IN THE HIGH COURT OF JUSTICE ADMINISTRATIVE COURT BETWEEN: THE QUEEN on the application of

Case No:

(1). (2).

PAMELA GELLER ROBERT SPENCER - and -

First Applicant Second Applicant

THE SECRETARY OF STATE FOR HOME DEPARTMENT Respondent ______________________________________________ GROUNDS FOR JUDICIAL REVIEW ______________________________________________

Introduction
1. The Applicants, respected authors and human rights campaigners, apply for judicial review of a decision of the Secretary of State seeking to exclude them from the UK on the basis that their views may cause offence to Muslims and “may lead to inter community violence” in the UK. 2. The tradition of English liberty, which runs through the rule of law and political culture, is a deep one. It is traceable to John Milton’s Areopagitica, published in 1644, through to Thomas Paine’s The Age of Reason and John Stuart Mill’s On Liberty. The essence of it is best encapsulated by Mill when he wrote: “If all mankind minus one, were of one opinion, and only one person were of the contrary opinion, mankind would be no more justified in silencing that one person, than he, if he had the power, would be justified in silencing mankind”. It is with this in mind that the Court is invited to consider the decision to exclude in the present case.

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3. The decision to exclude is taken on the basis of two decision letters that are dated 25/6/2013. These rely on the unacceptable behaviour policy. This lists as unacceptable the expression of views which may lead to inter community violence.

4. The Unacceptable Behaviours Policy is based on the so called “Prevent” scheme designed to prevent the proliferation of terrorist ideologies in order to prevent terrorist acts. On the Secretary of State’s construction, it in effect permits terrorist groups to induce the Secretary of State to exclude individuals such as the Applicants from entering the United Kingdom merely by stating frequently that their views or websites are Islamophobic. 5. The application raises important issues. It is the first to challenge the legality of the Government’s Unacceptable Behaviours Policy in excluding foreign nationals. In modern times, it is the first to raise human rights accountability of the Secretary of State for her actions in excluding US nationals. 6. The previous cases heard include Geert Wilders v Secretary of State [2010] Imm. A.R. 269 (a case involving an EEA national, the exclusion of a Dutch MP who was successful in appealing the exclusion); Naike v Secretary of State [2012] Imm. A.R. 381 (a non EEA Indian national who was unsuccessful in overturning the ban); a more historic case called R v Farrakhan [2002] QB 1391 (a US national excluded from the UK, where violent protests were already taking place leading to the arrest and charge of three members of the Nation of Islam). 7. The Applicants intended to visit the UK in order to visit the English countryside and meet individuals here in the UK. Both Applicants intended to lay a wreath at the site of Drummer Lee Rigby, a soldier whose brutal murder by an Islamic extremist was televised extensively worldwide. They intended to do so as a symbolic gesture against religious extremism and violence. The Applicants’ exclusion has been published worldwide. The present claims are plainly of overwhelming public importance in relation to 2

issues concerning the legality of the Secretary of State’s policy , including its construction, and impact on civil liberties. In R (Gentle) v Prime Minister [2006] EWCA Civ 1078 at [23] the Court of Appeal granted permission to proceed by way of judicial review on the basis of the importance of the issues alone. The Court is invited to do the same in the present case and/or to grant permission on the basis that the Applicants have real prospects of success. 8. The grounds for judicial review relied upon in summary are as follows: (i). The decision to exclude was an abuse of power. The decision to exclude was capricious, arbitrary, and based upon an improper motive. (ii). The decision to exclude was unlawful and/or ultra vires. (iii). The decision was erroneous in law. (iv). The Applicants had a legitimate expectation that they would be allowed to enter and express their views in the UK pursuant to the government’s “Prevent” policy. The decision to exclude was not, therefore, permissible. (v). The decision to exclude was arrived at through a procedurally improper manner, failed to take into account and/or weigh the relevant facts and/or took into account irrelevant facts without further enquiry. The decision did not take into account the Applicants’ views regarding the exclusion. (vi). The decision was contrary to Articles 9, 10, 11, 14 and 17 of the ECHR as set out in schedule 1 to the Human Rights Act 1998 (“HRA”). (vii). The decision was irrational and/or Wednesbury unreasonable. 9. The two claims are brought together, though the views expressed by each Applicant are separate, and the decision letters are addressed separately to each Applicant. 3

10. These grounds are accompanied by evidence contained in the witness statements of the First Claimant, Ms Pamela Geller, and Mr Robert Spencer, the Second Applicant dated 6/9/2013. [Tab 5; and 6]. Background (1). Ms Pamela Geller 11. The First Applicant is an internationally recognised writer and human rights activist. She is the founder, editor and publisher of Atlas Shrugs.com. She is the President of the American Freedom Defense Initiative (AFDI) and Stop Islamization of America (SIOA). She has published innumerable books and articles on the subject of Islamic extremism. She has led awareness campaigns in relation to the same in Israel, US and the Europe. Notably, she led the fight to protect Rifqa Bary, a former Muslim (a teenage apostate) from Islamic extremism. She did this by preventing her from being forcibly returned to her Muslim parents. Rifqa Bary fled from her parents in fear for her life. 12. The First Applicant has made appearances on news media around the world. Her articles and writings have been published in newspapers worldwide the Guardian, the Los Angeles Times, Fox News, The Washington Times, Haaretz, Breitbart, Human Events, The American Thinker, Newsmax, Hudson NY, Pajamas Media, Israel National News, World Net Daily, FrontPage magazine, New Media Journal, and Canada Free Press. 13. The First Applicant has received innumerable awards for her work including the following: (i). In October 2011, the United States Marine Corps presented her with the flag flown on September 11, 2011 over Camp Leatherneck, "amid the battlefields of Afghanistan during decisive operations against enemy forces in Helmand Province." (ii). The Guardian of Liberty award from the New York N.C. Federation of Republican Women.

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(iii). The American Patriot of the Year 2013 awarded to her by the Queens Village Republican Club. (iv). The 2012 Liberty Award from the Independence Hall Tea Party Association. (v). The Annie Taylor Award for Courage in 2010 from the David Horowitz Freedom Center. (vi). The Queen Esther Award for Jewish Heroism awarded to her by the Creative Zionist Coalition. The First Applicant has published books, all of which are freely available here in the UK, for which she has received impressive reviews including the following: (1). The Post-American Presidency: The Obama Administration’s War On America. The Foreword was written by John Bolton, former US Ambassador to the United Nations. Brad Thor, the Times best-selling author of Foreign Influence, described this book as “Sheer brilliance”. The book has been reviewed by other best-selling authors who have described it as “must read”1 and an “excellent book”.2 (2). Stop the Islamization of America: A Practical Guide to the Resistance (WND Books, September 6, 2011). This book has been reviewed by Dr. Wafa Sultan, former Muslim and author of “A God Who Hates”. She states “This book fills an urgent need. Pamela Geller has brought together all her experience fighting the stealth jihad and Islamization to create the first practical guide to stopping the spread of Sharia and Islamic supremacism in America. Every patriot, everyone who loves the freedom we enjoy in America, must get this book and use it to equip themselves for the great struggle that lies ahead.” Others have reviewed the book and described it as follows:
Andrew C. McCarthy, National Review legal affairs editor and bestselling author of Willful Blindness: A Memoir of the Jihad)
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David Horowitz, conservative activist, co-author of Destructive Generation and author of Radical Son).
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“Geller is a forceful and courageous voice, providing in this powerful book a democratic defense to fight the stealth jihadist threat against civilization”.3 “An essential handbook for every freedom fighter.”4 It is important to note that, in this book, the First Applicant provides advice to activists. She condemns incitement of hatred or violence as follows: “Do not say things or chant slogans that can be construed as racist or inciting to violence… Use your common sense: don’t say anything that contradicts your own most cherished beliefs and principles. Remember always that you are fighting for human rights and human dignity. This doesn’t mean that we say, or that we believe, that we hate Muslims or want to kill all Muslims – contrary to the mainstream media’s caricature of our position” (pp44-5). [Tab 5, para 14, 192]. (3). Freedom or Submission: On the Dangers of Islamic Extremism and American Complacency (E-book, Create Space Independent Publishing Platform, April 3, 2013). 14. Contrary to the assertion in the Secretary of State’s refus al letter dated 25/6/2013 (Tab 2), the First Applicant does not operate a website called Jihad Watch. She operates the Atlas Shrugs website. On the Atlas Shrugs website, she has published her comments on Islam. These include the following comments, which are readily available in the UK, but selectively included in the refusal letter, dated 25/6/2013, in text marked bold below: Comment 1 1. “Obama would speak only about ‘al-Qaeda.’ Al-Qaeda is a manifestation of devout Islam. Just as Hamas, Hezb'allah, alMuhajiroun, The Armed Islamic Group, the Moro Islamic Liberation Front, MILF, CAIR, ISNA, Fatah, the Muslim Brotherhood, al-Gama'a al-Islamiya,

– Bat Ye’or, eminent historian, author of eight books, including Eurabia: The Euro-Arab Axis; Islam and Dhimmitude: Where Civilizations Collide; The Decline of Eastern Christianity Under Islam: From Jihad to Dhimmitude; and The Dhimmi: Jews and Christians Under Islam.
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Robert Spencer.

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the Armed Islamic Group of Algeria... It is Islam. And by refusing to name the enemy, Obama has perpetrated yet another devastating attack on American security.” This quote is explained by the First Applicant, as part of her fight against extremism, as follows in her witness statement: “This was referring to the fact that al-Qaeda makes recruits among peaceful Muslims and justifies its actions by appealing to Qur’anic teaching. It presents itself as the true manifestation of devout Islam, and moderates have as yet mounted no effective rejoinder to that. Thus for Obama to limit the fight to al-Qaeda when other Muslim groups share the same views is short-sighted. Muslims who genuinely reject the al-Qaeda version of Islam need to confront al-Qaeda’s appeal to the devout much more honestly and thoroughly than they have thus far”. [Tab 6, 196]. Comment 2 “The conquest of Israel would indeed be nothing more than the conquest of the good. That piece of beach, that narrow strip of land, produces no oil, gold, or any other valuable resources. It, however, holds the Jewish people. The Islamic world knows that getting control of that tiny patch of land is meaningless; it is getting the Jew out that will be the victory for the forces of evil. However, if the Jew dies, the Muslims will die as well: their survival depends on their constant jihad, because without it they will lose the meaning and purpose of their existence. And so it goes. It is a neverending struggle. And it is one in which the lines are drawn quite clearly. All decent people, all free people, whether or not they are religious, must stand with Israel. It is a matter not only of the survival of the Jewish people, but of the survival of all free people, and, indeed, the principle of freedom in the world.” The First Applicant has explained this quote in her witness statement as follows: “This quote was from an article… about the jihad against Israel referring to Hamas and Hizballah. The reason for their existence is solely for the 7

destruction of the Jewish State. Without that objective, they cease to exist. As is clear from the context, the phrase “However, if the Jew dies, the Muslims will die as well” was referring specifically and solely to the jihad groups arrayed against Israel, not to all Muslims”. [Tab 6, 196]. (2) Mr. Robert Spencer 15. The Second Applicant is an internationally recognized author and a human rights activist. He is the director of an organization called Jihad Watch and Associate Director of the American Defence initiative. He wrote his first of twelve books about Islam after the 9/11 attacks, and is currently working on a book about the Arab Spring and its aftermath. He has since led seminars on Islam and Jihad for official US Government bodies. These include: the United States Central Command, United States Army Command and General Staff College, the U.S. Army’s Asymmetric Warfare Group, the FBI, the Joint Terrorism Task Force, and the US intelligence community. The seminars were hosted by, among others, former FBI agent Mr. John Guandolo and U.S. Army Colonel Herman Nordbruch. 16. The Second Applicant is widely published. His publications include the following books, freely available in the UK, for which he has received impressive testimonials as outlined in his witness statement: Islam Unveiled: Disturbing Questions About the World's Fastest Growing Faith (Encounter, 2002); Onward Muslim Soldiers: How Jihad Still Threatens America and the West (Regnery, 2003); Inside Islam: A Guide for Catholics (with Daniel Ali, Ascension, 2003); The Myth of Islamic Tolerance: How Islamic Law Treats Non-Muslims (Prometheus, 2004); The Politically Incorrect Guide to Islam (and the Crusades) (Regnery, 2005); The Truth About Muhammad (Regnery, 2006); Religion of Peace? Why Christianity Is and Islam Isn't (Regnery, 2007); Stealth Jihad: How Radical Islam is Subverting America without Guns or Bombs (Regnery, 2008); The Complete Infidel's Guide to the Koran (Regnery, 2009); The Post-American Presidency: The Obama Administration's War On America (with Pamela Geller, Simon & Schuster, 2010); Did Muhammad Exist? An Inquiry Into Islam's Obscure Origins (ISI, 2012); and Not Peace But A Sword: The Great Chasm Between Christianity and Islam (Catholic Answers, 2013). 8

17. The testimonials he received are more fully stated in his witness statement, but include the following: 1. Not Peace But a Sword. “Robert Spencer is a careful observer of Islam and a courageous voice on behalf of Christians. In his new book, Not Peace But a Sword, he shows Catholics how to take Islam seriously without falling into alarmism, hatred, or bigotry. He provides a needed corrective to the misinformation and disinformation propagated by so many media today.” -- Scott Hahn, author of The Lamb's Supper, Understanding the Scriptures and many other books. 2. Did Muhammad Exist? “The great service Spencer provides goes beyond popularizing the critical study of one of the world’s largest religions in order to advance our knowledge and establish historical reality”. Bruce Thornton, Research Fellow at Stanford’s Hoover Institution and Professor of Classics and Humanities at the California State University. “Robert Spencer has displayed brilliant scholarship”. Bat Ye’or, author of The Decline of Eastern Christianity under Islam. 3. The Complete Infidel’s Guide to the Koran. “For 1,400 years Muslim leadership spread misinformation and covered up what is in the Koran, even criminalizing exposing the truth or asking questions. The truth is too scary for many, both Muslims and non-Muslims. I thank Robert Spencer for bringing the truth of what is in the Koran to non-Muslims.” — Nonie Darwish, ex-Muslim and author of Now They Call Me Infidel. “In an informed, sardonic antidote to the usual soft-peddling of the Koran, he concludes that its actual contents should alarm infidels and prompt them to defend their ‘freedom of speech, freedom of conscience, and the legal equality of all people.’ — Daniel Pipes, director, Middle East Forum.

