Guidance Note: Exclusions Powers to exclude 1 The Secretary of State has a power to exclude a foreign national from the

UK where it is conducive to the public good to do so:     At present a person must be outside the UK when they are excluded. (This may be open to argument and LAB advice should be sought in this context.) This power is either a common law or prerogative power (SIAC has suggested it is a prerogative power: EV v SSHD 2009 para 5). An exclusion decision is not an immigration decision (within the meaning of s82 NIA 2002) and there is no statutory right of appeal in respect of it. An exclusion decision can be judicially reviewed. An exclusion decision can have effect indefinitely (subject to review) or can take the form of refusal of leave to enter or entry clearance on a particular occasion.

Effect of exclusion decision 2 Where the Secretary of State takes an exclusion decision personally an immigration officer is required to refuse entry clearance or leave to enter: para 320(6) of the Immigration Rules. 3 If the person has leave when excluded that leave will be cancelled: para 321A(4) of the Immigration Rules. Leave to enter is cancelled by an immigration officer and leave to remain is cancelled by the Secretary of State; article 13(7) of the Immigration (Leave to Enter and Remain) Order 2000. (This cancels any leave enjoyed by virtue of an existing entry clearance – see article 13(1).) 4 Refusal or cancellation of leave/entry clearance is an immigration decision which attracts a statutory right of appeal. Other powers to refuse or cancel entry 5 Immigration officers have other powers to prevent persons from entering the UK. particular, they have a discretion:   In

to refuse entry clearance or leave to enter on the ground that exclusion form the UK is conducive to the public good: para 320(19) of the Immigration Rules; to cancel leave to enter or remain on the ground that exclusion from the UK is conducive to the public good: para 321A(5) of the Immigration Rules

6 This guidance note focuses on cases in which the Secretary of State personally directs that exclusion of a non-EEA national (or rather anyone outside the protection of the Community Treaties) is conducive to the public good. It does not address cases in which the IO/ECO exercises his discretion to prevent entry.

The test - is exclusion conducive to the public good? 7 This is an assessment, in the round, of whether the particular action would serve the public interest. The courts traditionally have afforded the executive a wide margin in reaching this assessment, particularly where the grounds for taking action fall within the remit of the Home Secretary’s wider responsibilities (e.g. national security, crime, public order). The following categories are grounds on which HMG has a published policy of excluding persons:      8 National security Serious organised crime “Unacceptable behaviour” Involvement in large-scale corruption in priority countries Membership of an organisation proscribed under s3 of the Terrorism Act 2000 Exclusion could be justified on other grounds subject to human rights considerations.

Reaching a judgement 9 Generally speaking, and subject to any published guidance and criteria, such as that which exists in respect of “unacceptable behaviour” (see below), the Home Secretary conducts an assessment “in the round” as to whether or not the individual’s exclusion is conducive to the public good. This is a question of risk and judgment and he needn’t be convinced of any particular conduct or state of affairs on the balance of probabilities: SSHD v Rehman [2001] UKHL 47 (deportation case). 10 Our guidance makes clear that there should always be evidence of direct involvement in the relevant activity from a reliable and credible source before using this as the basis of an exclusion. Furthermore, in order to convince the court that the Home Secretary has acted reasonably in all the circumstances, the extent of his reliance on others in reaching an assessment of conduciveness should broadly accord with their level of expertise. 11 The exclusion direction has to be made personally by the Secretary of State if it is to have the effect set out above. However, the Immigration Rules could be redrafted to provide that an exclusion decision might be taken by an official of the Secretary of State if we considered the power to be capable of delegation to such a level under the Calrtona principle. Judicial Review 12 As a matter of public law the Secretary of State needs to exercise that overall judgement reasonably and on the basis of all the information available or that which is reasonably available. His judgement is amenable to judicial review on the usual public law principles, including –  Rationality (e.g. acting on the basis on some factual matrix that is reasonable in all the circumstances)  Acting in accordance with fair procedure  Complying with any human rights engaged  Not undermining any legitimate expectation. Appeals 13 An immigration decision which accompanies an exclusion decision gives rise to a statutory right of appeal: s82 NIA 2002. The grounds of appeal are contained in s84 of the 2002 Act.

