratic society.

Fifthly, 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). Let it be accepted that such decisions, when resulting in the engagement of Art. 10, warrant the most careful scrutiny on the part of the Court; crucially, even so, the decision-maker is the SSHD not the Court. As Carnwath LJ expressed it (at [62] above), the Court is not substituting its own view for that of the SSHD. The Court’s task remains one of review. By way of elaboration:

Pausing here, I have sought to state the law in this area as I understand it to be and I will seek to apply it accordingly. Whether the law has become more complicated than it should be in the case of decisions by the SSHD to exclude non-nationals from the country on national security grounds, may be a question for some other day but was not argued before us on this appeal.

It remains to deal relatively briefly with two authorities from the European Court of Human Rights (“the Strasbourg Court”), not cited to the Judge and to which some reference has already been made. As recorded by Carnwath LJ ([37] et seq, above), Surek v Turkey (supra), was central to Mr. Husain’s submissions on the appeal. With respect, I am unable to accept that Surek v Turkey significantly advances the argument.

The principle for which the majority judgment in Surek is authority (so far as material to this appeal), is unremarkable – and unexceptionable. It is to be found in the headnote, at p.340:

“ It was open to the government to adopt measures intended to react appropriately and without excess to the criticisms of its adversaries. Where such remarks incited violence against the state, threatening its security or territorial integrity, the state enjoyed a wide margin of appreciation when examining the need for an interference with freedom of expression. At the same time, where such views did not incite violence, contracting states could not restrict the right of the public to be informed of them by bringing the weight of the criminal law to bear on the media. ”

Thus far at least, it is difficult to see that Surek adds anything to the third, fourth and fifth principles set out above. To the extent that Surek calls (at [57] and [61]) for both the wording and the context of the impugned statements to be considered, I respectfully agree and would automatically assume that such an approach is to be adopted. It cannot be right to have regard to wording taken out of context; whether, of course, the context serves to aggravate or mitigate the language used (or is neutral) will be a question of fact in each case.

The reality is that Mr. Husain sought to place reliance not so much on the principle for which Surek is authority but on the decision in that case, on the facts, that Art. 10 had been violated. Necessarily, that decision was fact specific and arose out of (neutrally) the tensions between separatist aspirations of the Kurdish population of South-East Turkey and the Turkish state (of which that population was a part), together with the violent activities of the PKK, an illegal Kurdish organisation under Turkish law. The case involved the bringing of criminal proceedings under the (Turkish) Prevention of Terrorism Act 1991 against a major shareholder and the editor of a domestic Turkish weekly review in connection with interviews, inter alia, with the leader of the PKK. In the event, on the facts, the Strasbourg Court concluded that the interference with the applicants’ freedom of expression was not justified. The texts taken as a whole did not incite violence or hatred; the impugned interviews had a newsworthy content and gave the public a different perspective on the situation in South-East Turkey. For my part, I am, with respect, simply unable to derive any assistance from that decision on the facts, whatever view is taken of it. The present case does not involve criminal proceedings against those within this country; Surek was not concerned with excluding from Turkey an alien who was outside the country. The Strasbourg Court’s analysis in Surek was doubtless informed by its perception of the condition of freedom of expression on such topics in Turkey at the time (hence the reference to a “different perspective”); the decision of the SSHD here was made against the background of a society with as strong a tradition of freedom of expression as is to be found anywhere.

Cox v Turkey (supra), was also much relied upon by Mr. Husain. This case involved a ban on re-entry to Turkey of a lecturer, a citizen of the USA, who had expressed opinions on the Turkish treatment of Armenians and Kurds, as well (it would seem) on religious matters. The Strasbourg Court concluded that the ban related to the applicant’s Art. 10 rights and that the interference complained of was not necessary under Art. 10.2. Carnwath LJ has set out above (at [43]) the relevant passages of principle, found at [38] – [40] of the judgment in Cox. As to this decision:

(2) Applying the law to the facts:(A) Introduction: I turn to apply the law to the facts. There was not, as I understood it, any challenge to the rationality, legality or procedural regularity of the SSHD’s 9^th August decision. What remains is the question of proportionality. With the scope of the issue thus defined, was the SSHD justified in excluding Dr Naik from this country?

Before proceeding further:

(B) The statements and the unacceptable behaviours policy: I come to the statements of Dr. Naik (“the statements”), listed in Annex A to the SSHD’s 9^th August decision, most helpfully set out in the Appendix to Carnwath LJ’s judgment. I do not therefore set them out here. I also adopt Carnwath LJ’s numbering and, gratefully, his attribution of the provenance of the statements, so far as apparent from Dr. Naik’s second witness statement.

In considering the statements, I should make it plain that I have regard to the statements themselves, to the reasons given by the SSHD in the 9^th August decision for the decision she took and to the explanations as to the statements offered by Dr. Naik in his first and second witness statements and in the communications from his solicitors on his behalf.