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4. Stealth Jihad. “Robert Spencer makes a solid case that the major threat to our way of life does not come solely from those radical Islamists who embrace violence and terrorism. It also comes from those who do not accept that they must live side-by-side on a basis of equality with those of other faiths in a civil society and who instead work in multiple ways toward obtaining special standing for Islam in our society and, ultimately, toward theocracy. A vital wake-up call of a book.” — R. James Woolsey, former director of Central Intelligence. 5. Religion of Peace?. “Brilliantly written and argued” Ann Coulter. “Spencer’s thought-provoking book persuasively demonstrates the ways in which Western civilization, rooted as it is in the JudeoChristian tradition, is profoundly different from the model of society dictated by Islamic sharia. Rich in its insights and analysis, this is a book that should be read and appreciated by Christians and Jews alike.” — Rabbi David G. Dalin, author of The Myth of Hitler’s Pope. 6. The Truth About Muhammad. “Intrepid Robert Spencer continues his quest to dispel myths, cure ignorance, and open our eyes to hard truths about Islam. Spencer trades platitudes for scholarship; delusions for reality. If we are going to win ‘the War on Terror,’ we need to know how Muhammad really lived — and why he endures as the inspiration for global jihad. This book is a threat to ‘religion of peace’ propaganda that lulls the West into submission. Strike a blow for survival: buy it.” — Michelle Malkin, nationally syndicated columnist and bestselling author of Unhinged, In Defense of Internment, and Invasion. 18. The Court is referred to the Second Applicant’s witness statement for further information on the Second Applicant’s published books and reviews. [Tab 5]. 19. The Second Applicant is portrayed by the Secretary of State as saying the following:

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“‘[Islam] is a religion and is a belief system that mandates warfare against unbelievers for the purpose for establishing a societal model that is absolutely incompatible with Western society because media and general government unwillingness to face the sources of Islamic terrorism these things remain largely unknown.’” [Tab 2, 74]. 20. This comment is alleged by the Secretary of State to provide a basis for exclusion, though it did not prevent the Second Applicant from entering the UK in 2009. As the Second Applicant explains in his witness statement: “This is a mangled transcription of a statement I made in the documentary Islam: What the West Needs to Know. The Home Office’s footnote comes from a You Tube video trying to claim that I am responsible for murders committed by a madman in Norway who cited me along with innumerable others in a lengthy and incoherent document. I filmed the interview for the documentary in Los Angeles in summer or fall 2004. Others, including Bat Ye’or, Serge Trifkovic and Walid Shoebat are also featured in the documentary, which is still available for purchase at Amazon.com and elsewhere. This video did not prevent my visit from taking place in the UK in 2009”. [Tab 5, 107]. 21. The Second Applicant, in his witness statement, then provides the evidential basis upon which the above comments are made. He provides detailed support for those comments in the Quran and Islamic jurisprudence which can be, and are, used by extremists. 22. It is wholly misleading to assume that the Applicants are critical of all Muslims. They are not. As the First Applicant puts it in her witness statement: “Neither Robert nor I are critical of all people who describe themselves as Muslims. On the contrary, the first effort on which 11

Spencer joined my efforts was an attempt to obtain a tombstone for a Muslim honour killing victim, Aqsa Parvez, who had been buried in an unmarked grave. I have come to the aid of numerous Muslims who faced difficult situations in their families for staying from strict adherence to Sharia. I do not oppose Islam as such and certainly not Muslims as such; any Muslim who renounces Jihad violence, Islamic supremacism, Islamic anti-Semitism and the other elements of Islamic law that are at variance with universal principles of human rights are invited to stand with us”. [Tab 6, 197]. The facts Events leading to the exclusion 23. Drummer Lee Rigby of the Royal Regiment of Fusiliers was killed near his army barracks in Woolwich by an Islamic extremist. The First and Second Applicants intended to visit the UK. They intended to see the English countryside and visit Buckingham Palace. Both intended to lay a floral wreath at the site of Mr Rigby’s murder on Armed Forces Day as a symbolic gesture on behalf of their country’s struggle against extremism and terrorism. 24. Both Applicants intended to do so in the company of other freedom activists from around the world who intended to pay their respects to Lee Rigby, including Ashraf Ramelah, president of Voice of the Copts. The Applicants intended to leave New York from John F. Kennedy Airport on Thursday 27 June 2013 arriving in London on Friday June 28. They planned to leave the UK on June 30 2013. 25. Tommy Robinson and Kevin Carroll of the English Defence League intended to participate in a charity walk. The Applicants had no intention of participating in that walk. The Applicants intended to meet Tommy Robinson and Kevin Carroll and others after the charity walk at the site of the memorial to Lee Rigby.

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26. A floral arrangement was obtained in the form of US Star and Stripes. These flowers were in fact placed at the site after the Applicants’ exclusion without any violence or public disorder. 27. Mr Robinson and Mr Carroll did undertake a charity walk. They were peacefully arrested for attempting to walk through Tower Hamlets. The legality of the arrest is unclear. Tower Hamlets is said to be a Muslim area. Despite this, there was no backlash from Muslims. No real incident of public disorder has been reported. Nevertheless, neither Applicant had any intention of visiting Tower Hamlets. 28. Both Applicants have no previous convictions. They have no cautions, warning or reprimands. Both condemn violence. The exclusion Background The Metropolitan Police request for exclusion on 24 June 2013 29. By a letter dated 24/6/2013 addressed to the Home Secretary, the Metropolitan Police (MP) enclosed representations seeking the Applicants’ exclusion; it being alleged that the Applicants have been forthright about their views about the Islamic community and have been considered to be provocative. [Tab 5, 149]. 30. The commander of the mission states that the Leader of the Council and the Chief Executive have informed him that, if the Applicants were “allowed to address a rally on Saturday”, they will be making cross party and community representations to the MPS on 25/6/2013. The identities of the Leader of the Council and the Chief Executive are not revealed. 31. It is evident from the redacted and non-transparent representations that the MP made an application to the Home Office to exclude the First and Second Applicants on the basis that their visit will inflame community tensions and may result in significant public disorder. The 13

redactions themselves seek to hide the identity of those parties that the Secretary of State does not wish to associate with in public. 32. The basis for the request for exclusion is that the Applicants are antiIslamic. It is said that this increases the risk of disorder, as it is likely to augment the number of people who attend in order to oppose the EDL event, including Muslims and pro-Palestinian groups. 33. The MP cite cases where “the policing minister” in October 2012 had to ban a planned EDL march in Walthamstow, citing “public safety concerns”. It cites other EDL events where it had to curtail EDL gatherings through the deployment of the police force at expense. The evidence against the First Applicant 34. The redacted and non-transparent submissions document dated 20 June 2013 refers to the following evidence against the First Applicant [Tab 6, 232]: 1. The First Applicant, through the American Freedom Defense initiative (AFDI), was responsible for a widely circulated poster stating “in any war between the civilized man and the savage, support the civilized man. Support Israel. Defeat Jihad” which the US Court found “was permissible under the First Amendment ground” [para 5]. 2. The First Applicant is said to have defended the advert through the following statement: “The premise of my ad was that a war on innocent civilians is savage… As long as the Palestinian Authority continues its savage policy to foment violence, promote hatred and teach Palestinian children to hate, the number of young Muslims willing to blow themselves up or to slit Israeli throats will continue to increase. That is savage. The Palestinian Authority propaganda of Holocaust denial calls for the killing of the Jews and glorification of bloodthirsty jihad is savage”. [para 5] 14

3. Although the First Applicant’s writings “do not appear to promote violence against Muslims”, the MP submission states that the First Applicant “expresses views which meet the unacceptable behavior criterion of fostering hatred which might, should she visit the UK, lead to intercommunity violence in the UK”. [para 7]. 4. It is alleged that “there is a strong possibility that moderate and law-abiding members of the UK muslim community and other UK citizens would find Geller’s views offensive and take strong exception to her having a public platform”. [para 7]. This is despite the fact that there was no evidence of or prior history of imminent and/or uncontrolled violence. 5. It is alleged that the First Applicant’s Article 10 rights were outweighed by “potential adverse consequences of Geller being permitted to visit the UK in order to speak at the demonstration”. [para 7]. The Applicants had no plans, however, to hold a demonstration. No separate consideration is given to the First Applicant’s rights under s.29 J of the Race and Religious Hatred Act 2006 and/or her other convention rights. 6. It is suggested that “some individuals in the Jewish community may object [to the exclusion – emphasis added]: either out of direct sympathy for them (less likely) or due to a perception of double standards (more likely)” [para 9]. 35. The redacted and non-transparent case research and analysis report, marked Annex A, upon which the above submission is based states the following against the First Applicant [Tab 6, 237]: 1. The First Applicant is a “high profile figure in the counter jihadist movement” and responsible for an advertising campaign in support of Israel [page 237, 238]. 2. The First Applicant states “the only good Muslim is one who doesn’t want to commit jihad and subjugate unbelievers, doesn’t

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want to impose the sharia on non-Muslims, doesn’t want to subjugate women, and doesn’t hate Jews” [page 240]. 3. The First Applicant is opposed to burning of religious books and “does not advocate violence” and states “Al-Qaeda is a manifestation of devout Islam” [page 241]. 4. The First Applicant “advocates defence against the spread of extremist Islam”. [page 243]. 5. The First Applicant “gives a tolerant message after her comments have been challenged”. [page 243]. 6. “Despite her attempts to explain some of these statements, there is a strong possibility that there are Muslim and other UK residents who would take exception to her having a public platform to espouse her views”. [page 243]. 7. The First Applicant does not meet the threshold for exclusion under the unacceptable behaviours policy elements relating to terrorism and serious criminal activity or provocation of others to serious criminal acts. [Page 243]. 8. The First Applicant, it is said, “as such…reaches the threshold for exclusion from the UK under the following element of the “unacceptable behavior policy: ‘public speaking which fosters hatred which might lead to inter-community violence in the UK’”. [page 243]. The evidence against the Second Applicant 36. The redacted and non-transparent submissions against the Second Applicant dated 21/6/2013 state [Tab 5, 135]: 1. The Second Applicant is “a best-selling author and founder of the blog Jihad Watch (a site widely criticised for being Islamophobic) who is known for his criticism of Islam, Islamic terrorism and jihad ideology”. [para 4]. 16

2. The Second Applicant is “influential and high profile”. [para 4]. 3. It is said that “moderate and law abiding members of the UK Muslim community and other UK resident would find Spencer’s view offensive and would take strong exception to him having a public platform to espouse his views” [para 6]. 4. The Second Applicant’s writings are said to have inspired a Norwegian terrorist Anders Breivik. [para 5]. 5. The following statement made by the Second Applicant in a You Tube interview is said to come within the exclusion under the unacceptable behavior criteria: “It [Islam] is a religion and is a belief system that mandates warfare against unbelievers for the purpose of establishing a societal model that is absolutely incompatible with Western society because media and general government willing to face the sources of Islamic terrorism these things remain largely unknown”. [para 5] 6. The Second Applicant has published numerous articles and blog postings, highlighting the threat of Islam and “some individuals in the Jewish community may object to the exclusion either out of direct sympathy for them (less likely) or due to a perception of double standards (more likely)”. [para 8]. 7. The Second Applicant may choose to publicize his exclusion on the basis of his support for Israel. [para 7]. 37. The redacted and non-transparent case research and analysis report on the Second Applicant states [Tab 5, 139]: 1. The Second Applicant is “a well known American author that includes two New York Times best sellers, and blogger known for his criticism of Islamic terrorism, jihad, and conspiracy theories”. [page 140]