14 The grounds of appeal can be restricted in respect of a decision to refuse leave to enter or entry clearance if the Secretary of State certifies that the immigration decision was taken personally by the Secretary of State or in accordance with a personal direction of the Secretary of State on the ground that exclusion or removal from the UK is conducive to the public good: s98 of the 2002 Act. In such cases an appeal can only be brought on grounds of racial discrimination, human rights or, in the case of refusal of leave to enter giving rise to removal, the Refugee Convention. Therefore, where it has jurisdiction in these matters, the AIT can overturn immigration decisions notwithstanding that the Immigration Officer was compelled to exclude under the Immigration Rules and in accordance with the Home Secretary’s direction. 15 In such an appeal the AIT could consider the proportionality of the the exclusion decision (SIAC took such an approach in EV v SSHD 2009) . In doing so it is likely to examine the evidence on which the Secretary of State took the decision and (except in the case of refusal of entry clearance) may even have regard to fresh evidence: s85(4) and(5) and s85A(2) of the 2002 Act). In other words, the fact that the Home Secretary’s direction was reasonable and would stand up to judicial review might not prevent the AIT from substituting its own findings of fact and assessment of the merits. Therefore, in directed exclusions, where possible, it is helpful for us to be able to point to at least one “precedent fact” or circumstance that can be established on the balance of probabilities even if regard is also had to other matters “in the round”. This would assist our position both in appeals and JRs. Unacceptable behaviour 16 The following non-exhaustive definition of unacceptable behaviour has been published as a category of exclusion to target extremism. The expectation is that just one example of such behaviour would justify the imposition of an exclusion direction. “A non-British citizen, whether in the UK or abroad, who uses any means or medium including:  Writing, producing, publishing or distributing material;  Public speaking including preaching;  Running a website; or  Using a position of responsibility such as a teacher, community or youth leader To express views which:  Foment, justify or glorify terrorist violence in furtherance of particular beliefs;  Seek to provoke others to terrorist acts;  Foment other serious criminal activity or seek to provoke others to serious criminal acts; or  Foster hatred which might lead to inter-community violence in the UK.” 17 The Home Secretary will still have to weigh things up in applying the criteria to particular individuals and circumstances. Exceptions may also need to be considered and the wider public interest accounted for. For example, the guidance stipulates that exclusion should not be considered if the individual has publicly and genuinely retracted earlier views which fell foul of the criteria or if reaction to the exclusion would threaten public safety in the UK or significant British interests overseas.

Human Rights 18 The starting point is that our obligations under the ECHR apply only in respect of persons within our jurisdiction. Therefore exclusion (and immigration) decisions taken when the individual is outside our jurisdiction would not automatically engage the ECHR. However:   where a person has an established family life with people in the UK an exclusion direction might engage the rights of those family members within jurisdiction and fall to be justified under article 8(2). the ECHR might be engaged when the purpose of an exclusion is to prevent the very exercise of a human right: eg Farrakhan v SSHD [2002] EWCA Civ 606 where the individual was excluded in order to prevent him from exercising his freedom of expression. (NB freedom of expression includes a right to receive information so a third party could arguably bring a judicial review on such grounds.)

19 Once qualified human rights are engaged the interference of exclusion will fall to be justified in accordance with legitimate aims and proportionality. The established categories of exclusions already accord closely with the legitimate aims: national security, public safety, the prevention of disorder or crime and the protection of the rights and freedoms of others. Interference with the right must always be proportionate Fairness and consistency 20 Directions must accord with any published policy, must be based on reliable evidence and must be made in a consistent manner. (NB consistency is a real concern given that the class of people who could potentially be considered for exclusion extends across the entire world and we rely on persons coming to our attention to exclude.) 21 Once a precedent is set we may be under pressure to apply it to others in the same category that we know about or should know about even if they are not intending to come to the UK. The use of the warning index might be considered as a workable alternative. Notification 22 There is no statutory obligation to notify individuals of, and provide reasons for, an exclusion decision (the Immigration (Notices) Regulations 2003 apply to immigration decisions but not exclusion decisions). However, as a general rule notification should be given unless there is good reason not to. 23     Guidance provides that the individual will be notified of his exclusion except where it may: Breach a person’s confidentiality (e.g. he is currently in prison and his mail is liable to be screened); Compromise ongoing intelligence or operational activities; Severely damage UK diplomatic relations; Significantly increase the risk to British personnel or interests overseas.”