In the 9^th August decision, at para. 9, the SSHD stated that:

“ (a) Dr Naik has made a number of statements that plainly fell within the Unacceptable Behaviours policy.”

In my judgment, the SSHD was manifestly entitled to take this view; for my own part, I would have difficulty understanding how any other conclusion could properly be reached.

A very few examples from the statements will suffice. As to Statement 1, the message for an audience at a public meeting is simple: “…every Muslim should be a terrorist…”. The audience at a public meeting addressed by Dr Naik cannot be expected – or safely assumed – to engage in refined textual analysis to discern that there is or may be some different message which Dr. Naik is seeking to convey. For that matter, the suggested justification for statement 1 set out at paras. 63 and following of Dr. Naik’s second witness statement is not at all persuasive; the use of the word “terrorist” to support terrorising “anti-social elements” is difficult enough to follow, even with time to analyse the written word; this convoluted explanation would simply be lost on a “live” audience. In any event, the notion that for a robber, a policeman is a “terrorist”, belongs in the realms of linguistic fantasy. In short, statement 1, conveyed to a sizeable audience at a public meeting, is plainly within, or (at the very least) capable of being treated as within, the unacceptable behaviours policy on the grounds of justifying or glorifying terrorist violence and of provoking others to commit acts of terrorism.

Much the same may be said of Statement 2, despite the efforts made on Dr. Naik’s behalf to emphasise that it pre-dated 9/11. It is unnecessary to dwell on Dr Naik’s caution as to accepting the evidence concerning Osama Bin Laden, for Dr Naik continues as follows:

“….if he [Bin Laden] is terrorising America the terrorist, the biggest terrorist, every Muslim should be a terrorist…”

Again, this statement is within the unacceptable behaviours policy; at the very least, it is capable of being read, unequivocally, as such. This statement cannot be explained with reference to policemen, robbers or anti-social elements; its message is plain. Moreover, although made before 2001, it was made in 1998 and thus (in all probability) after the murderous terrorist incidents in East Africa, resulting in large loss of life, attributed to Al Qaeda: see, para. 27(2) of the letter from the Appellant’s solicitors, dated 12^th July, 2010 (“the 12^th July letter”). In passing, it is noteworthy that the “headline” message (“…every Muslim should be a terrorist…”) is repeated, verbatim, in Statement 1, post-dating (as is common ground) 9/11.

Statement 10 conveys, on a natural meaning, the pernicious message that apostasy carries the death penalty. Read literally, there is nothing to confine this statement to Islamic states applying Islamic law; to the contrary, the more general analogy with treason is advanced by way of justification. Dr. Naik’s second witness statement is hardly reassuring; at para. 121, he says that this edited version of his interview does not portray his “complete view”; in para. 123, he asserts that the passage cited by the SSHD (i.e., Statement 10) “does not reflect my complete position”. The subtlety of Dr. Naik’s views and the expression of his personal opinion that “an apostate should [not] be put to death simply for converting his religion” would in all probability have been wholly lost on a public audience. The SSHD was clearly entitled to treat this statement as coming within the unacceptable behaviours policy on the ground that such views “foment other serious criminal activity or seek to provoke others to serious criminal acts…”. No leap of imagination is required to anticipate the potential harm of such statements in the fields of forced marriages, so-called “honour killings” and the like.

Looking at the statements as a whole, the SSHD would further have encountered the following statements amongst others:

Against this background, there was, in my judgment, an overwhelming case for concluding that the statements, considered as a whole, brought Dr. Naik clearly within the unacceptable behaviours policy. It may be noted in coming to this conclusion, I have only considered the statements (in Annex A to the 9^th August decision) and the explanations relating to them; I have not had regard to the reports summarised in Annex B to the 9^th August decision, suggesting, if somewhat nebulously, that statements made by Dr. Naik influenced some of those engaged in terrorist activity.

(C) Publicly repudiating the offending views: I turn next to the question of whether Dr Naik had publicly repudiated the views found in the statements. In her 9^th August decision, the SSHD dealt in terms with this question.

“ 8. The decision to exclude has been taken having considered a large number of comments made by Dr Naik over a number of years…… The comments considered by the Secretary of State include comments referred to in paragraph 27 of …..[the 12^th July letter]….. The Secretary of State is aware that the comments identified in paragraph 27(2) of ….[the 12^th July letter] ….. were made before 2001 (and not in 2006). They were considered in that light. Similarly, the Secretary of State is aware of comments described as condemning terrorist violence that have been made by Dr Naik. She has noted, and accepts, that he has made a number of such statements. She is also aware of, and took into account, Dr Naik’s comments about the purpose of his visit to the UK as set out in the statement of 5^th June 2010; the points raised by Dr Naik’s representatives in discussion with the Home Office and the points set out in the document dated 11^th June 2010; and the offer of an undertaking referred to in the letter of 23^rd June 2010……

9.