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2. The Second Applicant’s blog is “considered to be a significant site that opposes Jihad” and had “won the people’s choice blog award”. [pages 140, 142]. 3. The Second Applicant “is to some extent respected as a commentator on Islam and Islamism/jihad” but is a “controversial character”. [page 148]. 4. “There are sufficient grounds to exclude the subject from the UK under the UK policy because his published works and presence at the EDL rally could foster hatred which might lead to intercommunity violence in the UK” (see assessment and recommendation section, page 140). 5. In a You Tube interview the Second Applicant describes the Norwegian terrorist as “a psychopath” and states that any Muslims who reject war against unbelievers “I count as an ally in the defence of freedom”. [page 144]. 6. The Second Applicant has visited the UK and spoken with the First Applicant at an event in relation to which there were “peaceful protests against Geller and the subject [i.e. the Second Applicant] in Stockholm in 2012”. [page 146]. 7. “How he might be perceived in the Muslim community that would appear to be the central issue here” and that “it is fair to conclude that many Muslims, including those termed ‘moderate’, would find his presence in London, and the UK in general, offensive. Under the UB (unacceptable behavior policy) 2005 it is reasonable to conclude that Spencer’s exclusion from the UK is justified because he has published or said (and will continue to do so) words that foster hated which might lead to inter community violence in the UK”. [148]. Again this is stated without any evidence of imminent and/or uncontrolled violence. 8. It is alleged the Second Applicant’s Article 10 rights are outweighed by the potential adverse consequences of the Second Applicant being 18

allowed to speak at the demonstration.[page136]. No separate consideration is given to the Second Applicant’s rights under section 29J of the Race and Religious Hatred Act 2006 and/or his other convention rights. The exclusion letters [Tab 2, 73-76] 38. By a letter dated 25/6/2013 addressed to the First Applicant, the Secretary of State personally directed (though the letter is signed on her behalf) in so far as material as follows: “I am writing to inform you about the British government’s measures for excluding or deporting extremists under the Unacceptable Behaviour policy. The list of unacceptable behaviours covers any non-UK national whether in the UK or abroad who uses any means or medium … to express views that… foster hatred which might lead to inter-community violence in the UK… The Home Secretary notes that you are a prolific blogger, author, political activist and commentator. You co-founded Stop Islamisation of America, an organisation described as an anti Muslim hate group. You also operate a number of websites including Jihad Watch and Atlas Shrugs. You are reported to have stated the following: Al-Qaeda is a manifestation of devout Islam…it is Islam. If the Jew dies, the Muslims will die as well: their survival depends on their constant jihad, because without it they will lose the meaning and purpose of their existence. The Home Secretary considers that should you be allowed to enter the UK you would continue to espouse such views. In doing so, you will be committing listed behaviours and would therefore be behaving in a way that is not conducive to the public good. You are therefore instructed not to travel to the UK”. 39. By a letter dated 25 June 2013, addressed to the Second Applicant, the Secretary of State personally directed (though the letter is signed on her behalf) in so far as material as follows: 19

“I am writing to inform you about the British government’s measures for excluding or deporting extremists under the Unacceptable Behaviour policy. The list of unacceptable behaviours covers any non-UK national whether in the UK or abroad who uses any means or medium … to express views that… foster hatred which might lead to inter-community violence in the UK.. The Home Secretary notes that you are the founder of the blog Jihad Watch (a site widely criticized for being Islamophobic). You co-founded the Freedom Defense Initiative and Stop Islamization of America, both of which have been described as anti Muslim hate groups. You are reported to have stated the following: “It [Islam is a religion and is a belief system that mandates warfare against unbelievers for the purpose for establishing a societal model that is absolutely incompatible with Western society because media and general government unwillingness to face the sources of Islamic terrorism these things remain largely unknown. The Home Secretary considers that should you be allowed to enter the UK you would continue to espouse such views. In doing so, you would be committing listed behaviours and would therefore be behaving in a way that is not conducive to the public good. You are therefore instructed not to travel to the UK as you will be refused admission on arrival..”. 40. The Applicants wrote a pre-action letter challenging the exclusion on 3/7/2013. [Tab 3]. By a response dated 12/7/2013, the Treasury Solicitors sought an extension of time within which to respond contending that the Respondent will not rely on any delay defence. That request was duly granted by the Applicants. By a letter dated 2/8/2013 (received 5/8/2013), the Secretary of State wrote seeking to justify the decision on the basis of the “Prevent” strategy, contending that there was no breach of the ECHR rights relied upon by the Applicants. [Tab 4]. The Secretary of State expressly contends the decision to exclude the Applicants “was taken in accordance with the governments ‘Prevent’ strategy for combating extremism and/or terrorism”. This makes it clear that, in order to prevent terrorism, it is 20

necessary to combat extremist ideologies and that the Secretary of State has identified a number of “unacceptable behaviours” which pose a threat to public safety, including the expression of views which “foster hatred which might lead to inter community violence”. It is alleged by the Secretary of State that the assessment of the Secretary of State is reasonable. It is alleged by the Secretary of State that the unacceptable behaviours policy is lawful (even though it runs contrary to the objectives of Prevent). It is not suggested that it has been approved by Parliament. The Secretary of State alleges that there exists no actionable breach of the Applicants ’ convention rights. GROUNDS Abuse of power 41. The Secretary of State’s decision to exclude the Applicants constitutes an abuse of power because the Secretary of State relies on the power to curtail terrorism and terrorist ideology for the collateral purpose of excluding the Applicants and/or on policies which fail the test for legal certainty. 42. The decision to exclude the Applicants is based on the Unacceptable Behaviours Policy made under the government “Prevent” and “Contest” policies. [Tab 7, 8]. As reflected upon above, these apply only to combating terrorism through dealing with terror suspects and/or those extremists who encourage terrorism. There is no power under “Prevent” to exclude nonterror suspects such as the Applicants who are in effect assisting the Home Secretary in the implementation of the “Prevent” policy by opposing Islamic extremists and terrorists in their writings. The Applicants are not promoting ideas which can be said to form part of a terrorist ideology. The “Prevent” policy itself states that “we remain absolutely committed to protecting freedom of speech in this country, but preventing terrorism will mean challenging extremists (and non-violent ideas that are also part of a terrorist ideology)” (3.10). It is to be noted that the “Prevent” policy does expressly state “The Terrorism Act of 2006 established offences which in effect relate to Prevent” (6.13), though the policy does not state the enabling provisions under which it is made. If the power to exclude exists under 21

“Prevent”, it is limited to those cases which encourage terrorist ideology. This is evident from Hansard, where the Secretary of State states: “Prevent provides a template for challenging the extremist ideas and terrorist actions which seek to undermine the rule of law and fundamental British political values and institutions… So where propagandists break the law in encouraging or approving terrorism, it will mean arrest and prosecution, and where people seek to enter this country from overseas to engage in activity in support of extremist or terrorist groups, we will exclude them. Since coming to power, I have already excluded 44 individuals from the UK either because of unacceptable behaviour or for national security reasons”. [Hansard 7 June 2011, Columns 52/53]. 43. The Unacceptable Behaviours Policy, therefore, does not permit the exclusion of the Applicants who do not, on the evidence, fall within the “Prevent” policy. If it were otherwise, terrorists could induce the Secretary of State to exclude those who are said to be Islamophbic. The policy can thus be used to divorce the right to visit from any impropriety whatsoever on the part of the persons to be excluded. “The “Prevent” policy is only limited to possible terrorist activities and their encouragement. The post decision letter of the Secretary of State dated 5/8/2013 admits that the inter community violence clause in the Unacceptable Behaviours Policy goes contrary to the objectives of “Prevent”. [Tab 4, 83]. Accordingly, this is a classic case where the Secretary of State is exercising her powers for an extraneous purpose, in that she is using her powers provided to curtail terrorism for a collateral object: that is, for the purposes of excluding foreign nationals by dangerously curtailing their freedom of expression and/or other freedoms on a personal whim: a clear abuse of power. As Lord Bingham held in R (Gillan) v Comr of Police of Metropolis [2006] 2 AC 307: “the Public must not be vulnerable to interference by public officials acting on any personal whim, caprice, malice, predilection or purpose other than for which the power was conferred. This is, what, in this context, is meant by arbitrariness..” 346, F. 22

44. This is particularly true when the Secretary of State seeks to rely on s. 3 (1) of the Immigration Act 1971 in order to legitimise the exclusion under the “Prevent” strategy. S 3 (1), however, does not permit the enactment or interpretation of policy to exclude individuals such as the Applicants whose views are conducive to the public good within the meaning of s.3 (1) and/or in accordance with the law. The Applicants’ views are either permissible under s.29 J of the Race and Religious Hatred Act 20065 and/or under the “Prevent” policy since their views target Islamic extremism and are protected under s. 29 J referred to above. Any order made by the Secretary of State under s. 3 (1) (a) has to comply with section 29 J. Otherwise, it would be ultra vires: see Laker Airways v Department of Trade [1997] QB 643 referred to in para 66 below.

45. In Galloway v London Corp (1866) L.R. 1 HL 34, at 43, it was held that the Secretary of State cannot exercise its discretionary powers for any collateral object. The Courts have more historically held that it is unlawful to exercise a power for unauthorised purposes: see R v Secretary of State for Foreign Affairs Ex p. World Development Movement [1995] 1 W.L.R 386; R v Somerset CC Ex p. Fewings [1995] 1 WLR 1037. In the World Development case, it was held that the minister’s dominant purpose in funding the uneconomic project was not the authorised one of furthering the economy or welfare of the people of Malsia. In Somerset, it was held that the dominant purpose of fulfilling the ethical perceptions of councillors did not fulfil the authorised statutory purpose, namely the improvement of the amenity of the area. It is “for the Courts and not the Secretary of State to determine whether the conduct is within the statutory purpose”: see the World Development case.

46. Accordingly, the power has not thus been validly exercised since it is exercised for a collateral and/or unauthorised purpose.

5

See para 64 below.

23

47. The Prevent and Unacceptable Behaviours policies, moreover, do not pass the test for legal certainty (see para 97 (4) below). It is not clear under which statutory provision the “Prevent” policy is enacted and can be modified to allow exclusion of foreign nationals who do not promote any terrorist ideology. The same applies to the Unacceptable Behaviours Policy. Consequently, it is an abuse of power to rely on these policies to exclude the Applicants, particularly when the Applicants have a legitimate expectation to enter the UK on the basis of these policies (see legitimate expectations ground below) and oppose the same behaviours targeted in the Prevent policy. In her post decision letter, the Secretary of State accepts that the Unacceptable Behaviours Policy list is not a requirement itself to be satisfied. Ironically, however, her decision letters dated 25/6/2013, referred to above, state the opposite. This is evident from the following words in the two respective decision letters: “The Home Secretary has reached this decision because you have brought yourself within the scope of the list of unacceptable behaviours”.

Article 17 of the ECHR 48. Article 17 of the ECHR in so far as material states:

“Nothing in this Convention may be interpreted as implying for any State, group or person any right to engage in any activity or perform any act aimed at the destruction of any of the rights and freedoms set forth herein or at their limitation to a greater extent than is provided in the Convention”. 49. Given that the exclusion orders constitute an abuse of power; this article is engaged, particularly since the Applicants oppose violence. Article 17 precludes any interference with Applicants’ Article 10 rights to protect religious minorities under Article 9 of the ECHR. Consequently, the Secretary of State cannot rely on the rights of minorities, particularly in relation to causing them offence.

24

Illegality 50. The exclusion based on the Unacceptable Behaviours Policy is unlawful and
ultra vires since the so-called “Prevent” policy does not provide for it and it has not been suggested by the Secretary of State that the Unacceptable Behaviours Policy has been approved by Parliament. The Applicants rely on the following reasons: 1. For the reasons referred to in paragraphs 41-46, there exists an abuse of power. 2. The “Prevent” policy has not been enacted under s.3 (1) of the Immigration Act 1971 and/or under any other enabling provision in primary legislation. 3. Even if the “Prevent” policy is made under s. 3 (1) of the Immigration Act 1971, as implicitly claimed by the Secretary of State in her reply to the Applicants’ pre-action letter, the “Prevent” policy is not a concessionary policy. Rather it is a policy which introduces an absolute discretion as to the circumstances in which the Home Secretary can exclude individuals from the UK. The Secretary of State in her post decision letter states the Unacceptable Behaviours Policy is not “exhaustive”. [Tab 4, 84]. This means that it has shifted from a policy to the conferral of unilateral power to exclude at will. The Unacceptable Behaviours Policy, therefore, amounts to a statement “as to the practice to be followed” regarding exclusion of individuals at will. Consequently, it constitutes an “immigration rule” within the meaning of the Immigration Act 1971 s. 3 (2) and must be approved by Parliament: see Munir v Secretary of State for the Home Department [2012] 1 WL.R. 2192; The Alvi case [2012] 1 WLR 2208. In her reply to the Applicants pre action letter, the Secretary of State has not suggested that the policy has been approved by Parliament. In Naike v Secretary of State [2011] EWCA Civ 1546, although the legality of the unacceptable behaviours policy was not challenged by 25

the Appellant, the Secretary of State did not suggest that it had been approved by Parliament through the negative resolution process.6 Consequently, the unacceptable behaviours policy is unlawful. 4. The Secretary of State’s explicit reliance on the “Prevent” policy to retrospectively justify the Applicants exclusion under the Unacceptable Behaviours Policy renders the decision unfair (see the post decision letter of the Secretary of State dated 5/8/2013). This is because it does no more than pick and choose policies that match its restricted powers to exclude under s.3 (1) of the Immigration Act 1971. 5. Exclusion under “Prevent” has not been placed on a statutory footing which is necessary to provide the Secretary of State expressed powers of exclusion. At present, the “Prevent” policy is being used to confer a power on the Secretary of State to legislate – a power which is unconstitutional and ultra vires - legislative power is the prerogative of Parliament. 51. It is clear that the requirement of conducive to the public good in immigration rule 320 (6) fetters the Secretary of State’s discretion and is incompatible with a position of absolute power which the policy seeks to import. 52. The Unacceptable Behaviours Policy amounts to a change in immigration rule 320 (6) without grant of Parliament and therefore is unlawful. It introduces wording and listed behaviours not found in rule 320 (6). It enables the Secretary of State to exclude non-UK nationals in circumstances where rule 320 (6) does not.

