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IN THE HIGH COURT OF JUSTICE Case No: ADMINISTRATIVE COURT BETWEEN: THE QUEEN on the application of (1). PAMELA GELLER First Applicant (2). ROBERT SPENCER Second Applicant - and - 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 G
overnment’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
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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.