Her conclusions on that material are, in summary, as follows:

[sub-paragraphs 9(a) and (b) have already been set out]

(c)

The revision of the Unacceptable Behaviours policy in October 2008 highlighted the weight of the burden on those, such as Dr Naik, who have made such statements and who now seek to distance themselves from them.

(d)

Whilst recognising that some recent public statements by Dr Naik have moved away from some of the past statements (and also that some of those statements were made some years ago), the Secretary of State is not satisfied that the burden has been met. She does not consider that, viewing his statements as a whole, Dr Naik has clearly, unambiguously, consistently and publicly condemned terrorist violence and repudiated his extremist views despite the many opportunities he has had to do so. She remains to be convinced that his message is a non-extremist and conciliatory one as he now asserts. Her view remains that he might continue to communicate the sorts of views he has espoused in the past were he to be admitted to the UK.

(e)

In the light of these conclusions, she is not persuaded that the undertaking he has offered should cause her not to exclude him.

(f)

In all the circumstances, her view remains that Dr Naik’s exclusion is conducive to the public good.”

The SSHD went on (para. 10 of the 9^th August decision) to indicate that she had considered, as part of her overall judgment, the “possible escalation of community tensions” as a result of excluding Dr Naik. She took the view that “any possible risk” of such escalation (she had seen nothing to support such a risk) would be outweighed “by a greater risk of escalation of that kind” were Dr Naik to be admitted. As to those here who wished to listen to Dr Naik’s views, they could continue to do so to the extent that his views were available through publications and other media.

Applying the principles set out above, I conclude, without hesitation, that the SSHD was entitled to conclude, as she did in the 9^th August decision, that Dr Naik had not satisfied the burden of demonstrating that he had publicly repudiated the views that brought him within the unacceptable behaviours policy.

First, Cranston J’s conclusion (at [83] of the judgment), with respect, captures the essence of the matter:

“In his second statement Dr Naik condemns terrorism and seeks to explain the eleven statements which the Secretary of State has identified as objectionable by placing them in context. Nonetheless, it seems to me that the Secretary of State is entitled to conclude that Dr Naik’s explanations unjustifiably marginalise the importance of some of the statements, use semantic arguments to avoid the import of others, and fail to grapple with the substance of others. Given the importance attached to the particular legitimate aims that are being pursued, and the nature of the impact as I have characterised it, it seems to me that the interference with freedom of expression by the Secretary of State’s exclusion decision is proportionate to these aims. ”

For my part, Cranston J’s conclusion speaks for itself and it is one which I would be minded to adopt without more ado. As to the learned Judge’s decision, it is unnecessary to add more than this:

Secondly, if necessary to go further, in the light of the arguments advanced before us:

(D) Proportionality: Pulling the threads together, the SSHD determined that Dr Naik’s statements engaged the unacceptable behaviours policy and that he had not satisfied the burden of demonstrating public repudiation of those views.

As already indicated, in my view, these were conclusions to which the SSHD was entitled to come. Indeed, the more I reflect on the statements and the explanations proffered by or on behalf of Dr Naik, the more troubling I find them. Dr Naik has only himself to blame for giving the impression that his technique is to highlight a clear message, well on the wrong side of the line of the unacceptable behaviours policy, followed by dense, tortuous wording, capable of being advanced in defence of those statements when under critical examination. The lengthy explanations in Dr Naik’s witness statements follow the same pattern and, with respect, are no better. The statements could so easily have been phrased differently if Dr Naik’s message had been one of peace and reconciliation. For my part, therefore, I think the SSHD’s decision was right. But that does not matter; it likewise does not matter that views may reasonably differ; what does matter is that however critically examined, the decision reached by the SSHD was well within the wide margin of appreciation she enjoys.

Moreover, to my mind, the SSHD gave relevant and sufficient reasons for coming to her conclusion. The 9^th August decision made plain the materials which had been considered, the manner in which she had approached those materials and the reasons for her decision. I am not sure what further reasons she could have given or was obliged to give. True it is that she has not accepted protestations on Dr Naik’s behalf or the proposed undertaking at face value – but that she was on no account obliged to do.

In the circumstances, I am satisfied that the SSHD’s decision to exclude Dr Naik as “conducive to the public good” is not only entitled to great weight but is also a measure proportionate to the legitimate aims of the unacceptable behaviours policy. The conclusion as to proportionality flows from the SSHD’s answers to the anterior questions (engagement of the unacceptable behaviours policy and a failure to demonstrate repudiation of such views), together with the options realistically open thereafter to the SSHD. The necessity for restricting Art 10 rights of freedom of expression has been convincingly established in this case.

Subject therefore only to the need to say something as to the earlier decisions, I would dismiss the appeal.

Here, the position now reached may be summarised as follows:

Accordingly, I would propose that no order is made as to the earlier decisions. Should Dr Naik choose to pursue a claim in this regard, both the engagement of Art 10 (in respect of Dr Naik personally) and any justification for the earlier decisions under Art. 10.2 can be considered by the Court seized of the matter.