6See

paras 16 and 65. The Court of Appeal merely held that “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” (para 16).

26

53. Rule 320 (6) permits exclusion of a non-UK national where the exclusion is not conducive to the public good without specifying listed behaviours contained in the Unacceptable Behaviours Policy or containing the provision referring to views which “might lead to inter community violence” (“the inter community violence provision”). 54. Rules 320 (6) has to be construed compatibly with article 10, 11, 9, 17 and 14 of the ECHR. It does not permit premature pre-emptory exclusion of non-UK nationals without the deployment of law enforcement to curtail the perceived threat to the peace or public order. This is evident from the decision of the House of Lords in R v Laporte [2007] 2 A.C 105.

55. R v (Laporte), concerned a challenge to the decision to exclude the Appellant from a lawful protest. The decision to exclude was taken on the basis that his lawful presence may lead others at some time in the future to breach the peace. Their Lordships (Lord Bingham, Lord Roger, Lord Carswell and Lord Mance) held that the police action to exclude the Appellant from a lawful assembly, on the basis that others might have behaved unlawfully, was premature. It was, therefore, disproportionate. The breach of peace was not sufficiently imminent to justify an arrest.

56. In R v (Laporte), their Lordships House held that a threshold test of imminence must be passed before action may be taken to prevent a breach of the peace. Once that test of imminence is passed, reasonably necessary action to prevent a breach of peace can only be taken where it is proportionate to do so. Per Lord Bingham, at paras 39-40 and 46-49, Lord Roger at para 62, Lord Craswell para 101, Lord Brown at para 114, and Lord Mance at para 141.

57. Lord Mance ruled in R (Laporte) at para 141. “I regard the reasonable apprehension of an imminent breach as an important threshold requirement, which must exist before any form of preventative action is permissible at common law. Where a reasonable 27

apprehension of an imminent breach of peace exists, then the preventative action taken must be reasonable and proportionate”. 58. In determining whether a breach of peace was imminent, an essential condition is the “immediacy of the threat to the peace” in the sense of “close proximity both in place and time” (see per Lord Carswell in R v Laporte, page 148, C-D; and Lord Bingham at page 130, paras A-B citing Moss v McLachlan [1985] IRLR 76). 59. Lord Mance ruled at 141. “The requirement of imminence is relatively clear-cut and appropriately identifies the common law power of last resort catering for situations about to descend into violence”. 60. Referring to the action taken by the respondent to exclude lawful protesters on the ground of a threat of violence from third parties, Lord Mance ruled at 161 E-F as follows: “... the action taken was premature – taken at a time when a breach of peace was not imminent. (In fact, for the reasons which will appear in paras 152 – 154, I would not anyway accept that the suggested difficulty and need existed”. 61. His Lordship continued at 152 -154: “...152 the question then is whether the preventive action actually taken is justified so far as it concerned the claimant, Ms Laporte. In my opinion it was not, because it has not been shown to have been either reasonable or proportionate... 62. It is evident from the Judgment of Lord Bingham at page 131 A-B “it is not enough to justify action that a breach of peace is anticipated as a real possibility”. His Lordship held at para 50 the intervention by the authorities cannot occur when the action is short of arrest, thereby 28

acknowledging that intervention on imminent breach of peace can only take place where the action in question is unlawful. 63. The policy seeks to circumvent these limitations in Rule 320 (6) by introducing, without Parliamentary approval, a non-exhaustive list of unacceptable behaviours. This provides the Secretary of State with an absolute discretion to exclude those exercising offensive speech which “may” lead to a breach of peach or public disorder offences under part 3A of the Public Order Act 1986 (as in this case). The important test of lawfulness referred to in Laporte has, therefore, been abrogated. 64. The application of the policy in this way clearly offends the statutory context in which the powers are to be exercised, namely the ECHR limitation in 320 (6) referred to above and the provision of 29J of the Race and Religious Hatred Act 2006.

65. Section 29 J protects offensive speech from the purview of public disorder offences referred to in Part 3A. Part 3A of the POA 1986 came into force on 1 October 2007. It provides protection in relation to threatening speech against “a group of persons defined by reference to religious belief or lack of religious belief” that is carried out with the intention to stir up hatred. Section 29J of the Public Order Act 1986 provides that nothing in part 3A “shall be read or given effect in a way which prohibits or restricts discussion, criticism or expression of antipathy, dislike, ridicule, insult or abuse of particular religions or beliefs or practices of their adherents”. 66. Thus Parliament has provided for the expression of the Applicants’ views via section 29J but the policy seeks to deprive the Applicants of such protection through application of an open ended discretion. In Laker Airways v Department of Trade [1977] QB 643 (CA), the Secretary of State’s policy guidance was held unlawful as it cut across statutory objectives which made it clear that the British Airways Board was not to have a monopoly. The Secretary of State should have amended the Act, rather than issue guidance. The same reasoning applies to the present case where the policy cuts across s.29J. It is not open to the Government to 29

deprive individuals of statutory protection through a policy even where that policy provides an open ended discretion: see Congreave v Home Office [1976] QB 629 where the Court of Appeal held that the minister could not use his power to revoke the licensees in order to deprive licensees of the advantage that they had secured through parliamentary authorization. The policy, therefore, is ultra vires and/or unlawful.

67. There is nothing in the Secretary of State’s plea for deference contained in the post decision letter. Indeed, it is for the Court, as a matter of law, to determine a policy’s meaning, and if the decision maker fails properly to understand that meaning, it will have committed an error of law: see per Brook LJ in R v Derbyshire Ex p. Woods [1997] J.P.L 958, at 967-968; per Sedley LJ in First Secretary of State v Sainsbury’s Supermarkets Ltd [2005] EWCA Civ 520 “the interpretation of a policy is not a matter for the Secretary of State”, para 16. Error of law 68. The Secretary of State’s decision, whether viewed under the rules or the policy, is unlawful in any event, since it fails to apply the correct “imminent violence” test for exclusion referred to in Laporte. The existing evidential material did not show that there was a situation that was about to descend into violence following the reasoning in Laporte. As a matter of law, the Applicants could not be excluded on the existing materials. This was a question that ought to be asked and was not asked. The Secretary of State instead proceeded to exclude the Applicants without any further enquiry. In doing so, she set the threshold for exclusion at the lowest, when it was a high one following the reasoning in Laporte. The Secretary of State thereby erred in law. As Ouseley J held in Moon v ECO [2006] INLR 190, errors of law committed by the Secretary of State are amenable to judicial review. As his Lordship held: “no special deference is called for in the assessment of facts…the point could not be disposed of as a matter of upon which the Secretary of States decision was reasonable without further consideration of the 30

material before the Secretary of State and the adjudicator.. We have to say that the approach of the adjudicator read as a whole was far too deferential to the Secretary of State’s appraisal, even if Farrakhan test represents the correct approach to adopt.. If that degree of deference is called for, it had to be earned with the care with which the Secretary of State addressed the relevant issues, and had come to a reasoned and balanced decision. It is difficult to characterise the secretary of state’s decision in that way. It then had to withstand the effect of the new material before the adjudicator... This is a case, however, where the decision was based on material which did not warrant the conclusion reached… This is not disagreement with an evaluation as to what constitutes the public interest or as to a balance struck between competing public and private interests, but a judgment that the factual material simply does not justify the Secretary of State’s conclusion as to the factual basis for the existence of a risk”. Para 131 and 138. 69. The Secretary of State has not concluded that there exists a threat to national security arising out of the conduct of the Applicants. The case is wholly different from Rehman [2005] 1 AC 153 (a case relied upon by the Secretary of State) where the conduct concerned association with organisations concerned with terrorist activities and endangered national security of the United Kingdom justifying deportation. 70. On the evidential materials before the Secretary of State, it was accepted that the Second Applicant was a respected scholar on Islam. It was accepted that the First Applicant would preach a message of tolerance when challenged on her views. Both had no previous convictions and were opposed to violence. The law enforcement agencies could, and should, have curtailed any alleged outburst threatening an “imminent” breach of peace or public order. This was hardly evidence of a situation that may lead to violence. The mere possibility of public disorder or violence did not justify exclusion following the reasoning in Laporte. Nor is it sufficient that violence is anticipated: see per Lord Bingham 131 A-B. The perceived possibility of public disorder or violence can exist almost in any form of public gathering. 31

71. Thus the State’s entire approach is flawed. Instead of spending time and effort reviewing the views of the Applicants, there should have been an identification of the likely perpetrators of violence, so that the threat could be managed and/or curtailed through law enforcement. The Secretary of State made no attempt to contact the Applicants and question them about their views. If the Secretary of State can exclude on the basis of the views of a select few in society, a wall against dissent is being improperly construed through exclusion orders. 72. The evidential material available to the Secretary of State refers to a You Tube video which shows that, in 2012, there were peaceful protests against the Applicants in Stockholm. The wreath was laid, in the absence of the Applicants, without any incident of public disorder in the UK. 73. The evidential material referred to above shows that the Applicants do not promote violence or hate. Their actions were lawful actions. It was not shown that the material upon which the exclusion was made had led to any violent protests or that such protests were in progress.

74. The fact that, Breivik, a Norwegian, may have been inspired to commit murder in the past did not show that publications or writings of the Applicants were the cause of current unrest in the UK. There was no evidence that the Applicants publications had caused inter community violence or any violence that could not be managed through law enforcement. No one really knows why Breivik did what he did. In any event, the fact that somebody is inspired to commit offences through reading literature is an issue for law enforcement rather than exclusion. Breivik cited many people besides the Applicants, and specifically, criticized the Second Applicant for not calling for violence. 75. The materials that the exclusion was based upon were readily available in the UK, where far more extreme views have been expressed without any inter community violence. Both the Applicants drew a clear line between 32

Islamic extremists in favour of violence and peaceful Muslims whom they regarded as part of their struggle for freedom – ironically - this is the very basis for the “Prevent” policy. That policy seeks to move the former towards the latter. Legitimate expectation 76. The Applicants have a legitimate expectation to enter into the UK on the basis of the strategy outlined in the “Prevent” policy. That this is so can be amply discerned through the following:

(i). On the evidential materials before the Secretary of State, it is plain that the Applicants are critical of Islamic extremism and are opposed to violence, including terrorism. The “Prevent” strategy makes it clear that persons such as the Applicants who criticise Islamic extremism, religious violence and terrorism will be useful to the policy aims of the prevention of terrorism in the “Prevent” strategy which the Secretary of State relies on. The Applicants’ presence in the UK is thus conducive to the public good within the meaning of s.3 (1) of the Immigration Act 1971. (ii). In engaging in the discussions referred to in the exclusion letters dated 25 June 2013, the Applicants are engaging in theological discussion. These theological discussions involve thorny issues, such as whether the societal model that Islam in radical form offers is actually compatible with Western values predicated upon the Judeo-Christian ethic, and whether the concept of Jihad has, at its heart, anti-Semitism that has fuelled savage jihadi groups in the Palestinian Authority and Israel (the issue raised in the First and Second Applicants’ discussions). The “Prevent” strategy provides a clear evidential basis for the legitimate expectation that the Applicants will be allowed to express such views on the basis that theological discussions are conducive to the public good. It states: ‘The last strategy recognised the difficulty of the Government taking a position on matters of theology. But the Government designated Islamic studies as a ‘strategically important and vulnerable subject’, allowing the 33