24 In any challenge to a failure to notify we would seek to establish what, if any, detriment had been suffered by the individual. (NB if the exclusion decision is to be published it may be advisable to notify the individual in advance of the decision.)

Publication 25 Traditionally, exclusions have not been publicised: some of the material and issues are sensitive; it could be harmful to publicly state that exclusion is conducive to the public good when the direction may be overturned or revised; matters may be sub judice if they are being challenged in the courts. But there may be exceptions: for example, if an individual publicly criticises an exclusion direction. 26 However, in the context of unacceptable behaviour exclusions, in October 2008 the then Home Secretary announced that she would consider in all future cases whether it would be in the public interest to disclose that an individual had been excluded and with a presumption that the public should be informed. The following factors are to be considered:      Whether there is a clear legitimate purpose connected with the Home Secretary’s functions for disclosure (public order, national security, community relations)[or any legal barriers to prevent disclosure]; Whether disclosure would place the individual or others at risk; Whether there are operational reasons which make it undesirable for the excluded individual to be notified that he had been excluded; Whether disclosure would cause harm to significant British interests, either in the UK or overseas; or Whether the reaction in the UK or overseas would significantly damage the credibility or efficacy of any strand of CONTEST

27 Essentially, the justification is that Data Protection Act 1998, ECHR and confidentiality concerns may be, on a case by case basis, overridden by the public interest in disclosure for the purposes of:    Reassuring the public of the effectiveness of our controls; Improving community relations; and Deterring others who might wish to engage in such behaviour.

28 A consistent approach will need to be taken to notification and publication of UB exclusion directions. We will need to justify why we have withheld notification yet published the direction. Allowing representations before publication will mitigate the risks of legal challenge to publication. “Breach” of an exclusion 29 Unlike a deportation order which cancels leave to enter or remain, an exclusion direction requires further action to give it effect (cancellation or refusal of leave). If Immigration Officers fail to refuse or cancel leave to enter and the individual does indeed enter then he is not committing an offence or breaching any order. He would only be breaching the immigration laws by illegally entering when Immigration Officers have actually refused or cancelled his leave.

Review and revocation 30 Practice suggests that exclusion directions last up to 10 years although current policy is to review directions to exclude every 3 years. Where fresh material comes to light it would be good practice to review the direction and the underlying assessment of conduciveness. This will protect against legal challenges and help demonstrate the proportionality of the overall scheme. 31 On reviewing a direction it would be for the Home Secretary personally to revoke any exclusion direction just as he personally makes them. Arguably, it would then be irrational or abusive for an Immigration Officer to have regard to the underlying material in exercising his discretionary powers to refuse entry, absent any new information available to him. Alternatives 32 If the intention is merely to prevent attendance of an individual at a particular event or to exclude because of prevailing and transient circumstances (i.e. community tensions), it might be more proportionate for Immigration Officers simply to refuse entry on that particular occasion using their own discretionary powers. In such circumstances the Home Secretary is free to share information with Immigration Officers to assist their decision making but the ultimate decision as to conduciveness should be left to the officers. This approach would not prevent the individual from attempting to enter the UK subsequently. 33 Placing an individual on the Warnings Index is another proportionate alternative in some cases. Guidance provides that it should be considered when the following requirements are met:        The person is a visa national requiring entry clearance before travelling to the UK; The person does not already hold a valid UK entry clearance; The person does not already have valid leave to enter or remain in the UK; The person is not a high profile or high harm case; There is no expectation that the person will travel to the UK in the short term; There is no overriding operational reason for immediate exclusion; and There is no overriding public interest reason for immediate exclusion.

September 2009