Freedom of expression curtailed for ‘unacceptable behaviour’

Naik, R (on the application of) v Secretary of State for the Home Department [2001] EWCA Civ 1546 (19 December 2011) Summary

The England and Wales Court of Appeal has upheld a decision to refuse entry to the UK to an Indian national, finding that exclusion on the basis of his public statements constituted a justifiable interference with the right to freedom of expression under the European Convention on Human Rights.

Facts

Dr Zakir Naik is a Muslim speaker from India, reputed internationally for his views on Islam and comparative religion. In 2010, Naik made plans to visit the UK on a speaking tour, as he had done regularly since 1990.

Two days before Naik was due to arrive in the UK, the Home Secretary decided to refuse him entry. Naik was told that he was being excluded from the UK for “engaging in unacceptable behaviour by making statements that attempt to justify terrorist activity and fostering hatred”.

On 9 August 2010, the Home Secretary sent a letter to Naik confirming her decision. In this letter the Home Secretary included a list of Naik’s statements as evidence of his ‘unacceptable behaviour’, as well as purported examples of the impact of his statements on those engaged in terrorism.

After the Home Secretary’s decision was upheld by the High Court, Naik took his challenge to the Court of Appeal. One ground of appeal was that the Home Secretary’s decision breached the right to freedom of expression enshrined in article 10 of the ECHR, and was therefore unlawful under the Human Rights Act 1998 (UK).

Decision

Although there was no challenge to the legality of UK immigration policy, its application in Naik’s case is central to the findings regarding the ECHR. Following the London bombings in 2005, the then Home Secretary introduced an ‘unacceptable behaviours’ policy prescribing behaviours upon which persons may be excluded or deported from the UK. The policy was amended in 2008 to the effect that once a person is found to have engaged in one of the ‘unacceptable behaviours’, the presumption in favour of exclusion can only be displaced if that person proves he or she has publicly repudiated the past behaviour.

A number of Naik’s past speeches fell within the ‘unacceptable behaviours’ policy. These included statements that “as far as a terrorist is concerned, I tell the Muslims that every Muslim should be a terrorist” and “if a Muslim becomes a non-Muslim and propagates his/her new religion then there is a ‘death penalty’ for such a person in Islam”. The Home Secretary considered that Naik had not discharged the burden of proof in terms of publicly repudiating such views.

The Court of Appeal considered the ECHR at two levels.

First, the Court considered the territorial basis of the right to freedom of expression under article 10. As an alien not physically within the UK, there was authority for the argument that Naik could not invoke ECHR rights. The Court of Appeal shied away from limiting article 10 by this notion of strict territoriality but ultimately concluded that it was unnecessary to decide the point. Instead, it proceeded on the basis that article 10 was engaged in any case by Naik’s supporters in the UK, whose right to freedom of expression includes the freedom to receive information.

Second, the Court considered whether any interference with article 10 rights was lawful and justifiable. Article 10(2) of the ECHR provides that the right to freedom of expression may be subject to such interference as is necessary to, inter alia, protect public safety and the rights of others. The Court of Appeal emphasised that in cases concerning national security, decisions of government ministers must be attributed great weight. Nevertheless and particularly given the importance of freedom of expression, it is the distinct role of the courts to strictly supervise any interference with article 10 rights. In this case, the Court of Appeal found that the interference was proportionate to the legitimate aims of the ‘unacceptable behaviours’ policy and that the Home Secretary gave relevant and sufficient reasons for her decision.

While the Court may not have been overly persuaded by the depth of the evidence regarding Naik, and in particular not by the link drawn between Naik’s statements and the actions of those engaged in terrorism, it stressed that its task was of review rather than substituting its own views for those of the Home Secretary. In the words of Lord Justice Gross, “the decision reached by the [Home Secretary] was well within the wide margin of appreciation she enjoys”.

Relevance to the Victorian Charter

The right to freedom of expression, including the freedom to seek, receive and impart information, is set out in section 15 of the Charter. Under section 15(3), the right to freedom of expression may be subject to lawful restrictions, which are similar to the interference permitted by article 10(2) of the ECHR.  Naik’s case may provide guidance as to the likely interpretation of section 15(3) by Victorian courts, as well as the interpretation of limitations more generally under section 7(2).

The decision can be found online at: http://www.bailii.org/ew/cases/EWCA/Civ/2011/1546.html

Daniel Allman is a Solicitor with the Human Rights Law Group at Mallesons Stephen Jaques