Department to facilitate networking and collaboration between academics. It supported work by a group of leading scholars, community leaders and academics to consider how Islam is contextualised in this country.’ (Paragraph 8.36 of Prevent). It is thus clear that the Applicants’ discussions on theology, and thus their presence in the UK, would fall within “Prevent”. They were correct in assuming that their presence in the UK would be allowed on the test of “conducive to the public good”. In fact, they believe their presence would be conducive to the public good. Their views on Islamic extremism are consistent with the February 2011 speech of Prime Minister David Cameron on radicalisation and causes of terrorism delivered in Munich. This in essence states that Islamic extremism, as a political ideology, is not the same thing as Islam and needs to be questioned through open debate. The speech is said to have angered some Muslim groups and was made during an EDL rally in the UK. The speech, however, did not cause any inter community violence (see para 20 of the First Applicant’s witness statement and exhibit PG1). Theological dissent is a key part of the integration strategy for minority groups that “Prevent” seeks to bring about. “Prevent” states: ‘“Prevent depends on a successful integration strategy” (“Prevent” at para 3.14). Theological dissent shown by the applicants’ views brings theology in line with a pluralistic democratic society with different views and opinions. The acceptance of pluralism and dissent amongst religious groups is clearly fundamental to the prevention of terrorism and to creating community cohesion. Exclusion would have directly the opposite effect by entrenching a lack of tolerance and related extremism. (iii). The “Prevent” policy has been relied on by successive Governments and the Secretary of State since 2005. It thus is regular practice that the government can be expected to follow, and as such, forms the basis of a legitimate expectation. As Lord Fraser stated in Council for Civil Service Union v Minister for Civil Service [1985] AC 374 at 401B: “Legitimate . . . expectation may arise either from an express promise given on behalf of

34

a public authority or from the existence of a regular practice which the claimant can reasonably expect to continue”. Recently, the Secretary of State has, six years after the creation of “Prevent”, relied on “Prevent” on 7 Jun 2011 (Hansard: 7 June 2011 Column 52). Consequently, the existence of “Prevent” is “regular state practice which the claimant can reasonably expect to continue”. It is, moreover, clear law that legitimate expectations may fetter the discretion of the Secretary of State to exclude persons on an absolute basis. The Court of Appeal allowed legitimate expectations to fetter the discretion of the exercise of power in R v North and East Devon Health Authority ex p. Coughlan [2001] QB 213, CA. Hence, the Secretary of State must be open to different forms of reliance on the “Prevent” strategy to the extent that it is permissible for the Court to provide a legitimate expectation based on “Prevent” that fetters the discretion of the Secretary of State to exclude. (iv). The Secretary of State has also breached the Applicants’ legitimate expectation that Articles 9, 10 and 11, 14 and 17 of the ECHR will not be breached. A legitimate expectation can also be based on the existence of a convention right where there is government policy indicating that the presence of the Applicants in the UK is conducive to the public good (see by analogy per Lord Woolf MR in R v North and East Devon Health Authority ex p. Coughlan [2001] QB 213 (CA) at paras 90-93). Accordingly, the Applicants’ exclusion was not permissible. Their exclusion is contrary to their legitimate expectation, namely that their entry is conducive to the public good in accordance with “ Prevent”. The language in s.3 (1) of the Immigration Act 1971 places a positive obligation on the Secretary of State to include persons within the UK whose presence would be conducive to the public good. (v). In any event, the Secretary of State allowed the wreath to be laid in the absence of the Applicants which constitutes an impermissible evisceration of the Applicants’ legitimate expectation that they will be allowed to undertake such peaceful activity in the UK. 35

Procedural impropriety 77. Given that the “imminent” test in Laporte was never applied by the Secretary of State to its fact finding process, the subsequent decision to exclude the Applicants is procedurally improper or tainted with procedural impropriety. The decision thus must be annulled. 78. It is clear, moreover, from the authorities that it is essential for the Secretary of State to be adequately and fully informed of the relevant facts. Indeed, the wider the discretion, the more important it is that the Secretary of State has all the relevant material to enable her to properly exercise it: see R v Secretary of State for the Home Department ex p Venables [1998] AC 407 (CA) 453F; 466G. A failure to conduct adequate enquiries is a ground of review: see R v Kensington and Chelsea Royal London Borough Council ex p. Silchenstedt (1997) 29 HLR 728. 79. The Courts are not thus powerless to intervene. The Secretary of State relies on the decision in Farrakhan. That case is plainly distinguishable. In Farrakhan violent protests were already taking place leading to the arrests of several members of the nation of Islam. There exists no evidence of such violence in the present case. In any event, the case of Farrakhan was considered by the Court of Appeal in Naike where their Lordships held thus: “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 36

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". [para 48]. 80. The present case is not a case involving national security issues. The supervision must be strict. The necessity for the restrictions into the Applicants’ free speech must be convincingly established, which cannot be established on the facts of the present case. The decision of the Secretary of State to exclude the Applicants was procedurally improper. The Secretary of State was not presented with the full picture, failed to take into account relevant facts, and/or failed to conduct an enquiry into the relevant facts. The Applicants rely on the following facts to demonstrate procedural impropriety falling within the Court’s review functions:

1.

The Secretary of State did not take into account the Applicants’ personal views about the subject matter of the exclusion. In the case of (Khatum) v London Borough of Newham [2004] EWHC Civ 55 Laws LJ held that the duty of a decision maker to have regard to relevant consideration may require him/her to take into account the person’s views about the subject matter.

2. The

Secretary

of

State

based

her

decision

on

political

considerations, in that the letter from the Metropolitan Police contains a threat from the Leader of the Council and the Chief Executive. The threat states, if the Applicants were allowed to address the rally, they would make cross party and community representations. Following this letter dated 24th June 2013, the 37

Secretary of State decided to exclude the next day on 25th June 2013 despite the fact that, on the materials before the Secretary of State, the visit was not due to take place until 29/6/2013. This meant that the Secretary of State made a rapid decision taking into account an immaterial consideration and/or her decision was tainted with a improper purpose: see Local Commissioners for Administration in North and North East England ex part Liverpool City Council [2001] 1 All ER 462 [36]; R v Secretary of State for Foreign and Commonwealth Affairs, ex p World Development Movement Ltd [1995] 1 WLR 386, 398C-D. It is to be noted that the email in response to the above threat does not reveal the identity of the decision maker. The Court is entitled to see that discretion is not exercised for an improper motive: see Laker Airways. 3. The Secretary of State failed to make any further enquiry into whether the alleged threat of inter community violence could be avoided through police powers by banning orders, area exclusions and/or by restricting the Applicants’ visit to a private one. These powers were readily available to the police under the Public Order Act 1986 and following the reasoning in R v Laporte ought to have been used. The police report expressly mentions instances where the police intervened by way of banning orders to prevent disorder without making any arrest. The police submissions referred to above, however, do not make available any evidence regarding whether it was possible to curtail the alleged threat through law enforcement. 4. The Secretary of State failed to take into account the following relevant facts: 1. The Applicants were opposed to violence and their views were theological views, which are required to be received under the “Prevent” policy and/or in the general public interest.

38

2. The right of assembly and/or protest of other interested groups such as Muslims and/or other minorities such as certain Jewish groups who, on the evidential materials, were said to be sympathetic to the Applicants. 3. The public’s right to be informed of a different perspective irrespective of how unpalatable that perspective may have been, since the ECHR required her to do so: see Surek and Ozdemir v Turkey7 referred to in paragraph 88 below. 4. That, even on the redacted material presented by the MP, the protests recorded in You Tube were peaceful protests. Any threat could, and should, have been curtailed by law enforcement. 5. That the Applicants had published numerous books on the topic of Islam, for which they received excellent reviews and that in a pluralistic society of dissent, there was a public interest in the debate advanced by the Applicants. 6. The material subject to the exclusion was already freely available in the UK on the internet, and had not caused any public disorder in the UK. 7. There were numerous Muslims in the US who had not reacted to commit a public disorder offence when dealing with the Applicants’ work. 8. The available materials did not justify a factual basis for the existence of a risk or appropriate degree of risk that the Applicants’ views may lead to inter community violence. There was no situation that was about to descend into violence, as required by the reasoning in Laporte. The MP report, for instance, identifies instances where the police had intervened to cancel a rally without any arrests.

7

8 July 1999, Application Nos. 23927/94 and 24277/94, para 61.

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9. Contrary to Article 14 (see below), the evidence gathered was almost entirely one sided, and failed to present similar views to those of the Applicants from other organizations within the UK, including organizations and individuals such as: (1). EDL. (2). Geert Wilders. (3). Paul Weston. (4). UKIP (Lord Pearson). (5). Richard Dawkins. (6). Douglas Murray. (7). Melanie Phillips.

10. The Applicants had a complete defence to their speech and conduct pursuant to s. 29J of the Race and Religious Hatred Act 2006 and/or domestic common and international law. 11. The Secretary of State did not take into account the Applicants’ Articles 9, 10, 11, 14 and 17 rights and gave no reasons as to why those rights were outweighed. No reasons were given on the basis upon which the situation in the UK was about to descend into violence and/or otherwise. Inadequate reasons were given in support of the decision that there may be inter-community violence arising from the expression of the Applicants’ views. Article 10 of the ECHR/International law 81. The Secretary of State’s decision to exclude the Applicants breaches their rights under Article 10 of the ECHR and/or is contrary to international law.

40

82. Article 10 of the ECHR states: "(1) Everyone has the right to freedom of expression. The 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 interest 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 right of others". 83. The Applicants were meeting individuals here in the UK and intended to lay flowers at the memorial site of Lee Rigby together with other freedom-loving individuals in the UK. The Applicants were excluded from the UK because it was alleged that they would continue to “espouse” their views. 84. Freedom of expression under Article 10 protects the right to receive opinions and information, as well as the right to express them. Article 10 prohibits the State from restricting the receipt by an individual of information that others wish or may be willing to impart.8

85. The right to receive and impart ideas is of such importance has been described as the “lifeblood of democracy”.9

86. Freedom of expression encompasses expression in any medium, including symbolic acts such as laying of flowers, which is analogous to displaying a
8 9

Leander v Sweden (1987) 9 E.H.R.R. 433 (para 74). London Regional Transport v The Mayor [2003] E.M.L.R.4, CA per Sedley LJ, para 55.

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banner or exhibiting a painting to which Article 10 extends: see X v Germany (Application No. 9235/81) 29 DR 194; Muller v Switzerland (1988) 13 EHRR 212.

87. Freedom of expression is also guaranteed under Article 19 of the International Covenant on Civil and Political Rights (ICCPR).10 It is one of the essential foundations of a democratic society and includes the right not only to express “ideas that are favourably received”, but also those that “offend, shock or disturb” (Sunday Times v UK (No. 2) [1992] 14 EHRR 123, para 65). In modern, pluralistic democracies, there are few matters worth debating that will not elicit a viewpoint that someone will find offensive, shocking, or disturbing. Consequently, as his Lordship, Lord Justice Sedley, aptly observed in Redmond Bate v DPP (2000) H.R.L.R. 249 "Freedom only to speak inoffensively is not worth having".

88. Both the ECHR and the ICCPR protect, not only the right of every person to express themselves, but the right of the public at large to hear a wide range of points of view, including those which some may find shocking or offensive. This is illustrated by the case of Surek and Ozdemir v Turkey11 in which the ECHR found a violation of freedom of expression where a newspaper had printed an interview with a PKK activist calling for a separate Kurdish state. Noting the public’s right to hear different points of view, the Court held 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”. 89. In Nolan v Russia App 2512/04 6th July 2009, it was held that a state must exercise its immigration controls consistently with its convention obligations when dealing with foreign nationals. In Farrakhan v Secretary of

Adopted and opened for signature, ratification and accession by UN General Assembly Resolution 2200A (XXI), 16 December 1966, entered into force 3 January 1976.
10 11

8 July 1999, Application Nos. 23927/94 and 24277/94, para 61.

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State it was held (whether by concession or otherwise) that Article 10 of the ECHR was engaged, even though Mr Farrakhan, was a US national outside the UK.

90. In Cox v Turkey [2010] Imm AR 4 it was held: "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].

91. In Naike v Secretary of State for the Home Department [2011] EWCA Civ the Court of Appeal held (without deciding the point finally): “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 3rd Feb 2009) in which it had – 43

"… 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 6th 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)…

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 44

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…”. 92. Contracting states are bound to secure the rights and freedoms under the ECHR to all persons under their actual authority and responsibility, whether that authority is exercised within their own territory or abroad: Cyprus v Turkey (1976) 4 EHRR 482 , 586, para 8. 93. In Smith v Ministry of Defence [2013] 3 WLR 69 it was held that a state's agents and those whom they affected when exercising authority and control on the state's behalf were brought within the state's Article 1 jurisdiction by reason of this principle.12 The list of circumstances in which control can be exercised is not closed. 94. Consequently, Article 10 is engaged and/or interfered with in the present case, even though the Applicants are US citizens, due to the following reasons: 1. The Applicants were due to visit the UK and meet UK citizens whose Article 10 rights are engaged and evoked. 2. The Second Claimant has a substantive connection with the UK; having already visited the UK without any obstruction. 3. The Applicants have a large body of supporters here in the UK who have signed a petition in the thousands seeking the entry of the Applicants into the UK so that they can receive and impart with their ideas. 4. The decision of the Secretary of State must be exercised consistently with the Convention, and the act of exclusion amounts to the exercise of authority or control over the Applicants in the US, thereby bringing them within the jurisdiction for the purposes of convention rights.
12This

is consistent with Isa v Turkey (2004) 41 E.H.R.R 567, at 74 where the Court held that jurisdiction arises whenever victims of human rights abuses are under the control of the state operating through its agents.

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5. The Applicants’ exclusion amounts to a substantial interference with their right to freedom of expression (see para 95 below). Prescribed by law

95. The interference in question must have some basis in domestic law, and the phrase "law" covers not only statute law, but also unwritten law and/or a regulation (Sunday Times v UK (No.1) App. 6538/74, para 47; Golder v UK (1975) 1 EHRR 524, para 45; Silver v UK [1979] 2 EHRR 245, para 86). 96. The law must be adequately accessible: the citizen must have an indication that is adequate in the circumstances of the rules applicable to a given case. A norm cannot be regarded as law unless it is formulated with sufficient precision to enable the citizen to regulate his conduct: he must be able if need be with appropriate advice to foresee, to a degree that is reasonable in the circumstances, the consequences which a given action may entail (Sunday Times v UK, para 49).

Is the exclusion prescribed by law?

97. The Applicants contend that the decision to exclude them does not pass the prescribed by law test for the following reasons: 1. For the reasons referred to above, the exclusion was an abuse of power.

2. For the reasons referred to above, the Applicants have been excluded on the basis of a policy which is unlawful and has not been approved by Parliament. The decision of the Secretary of State is based on a misapplication of the rules and the policies. The decision, therefore, has no legal basis in domestic law in any event (see Silver v UK, para 86).

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3. The Applicants’ views on Islam, on the Secretary of State’s own evidence referred to above, amount to nothing more than criticism of Islamic extremism. Such views are permissible under the common law (see Redmond v Bate). The Applicants’ views are sanctified by Parliament under section 29 J of the Race and Religious Hatred Act 2006. In order for the Applicants to be deprived of the protection under s. 29J, they have to advocate violence towards Muslims. But the available materials placed before the Secretary of State referred to above show that the Applicants do not advocate violence towards Muslims. They seek to criticise the extremist ideology directed towards the West and all people targeted by Jihad in particular Jews, Christians, Copts, Hindus, Bahais, Buddhists, and Sikhs.

4. The Unacceptable Behavours policy introduces an open ended absolute discretion and infringes the requirement of certainty in that “it does not provide for the scope of the discretion and the manner of its exercise with sufficient clarity, having regard to the legitimate aim of the measure in question, to give the individual in question adequate protection against arbitrary interference”: Gillow v United Kingdom (1989) 11 EHRR 335 at 51. Para 47 above is repeated. This undermines the objective of formulating the list in the first place, which was to clarify the Home Secretary’s powers to deal with the prevention of terrorism under the “Prevent” strategy. Rather, it allows the Secretary of State to exclude at will through use of powers used and intended to curtail terrorism rather than free speech. The operative term “express views which may lead to intercommunity violence” is not defined. It does not distinguish between permissible speech under s.29J on the one hand and impermissible speech such as glorification of terrorism on the other. A key problem with the term is that it fails to distinguish between social or even academic discussions about the role of violence, on the one hand, and actual exhortations to violence, on the other. The policy could be used to 47

exclude legitimate historical and theological discussions concerning the basis of Jihad. Open discussion and critical thought in this area is particularly required at present, and the contested rules run directly counter to this social need. The operative term in question captures forms of expression which may offend and disturb, which are yet entirely legitimate under the English common and statute law. This term, moreover, fails to take into account the reasoning of the House of Lords in Laporte and explain that there has to be a direct and immediate connection with the expression and the imminent violence.

A legitimate exclusion cannot be prematurely achieved without identifiable evidence indicating that law enforcement cannot contain actual or imminent violence. The operative degree of threat is, moreover, left undefined. It is evident from discussions in cases involving national security issues concerning exclusion under the 2006 EEA regulations that nothing less than “a serious risk to public security” would suffice and the evidence establishing that risk must be “cogent”.13 In the policy, it is not possible to discern whether the threat has to be a serious threat or something less than serious would suffice, which renders it impossible to foresee with appropriate advice, to a reasonable degree, the consequences which the Applicants’ action may entail. For all these reasons, the policy does not, therefore, pass the prescribed by law test.

In order to pass this test the policy must follow the Johannesburg principles, adopted by a group of experts from around the world. These show that the restrictions on freedom of expression in the name of national and public security may be imposed only where the

See Bonsignore v Stadt Koln [1975] ECR 297, page 316 column 1 and page 315 column 1, para 3.
13

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speech was intended to incite imminent violence. There must exist a direct and immediate connection between the expression and the likelihood or occurrence of such violence. In order to comply with the certainty principle, the policy needs to be redrafted with

Parliamentary approval so that it reads:

“may lead to community violence means:

Expression is intended as a threat to national and/or public security only if a government can demonstrate that:

1. The expression is intended to incite imminent violence; 2. It is seriously likely to incite such violence; and 3. There is a direct and immediate connection between the expression and the serious likelihood or occurrence of such violence”.

Is the decision necessary in a democratic society? Is the decision proportionate?
98. Whether measures are necessary and proportionate in the instant case is, as the Court of Appeal held in Naike, for the judgment of the Court (see para 79 above). The word necessary entails a consideration of whether: (i). the interference corresponds to a pressing social need; (ii). is proportionate to the legitimate aim pursued; and (iii). the reasons given by the national authorities for the measure are relevant and sufficient under Article 10 (2) (Sunday Times v UK, para 62). In assessing whether the interference complained of was based on sufficient reasons which are rendered necessary in a democratic society, account must be taken of the public interest aspect of the case (para 65). The Applicants contend that the decision to exclude them is not necessary because it is: (1) disproportionate; (2) does not correspond to a pressing social need; (3) is based on reasoning which is wholly 49

unsatisfactory; (4) there exists no public interest in exclusion.

99. Given that the state has misused the prevent policy through the Applicants exclusion, it is has undermined the fight against terrorism and thereby compromised public trust and confidence in anti terrorism law. Consequently, it is not open to the Secretary of State to rely on any of the exceptions in Article 10 (2). 100. Contrary to the Secretary of State’s response to the pre-action letter, the act of laying flowers at the site that Drummer Lee Rigby was murdered, and receiving and imparting ideas with others in the UK through that method, is not something which can be performed through alternative means from the US or elsewhere. The form and method of expression in the instance case constitutes the very essence or quality of the expression which the Applicants seek to exercise. This is a case where that essence is destroyed through the exclusion. Contrary to the Secretary of State’s post decision letter, the restriction on the Applicants’ right is total or at the very least extremely substantial. The Secretary of State’s contention was in any event rejected by Laws LJ in Tabernacle v Secretary of State [2009] EWCA Civ 23. In that case, bye laws preventing the maintenance of the long-standing, one weekend a month, Aldermaston Women’s Peace Camp (protesting on Government-owned open land against nuclear weapons) were held to breach the protesters’ Convention rights. As Laws LJ said at para 37, “the camp has borne consistent, long-standing, and peaceful witness to the convictions of the women who have belonged to it”, and, to the protesters, ‘the manner and form” is the protest itself”. The analogy between that and the present case is telling. Laws LJ proceeded to hold that the Secretary of State “must demonstrate a ‘substantial objective justification… amounting to an undoubted pressing social need for exclusion”. This is consistent with the reasoning of the European Court of Human Rights in Ashingdale v The United Kingdom (1985) 7 EHRR 528 at para 57 where the Court held:

50

“Nonetheless, the limitations applied must not restrict or reduce the access left to the individual in such a way or to such an extent that the very essence of the right is impaired…”.

101. It is to be noted that following the reasoning of their Lordships in R v Laporte, state authorities are under a positive duty to ensure that lawful assemblies take place without interference from third parties. As Sedley J (as he then was) held in Redmond v Bate at para 18: “If the threat of disorder or violence was coming from passers -by who were taking the opportunity to react so as to cause trouble (like the Skeleton Army in Beatty v Gilbanks), then it was they and not the preachers who should be asked to desist and arrested if they would not”. 102. Even if the decision in question was prescribed by law (which is denied), it is not necessary in a democratic society on the grounds of one or more of the considerations stated in Article 10 (2). The Applicants’ views do not constitute hate speech, since neither of their views promote violence. Rather the reverse: their views constitute speech which is in the public interest, necessary to the proliferation of a public debate on whether Islam is compatible with Western values such as liberty, equality and the rule of law. Their views are permissible under section 29J which restricts the scope of the derogation under Article 10 (2). Their exclusion was at the behest of a small but obviously influential number of individuals.

103. The Applicants’ views are such that they are moderate compared to the views of other organisations and individuals that have voiced their concerns about Muslims in the UK, including the British National Party, in relation to which the government has been unable to take any lawful repressive measures. As the European Court of Justice ruled in Adouhi and Cornuaille v Belgian [1982] 3 C.M.L.R. 631, at para 9:

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“…. a member – State may not, by virtue of the reservation relating to public policy … expel a national of another member – State from its territory or refuse him access to its territory by reason of conduct which, when attributable to the former State’s own nationals, does not give rise to repressive measures or other genuine and effective measures intended to combat such conduct”. 104. It is not surprising, therefore, that the police submissions document referred to above was concerned that the minority Jewish community in the UK is more likely to be offended through the perception of double standards. In recent times, the UK government was forced to allow Geert Wilders entry into the UK. The government had sought to exclude him from the UK on the basis that his anti-Islamic views would create offence to Muslims. The ban was overturned on appeal. The protests which took place upon the arrival of Mr Wilders was peaceful and no violence ensued (see Tab 9, 402). 105. In Gunduz v Turkey (2005) 41.E.HR.R. 5, the issue regarding freedom of expression arose in the context of incitement to racial hatred and hostility. A leader of the Islamic sect took part in a live television broadcast transmitted by a private channel. The purpose of the programme was to discuss the sect, whose members were attracting public attention. The following April, Istanbul State Security Court found him guilty of making statements during the broadcast inciting people to hatred and hostility on grounds of religious difference. In particular, it found that he had described Turkish society as "impious", fiercely criticised secularism and democracy, and called for the introduction of a regime based on Sharia. He was sentenced to two years imprisonment and a fine. His conviction was upheld by the Supreme Court. Relying on article 10 of the Convention, the applicant claimed that his conviction had violated article 10 of the ECHR and claimed just satisfaction. The ECHR ruled: 1. The purpose of the discussion was to determine the compatibility of his concept of Islam and Western Values. The subject had been widely 52

discussed in the media and concerned a matter of general interest, a field in which restrictions on freedom of expression called for strict interpretation. The broadcast had been designed to prove an exchange of views and to inform the public about an issue of great interest for Turkish Society. The Applicant's views which expressed profound dissatisfaction with contemporary Turkish institutions such as principles of secularism and democracy could not be regarded as an appeal to violence or as hate speech based on religious intolerance (paras 43-44). 2. Although it was difficult to declare respect for democracy and human rights while supporting a regime based on Sharia, the mere fact of defending Sharia, without calling for violence in order to establish it, could not be regarded as hate speech. The Applicant’s well known extremist views in that case were counterbalanced by the intervention of other participants and were expressed in the context of a multi-sided debate in which he was actively participating. The need for restriction was not convincingly established (para 51). 106. In Piermont v France (2003) 37 E.H.R. 301, the applicant, a German MEP, visited the French Polynesia at the invitation of a local politician and took part in a pro-independence and anti-nuclear demonstration. As she was about to leave, she was served with an order for her expulsion and exclusion. She was thereafter excluded from New Caledonia. She complained that the measures infringed her freedom of expression, contrary to article 10. She also complained of discrimination contrary to article 14 taken in conjunction with article 10 and contended that the measure infringed her freedom of movement, contrary to article 2 of Protocol 4. The ECHR found for her on all points and held:

1. Freedom of expression constitutes one of the essential foundations of a democratic society, one of the basic conditions for its progress. Subject to Article 10 (2), 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 which offend, shock or 53

disturb. Such are the demands of pluralism, tolerance and broadmindedness without which there is no democratic society. A person opposed to official ideas and positions must be able to find a place in the political arena. While freedom of expression is important for everybody, it is especially important for an elected representative of the people. Accordingly, interferences with his or her freedom of expression call for the closest scrutiny on part of the Court (76).

2. Although the political atmosphere prevailing in Polynesia and the prospect of two sects of elections are matters of some weight and the applicant had been requested to exercise discretion when speaking in public, her utterances were made during a peaceful, authorised demonstration. At no time did she call for violence or disorder. She spoke in support of the anti-nuclear and independent demands made by several local parties and therefore contributed to a democratic debate. Moreover, the demonstrations did not follow by disorder and the Government did not show that the stances taken up by the applicant caused any unrest. Accordingly, a fair balance was not struck between on the one hand, the public interest requiring the prevention of disorder and the upholding of territorial integrity and, on the other, the applicant's freedom of expression. Since the measure was not necessary in a democratic society (77- 78) . 107. In Dağtekin v. Turkey (no. 36215/97) (Violation Article 10), the applicant, Hasan Dağtekin, was a Turkish national who was born in 1959 and lived in Diyarbakır. At the material time he was the owner and editor of the "Dilan" publishing house. In 1994, he published a novel written by Rıza Çolpan, entitled "Xide Naxirvan U Tevkustina Dersim" (Xide Naxirvan and the Genocide of Dersim). The latter criticised the pressure that Turkey had allegedly exerted on the Kurdish people throughout history. As a result of its publication, Ankara State Security Court, in a judgment of 14 November 1995, instructed the applicant to pay a fine for disseminating separatist propaganda and ordered the confiscation of the 54

disputed book. That verdict was upheld by the Court of Cassation. 108. The applicant submitted that his criminal conviction had infringed his right to freedom of expression, relying on Article 10 (freedom of expression). The Court held that the grounds put forward by the Turkish courts could not in themselves be considered sufficient to justify the interference with the applicant's right to freedom of expression. Although certain particularly acerbic passages in the book presented an extremely negative picture of the history of the Turkish State, thus giving the story a hostile connotation, they did not incite the use of violence, armed resistance or insurrection; nor was the book an example of hate speech. The Court considered that the applicant's sentence was disproportionate to the aims pursued and, consequently, not "necessary in a democratic society". Accordingly, it concluded unanimously that there had been a violation of Article 10 and awarded Mr Dağtekin EUR 1,500 in respect of pecuniary damage, EUR 2,000 in respect of non-pecuniary damage, and EUR 2,000 for costs and expenses.

109. The Applicants’ case is analogous to the above cases with the effect that the decision to exclude him from the UK is not necessary within article 10 (2).

110. On the evidence referred to above, the Applicants do not make a call for violence. Both engage in theological discussion in a non-violent manner. There was no violence that had unfolded on the streets that could have led to inter community violence. The police are capable of controlling the same through law enforcement. The state has not complied with its positive obligation to ensure that the Applicants were allowed to lawfully assemble and express their views on issues of public importance without interference from minority groups. There is no casual connection between the Applicants’ actions and the potential violence alleged. The

55

case of Karatas v Turkey14 is instructive. In that case it was held that there was a violation of article 10 of the ECHR where the Claimant had been convicted of publishing poetry which allegedly condoned violence and glorified acts of terrorism. The ECHR held that the conviction constituted a violation of the Applicants right to freedom of expression. Emphasising that there was no causal connection between the poems and violence, the Court held:

“There is little scope under Article 10 (2) of the Convention for restrictions on … debate on matters of public interest… In a democratic system the actions or omissions of the government must be subject to the close scrutiny not only of the legislative and judicial authorities but also of the public opinion... Even though some of the passages from the poems seem very aggressive in tone and to call for the use of violence, the Court considers that the fact that they were artistic and of limited impact made them less a call to an uprising than an expression of deep distress”. 111. The Second Applicant is a respected Islamic scholar having taught seminars on Islam and Jihad for the United States Central Command, United States Army Command and General Staff College, the U.S. A rmy’s Asymmetric Warfare Group, the FBI, the Joint Terrorism Task Force, and the US intelligence community. 112. The First Applicant is also a respected author and human rights activist, having published innumerable books on the topic of Islamic extremism, for which she has received glowing reviews. 113. The US is the Applicants’ home country. There is no evidence that the Muslims in that country have been violent as a result of the Applicants’ views and/or conduct. Nor is there evidence that the Secretary of State has directed her mind to this issue at all.

14

8 July 1999, Application No. 23168/94, paras 50-52.

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114. The evidence accepts that the First Applicant “advocates defence against the spread of extreme Islam”. In relation to the Second Applicant, there exists the same acceptance in the evidence. 115. The Applicants’ criticism is directed to radical Muslims who pose a threat to civilisation. Both Applicants draw a distinction between Muslims and Islamic extremism. The Applicants have openly on the materials called for Muslims to stand with them in their fight for freedom. A former Muslim apostate girl was assisted by the First Applicant, which enabled her to escape from her violent family. 116. In any event, the Applicants’ comments fall within section 29J and cannot found a basis to exclude. 117. The Applicants engage in a theological debate which highlights how radical and extreme Islam poses a threat to Western civilisation through use of the concept of Jihad against the unbelievers, in particular Jews, Copts, Hindus, Buddhists, Bahais, apostates from Islam, and gays. Such criticism is justified in the public interest because it promotes a significant debate regarding the parts of Islam acceptable in a Western democratic society. This is particularly important in light of terrorist activities committed in the name of Islam in Israel, the Palestinian Authority, and elsewhere around the world, including the UK and the US. 118. On the Secretary of State’s evidence, the Second Applicant’s blog “won the people’s choice blog award”, and, therefore, there was a countervailing public interest in the Applicants’ views. 119. The complete exclusion on the Applicants was unnecessary, as the police could have evoked their powers to exclude from certain areas, and confine the visit to one which was a private one, if necessary. The evidential material placed before the Secretary of State failed to assess whether the police powers would be sufficient to deal with any alleged threat of inter community violence. It is to be noted that, when Mr Wilders visited the UK, it was reported that the police ensured that groups were kept separate (Tab 9, 402). The same could have been achieved in the present case. 57

120. The decision to exclude the Applicants is heavily influenced in both cases by the evidence that certain Muslims will be offended if the Applicants are allowed to espouse their views which are insulting to them. But this ignores that the law permits expression which is offensive. It, moreover, seeks to trivialise the fact that Muslims will be protected through law enforcement in the UK. 121. A message may be offensive and even insulting to moderate Muslims. But Parliament has recognised that speech that merely insults people on the basis of their religion is part of a legitimate public debate in a free and democratic society: see s.29J and per Sedley LJ in Redmond v Bate for the common law position. Indeed, “[T]o present it as a virtue [that the common law of England already accepts the standards of Article 10] is to trade on the widespread but mistaken view that accommodating international human rights jurisprudence is the same thing as respecting human rights. There could come a point, indeed, where it would be better to have no Convention on Human Rights at all than one that can be used to legitimate and congratulate any decision under the sun”.15 122. The Applicants’ message is far from offensive. It cannot in any event form a basis to exclude. For such views are relevant to matters within the people's collective decision making authority, including immigration policy, whether there is a role for Sharia in Britain, and the attitude state schools and other public institutions should adopt towards Muslim customs, including the veiling of women and girls. It is thus a perspective that, despite the offence or insult it may cause, must be allowed to be expressed in a democratic society on the basis that it is necessary to the proliferation of a public debate in a society where bad ideas area superseded by better ones. The Applicants’ views are relevant to current rule making and policy in the UK, such as for instance, Baroness Cox’s Sharia Law Bill to combat Islamic tribunals in the UK.16

J. Gardner, Freedom of Expression in C. McCrudden and G. Chambers (eds.), Individual Rights and the Law in Britian (OUP, 1994), pp. 209-238, at p 236.
15 16

The Arbitration and Mediation Services (Equality) Bill, HL Bill 7; 55/2; 10 th May 2012.

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123. For all the obvious hollowness of the decision of the Secretary of State, it amounts to no more than the notion that the right to free speech must be held in balance with the requirement to avoid offence, even if it means making a decision contrary to the law. That is wrong. There is no right to have one's emotional sensibilities protected: it is not the business of government to legislate for such feelings. 124. It cannot be proportionate, as required by Article 10 of the ECHR to conclude in the abstract, in advance, and without first trying reasonable security measures, that the Applicants’ conduct will cause reactions that threaten community harmony.

125. Indeed, Part II of the Public Order Act 1986 contains a requirement that there be advance notification to a police station of any public processions intended to demonstrate against any person or body of persons (see section 11 of the Public Order Act 1986). If the senior police officer believes that there would be serious public disorder, serious damage to property or serious disruption to the life of the community, he may give directions imposing on the persons organising or taking party in the procession such conditions as appear necessary to prevent such disorder, damage, disruption or intimidation (see section 12 of the Public Order Act 1986). Measures to prohibit any public procession are also available (see section 13 of the Public Order Act 1986). No such measures were taken or felt necessary because no procession was taking place in opposition to the Applicants’ arrival.

126. The above analysis accords with the principles of tolerance and respect. Certain Politicians may well seek to suppress insulting speech in the sense defined in section 29J for reasons which have more to do with electoral advantage than a genuine commitment to the values of tolerance and respect.

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127. Indeed, values of tolerance and respect can be placed in jeopardy where a powerful minority acting through their political representatives invoke "offence" to stifle majority or unpopular viewpoints.

128. The temptation to acquiesce in the official suppression of views with which we disagree or even loathe, because their public expression offends our sensibilities, should additionally be resisted. For on a subsequent occasion, it may be our speech or that belonging to persons with whom we agree that is targeted.

129. The causing of offence rarely constitutes a sound basis for restraining speech or conduct. Unfortunately, it is the folly of human conceit that people take offence at many socially useful or even necessary activities. To offer an example: undoubted offence would have been caused as recently as several decades ago in parts of the United States by couples of mixed colour strolling arm in arm down the main street. The position is now different.

130. If suppression of speech were allowed merely to prevent offence to religious belief, expression is liable to be curtailed by reference to the standards of some of the least tolerant, most easily outraged members of society. Such a basis for prohibiting expression produces an ironic result for liberal democracies. In trying to accommodate differences out of a commitment to pluralism and the equal worth of alternative conceptions of good life, the lack of tolerance on the part of certain of the accommodated groups provides the basis for curtailing the freedoms of the rest.

131. It follows, therefore, that the Applicants’ speech cannot be restricted. For a general prohibition against hurting religious feelings would put public discourse at the mercy of the sensitivity of religious groups, and particularly the most militant amongst them. 60

132. The Applicants’ case is similar to a line of cases above where the ECHR found a breach of article 10 of the ECHR in circumstances where the views of the applicants in those cases could not be regarded as hate speech and the measures in those cases were held to be disproportionate.

133. The cases of Otto Preminger Institut v Austria (1994) 19 EHRR 34 and Wingmore v UK 1996) 24 EHHR 1 can be distinguished.

134. In Wingmore v UK, the ECHR upheld a refusal by the relevant broadcasting authority to classify a video depicting St Theresa in a state of sexual ecstasy as consistent with article 10 on the ground that it was blasphemous. The Court held that the law of blasphemy was sufficiently clear to satisfy the requirement that it should be prescribed by law. The UK has, however, now abolished blasphemy after the publication and subsequent furore over the book: Satanic Verses (see Criminal Justice and Immigration Act 2008, s. 79). Consequently, this authority has no relevance. In any event, the decision proceeds on the basis of a concession (para 43).

135. In Otto Preminger Institut v Austria, the Court upheld the seizure and forfeiture of a film which portrayed the founding figures of Christianity (and some other religions) in a deeply offensive manner. Again that decision proceeds on the basis that (1) the video was not in circulation and (2) the laws of blasphemy applied. In the present case, the Applicants’ views were widely available to the world at large prior to the Applicants’ exclusion, the laws of blasphemy do not apply, and the Applicants enjoy protection under section 29 J. Otto Preminger was criticized in I.A. v Turkey (2007) 45 EHRR 30, a case concerning a criminal conviction for blasphemy. In dissenting judgments Judges Costa, Cabral Barretto, and Judgwiert made the following points: that a democratic society is not a 61

theocratic one, and that in their view, it placed too much emphasis on conformism of freedom of the press (paras 01-5-8). Article 11 of the ECHR 136. Article 11 concerns freedom of assembly and association. It states: "Everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests. 2. No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others. This article shall not “Prevent” the imposition of lawful restrictions on the exercise of these rights by members of the armed forces, of the police or of the administration of the State". 137. Article 11 is engaged for the same reasons as those that apply to Article 10. 138. In Sergey Kuznetsov v Russia, (App. No. 10877/04) [2008] ECHR 1170, the Strasbourg Court held: “… the right to freedom of assembly covers both private meetings and meetings on public thoroughfares, as well as static meetings and public processions; this right can be exercised both by individual participants and by those organising the assembly….” 139. Article 11 also carried with it the positive obligations which require a state to take steps to ensure that other individuals or groups do not interfere with the right to peaceful assembly by violent counter demonstrations: Platform Artzefur das Leben v Austria (1988) 13 E.H.R.R 204, para 32;

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Wilson v United Kingdom (2002) 35 E.H.R.R. 20, 47-48. As the Court held in Platform Artzefur: “A demonstration may annoy or give offence to persons opposed to the ideas or claims that it is seeking to promote. The participants must, however, be able to hold the demonstration without having to fear that they will be subjected to physical violence by their opponents; such fear would be liable to deter associations or other groups supporting common ideas or interests from openly expressing their opinions on highly controversial issues affecting the community. In a democracy the right to counter demonstration cannot extend to inhibiting the exercise of the right to demonstrate… Genuine, effective freedom of peaceful assembly cannot, therefore, be reduced to a mere duty on the State not to interfere… Article 11 sometimes requires positive measures to be taken, even in the sphere of relations between individuals, if need be”. 140. Clearly, the Applicants’ exclusion from the UK constitutes an interference with Article 11 of the ECHR. For the reasons referred to in relation to Article 10, the interference was not justified particularly since (i) there was no exclusion of EDL members who were able to assemble; (ii) there was no situation that was about to descend into violence; (iii). if there were such a situation, under the Public Order Act there were measures that could, and should have been taken to ensure that other individuals did not interfere by way of violent demonstrations in a peaceful assembly on Armed Forces Day; (iv). no incident of out of control violence was in any event reported; (v). the restriction was not otherwise necessary or proportionate. Article 9 of the ECHR

141. Article 9 in so far as material states:
“Everyone has the right to freedom of thought, conscience….; this right includes.. freedom, either alone or in community with others and in public 63

or private, to manifest his …belief, in … practice..

Freedom to manifest one’s …beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others”.

142. Article 9 applies to the Applicants who are US nationals for the same reasons
referred to in relation to Article 10.

143. Article 9 applies to the present case. This is because it involves the Applicants’
important freedom to hold their beliefs and conscience against Islamic extremism by laying a wreath at the memorial site of soldier Lee Rigby in community with others irrespective of whether their beliefs amount to a religious belief: see the decision of the House of Lords in R Williamson) v Secretary of State [2005] 2 AC 246, para 16.

144. The Applicants’ right to hold their belief and conscience is absolute and cannot be qualified: R (Williamson) v Secretary of State. As Professor T.R.S Allan aptly put it in his book Constitutional Justice: A Liberal Theory of the Rule of Law (Oxford University Press 2003) at page 7-8:

“The central role of conscience in the identification and interpretation of law demands recognition of a limited, but absolute, sphere of freedom of speech...... the state cannot legitimately prohibit the advocacy of illegal action, in disobedience to its demands, at least where the relevant measures are resisted on conscientious grounds. Although the state may properly punish civil disobedience, when necessary for the common good, it may not curtail the citizen’s right to speak in defence of such conduct or hear the argument in favour of it. No state can acknowledge a right to disobey, whenever its demands violate a citizen’s sense of justice; but equally no one 64

who accepts the responsibility that the rule of law imposes can surrender moral judgment to the state, however benign he judges its actions in normal circumstances or over the main areas of its jurisdiction”.

145. The exclusion orders clearly interfere with the Applicants’ right to manifest
their belief thus defined, since they are unable to hold their belief as described above.

146. In the case of Father Basil17, the Strasburg Court condemned as a violation of Article 9 the failure of the Georgian authorities to ensure tolerance of the exercise by the applicants (a group of Jehovah’s Witnesses) of their right to freedom of religion in the face a violent and outrageous attack on worshippers and their place of worship by Father Basil (a defrocked Orthodox priest) and a group of extremists.

147. It is submitted that the same ought to apply to the present case where the Secretary of State has failed to ensure tolerance by ensuring that law enforcement was available to combat the alleged threat of violence arising from the Applicants’ holding their belief and thought as described above.

148. Accordingly, there exists an actionable breach of Article 9 of the ECHR.

Article 14 of the ECHR 149. Article 14 of the ECHR provides: “The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other
97 Members of the Gldani Congregation of Jehovah’s Witnesses and 4 others v Georgia, (App. 71156/01), 3 May 2007, (2008) 46 EHRR 613.
17

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status". 150. Article 14 provides for a right not to be discriminated against only in respect of the other rights laid down in the Convention and its Protocols. Consequently, it does not provide a general free-standing prohibition on discrimination and does not apply unless the facts at issue fall within the ambit of another Convention right. The application of Article 14 does not, however, require a violation of another substantive article of the Convention. The ECHR has frequently found violations of Article 14, read in conjunction with another article of the Convention, without finding a violation of the latter. (The Applicants, in any case, call for no discrimination against Muslims or anyone else). 151. The test for determining whether there has been a violation of Article 14 is not entirely clear. For some time, the favoured approach was the following framework stated by Brooke LJ in Michalak v London Borough of Wandsworth [2002] EWCA Civ 271, para 20 (as refined in later cases): (1). Do the facts fall within the ambit of one or more of the substantive convention provisions (for the relevant rights. see s. 1 (1) of the HRA 1998)? (2). If so, was there different treatment in respect of that right between the complainant on the one hand and other persons put forward for comparison ("the chosen comparators") on the other? (3). Is the difference in treatment based on one of the grounds proscribed whether expressly or by inference - in Art. 14? (4). Were the chosen comparators in an analogous situation to the complainant’ situations? (5). If so, did the difference in treatment have an objective and reasonable justification: in other words, did it pursue a legitimate aim and did the differential treatment bear a reasonable relationship of proportionality to the 66

aim sought to be achieved? 152. This framework was applied and thereby approved by the House of Lords in A v Secretary of State for the Home Department [2005] 2 A.C 68, at para 53. 153. But in R v (Carson & Reynolds) v Secretary of State for Work and Pensions [2006] 1 AC, the House of Lords cast doubt on the above approach. Their Lordships particularly criticised the emphasis on comparators, and the artificial distinction between the question whether the chosen comparators are in an analogous situation, and the question whether the difference in treatment is justified.18 In the view of the House of Lords in Carson, if the difference in treatment is in connection with a Convention right and on a ground covered by Article 14, then the essential question is simply whether it withstands scrutiny. Accordingly, it is not necessary to establish an exact analogy. As Lord Nicholls ruled at paras 2-3: "2.. In Wandsworth London Borough Council v Michalak [2003] 1 WLR 617, 625, para 20, Brook LJ set out four questions which a court might find it convenient to consider sequentially when addressing a discrimination claim under article 14 of the European Convention on Human Rights. Subsequent judicial observations have been shown that the precise formulation of these questions is not without difficulty. And at first instance in the Carson appeal Stanley Burnton J suggested a fifth question should be added to the list: R (Carson) v Secretary of State for Work and Pensions [2002] 3 All ER 994, 1009, para 51. 3. For my part, in company with all your Lordships, I prefer to keep formulation of the relevant issues in these cases as simple and non technical as possible. Article 14 does not apply unless the alleged discrimination is in connection
18

Paras 3 (Lord Nicholls of Birkenhead), 30-32 (Lord Hoffman), 44 (Lord Rodger), 63-70 (Lord Walker of Gestingthorpe), 97 (Lord Carswell).

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with a Convention right and on a ground stated in article 14. If this prerequisite is satisfied, the essential question for the court is whether the alleged discrimination, that is the difference in treatment of which the complaint is made, can withstand scrutiny. Sometimes the answer to this question will be plain. There may be such an obvious, relevant difference between the Claimant and those with whom he seeks to compare himself that their situations cannot be regarded as analogous. Sometimes, where the position is not so clear, a different approach is called for. Then the court's scrutiny may best be directed at considering whether the differentiation has a legitimate aim and whether the means chosen to achieve the aim is appropriate and not disproportionate in its adverse impact". 154. It is respectfully submitted that this approach is the correct approach to follow in the present case and consistent with the House of Lords decision in AL (Serbia) v Secretary of State for the Home Department [2008] 1 WLR 1434 at para 27 where the House of Lords drew attention to the danger of assuming that two groups are not in an analogous situation just because there are inherent differences between the two groups. As Baroness Hale (with whom the rest of the court agreed) ruled at para 27:

"There are, also, as Lord Walker recognised in Carson, dangers in regarding differences between two people, which are inherent in a prohibited ground and cannot or should not be changed, as meaning that the situations are not analogous. For example, it would be no answer to a claim of sex discrimination to say that a man and a woman are not in an analogous situation because one can get pregnant and the other cannot. This is something that neither can be expected to change. If it is wrong to discriminate between them as individuals, it is wrong to focus on the personal characteristics which are inherent in their protected status to argue that their situations are not analogous. That is the essential reason why, in Ghaidan v Godin Mendoza [2004] UKHL 30, [2004] 2 A.C. 557, the argument that same sex couples were not in an analogous position to 68

opposite sex couples, because they could not have children together, did not succeed". 155. Articles 9, 10, 11, and 17 of the ECHR are engaged and do not have to be breached for the purposes of article 14.

156. The difference in treatment is between UK critics who have heavily criticised Islam and Islamic extremists without sanction and the Applicants as US nationals. 157. The Applicants contend that other UK nationals such as Douglas Murray, Melanie Phillips, Paul Weston, Baroness Cox, and Lord Pearson are able to criticise Islam without sanction. Other critics such as Geert Wilders are able to express their views within the UK on controversial issues, including Islam, in what is perceived by some to be an insulting or offensive manner. The Applicants who are US nationals are precluded from doing the same on the basis of their nationality even though the Second Applicant has already visited the UK. The Applicants contend that this constitutes discrimination, contrary to article 14 of the ECHR, taken in conjunction with Articles 9, 10, 11 and 17 of the same. The discrimination cannot withstand proper scrutiny.

158. In a speech to supporters at a Yorkshire pub, BNP chairman Nick Griffin, referred to Islam as a “wicked, vicious faith” that “has expanded from a handful of cranky lunatics about 1,300 years ago”.19 Muslims are regularly attacked through views which are anti-Muslim on immigration, the Koran, Mosques and Muslims generally. Although Mr Griffin and Mr Collette were tried for public order offences under the Public Order Act 1986, they were acquitted of all charges charged.20

159. The Applicants do not support Mr. Griffin or his party in any way, but note
19

See pages 163-167 of the bundle. See page 169.

20

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that his statements on Islam are more extreme than theirs. These statements have not led to a successful prosecution against him.

160. More generally, the UK has allowed "the entry in recent years of several Muslim clerics from Arab countries with a history of inflammatory statements on terrorism ”.21 The Saudi Muslim cleric Mohammed al-Arefe was admitted into the UK in Spring 2013. He has been banned from Switzerland. He has said: “Devotion to jihad for the sake of Allah, and the desire to shed blood, to smash skulls, and to sever limbs for the sake of Allah and in defense of His religion, is, undoubtedly, an honor for the believer. Allah said that if a man fights the infidels, the infidels will be unable to prepare to fight [the Muslims].”22 In August 2013, the UK admitted Muslim Brotherhood leader Gomaa Amin, despite rampant Muslim Brotherhood persecution of Coptic Christians in Egypt in the weeks preceding his admission.23

161. The difference in treatment between the above and the Applicants is because of the Applicants’ nationality, which amounts to discrimination on one or more of the prohibited grounds. Nationality is a ground for discrimination even though Article 14 uses "national ... origin" (see Gaygusuz v Austria (1996) 23 EHHRR 364, at 41). If the Applicants had expressed the same statements about Islam as those Muslims referred to above, the Home Office is unlikely to have taken the decision to exclude them from the UK.

162. There is no legitimate basis for the above discrimination because the measure is not prescribed by law (see the above analysis). If the decision was

21 22

See New York, Times Article February 12, 2009, Tab 9, 399.

Benjamin Weinthal, “Switzerland bans cleric for anti-Semitic rhetoric,” Jerusalem Post, May 28, 2013, Tab 5, 157. Robert Mendick and Edward Malnick, “Muslim Brotherhood leader Gomaa Amin is in hiding in London,” Telegraph, August 24, 2013, Tab 9, 404.
23

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prescribed by law, the threat would be no different from the threat posed by the above individuals which can and is managed through law enforcement. Hence, if there were a legitimate basis for the decision (which is denied), the discriminatory measure is not proportionate to the aim sought to be realised and the means used to achieve it. A much more proportionate response would have been to invoke crowd control measures prescribed by law and/or use law enforcement agencies to enforce the same. No such measures were taken. The Applicants repeat the analysis on necessity and proportionality above.

163. Consequently, the decision in question is discriminatory and contrary to article 14 taken in conjunction with Articles 9, 10, 11 and 17 of the ECHR.

Irrationality/Wednesbury unreasonable

164. In addition, the Applicants rely on the irrationality and/or Wednesbury unreasonable ground. For all the reasons referred to above, the decision to exclude was irrational and/or Wednesbury unreasonable because:

(1) The decision was an abuse of power.

(2) The decision applied the wrong test and misapplied the policy.

(3) The decision was ultra vires, illegal and/or erroneous in law.

(4) The decision actionably infringes the rights of the Applicants;

(5) The Secretary of State was obliged to allow the Applicants entry in the UK since their actions and views fell within the “Prevent” strategy and/or gave rise to a legitimate expectation that the Applicants would be allowed entry into the UK. 71

165. The Applicants, therefore, claim the following relief:

(1). A declaration that the decision to exclude them from the UK is unlawful and/or contrary to Articles 9, 10, 11, 14 and 17 of the ECHR as incorporated into UK law via the Human Rights Act.

(2). A declaration that the unacceptable behaviours policy is unlawful and/or ultra vires.

(3). A declaration that the decision to exclude is irrational (Wednesbury unreasonable) and/or procedurally irregular.

(4). A declaration that the Secretary of State breached the Applicants legitimate expectations vis-à-vis the “Prevent” strategy and/or Articles 9, 10, 11, 14 and 17 of the ECHR and/or s.3(1) of the Immigration Act 1971.

(5). A Quashing order depriving the decision to exclude of its effect retrospectively on the basis that the decision is ultra vires and, therefore, a nullity, or prospectively on the basis that the decision is intra vires but erroneous in law.

(6). Any order that the Court thinks fit.

ARFAN KHAN Counsel for the Applicants 4-5 Gray’s Inn Square (12/9/2013) DR ABHIJIT PANDYA (Senior Consultant) Christian Lavergne Solicitors

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