This case was about much more than immigration. It was also about the problems of the Middle East. In fact, the Israeli–Palestinian conflict and the British authorities’ take on a fiery Palestinian preacher – an Israeli citizen named Raed Salah Mahajna (“M”) who flew into Heathrow from Tel Aviv – lay at the heart of the matter. In September 2011, the Administrative Court found that following his arrest M’s initial detention was unlawful. Then last October, the First Tier Tribunal dismissed M’s appeal against the decision to deport him from the UK. In April 2012, the Upper Tribunal (Vice President CMG Ockelton and Judge Pitt) reversed the FTT’s decision and allowed M’s appeal “on all grounds” because the Secretary of State for the Home Department “acted under a misapprehension as to the facts” (at  & ). Details of the UT’s decision are available in Part 2 of this post.
M is the leader of the northern arm of the Islamic Movement in Israel or, from his perspective, Palestine. He was elected mayor of the Arab Israeli town called Umm al-Fahm on three occasions and, in order to attend meetings and speak at conferences, had visited the UK on four occasions in the past. No disorder resulted from these visits and, in 2011, M was invited, inter alia, by the Middle East Monitor (or MEMO) to make a speech and attend a meeting – chaired by Baroness Tonge – in the House of Lords.
On 23 June 2011, an exclusion order was made at the SSHD’s personal direction to prevent M from attending the meeting. Nevertheless, unaware of the ban and intending to return home on 5 July 2011, on 25 June 2011 M used his Israeli passport to travel to the UK and an unwitting immigration officer granted him leave to enter for six months. After attending the meeting in the House of Lords on 27 June, M was arrested and detained which meant that the remainder of his speaking tour was effectively terminated by the SSHD. Ironically, multiple legal proceedings did not help the government because the turning of the wheels of justice kept M in the UK until 16 April 2012 after which he returned to Israel.
Administrative Court (September 2011)
Last year Mr Justice Nicol – read judgment – found that the UK Border Agency did not provide M with proper and sufficient reasons for his arrest and that he was unlawfully detained for three days. Moreover, he “was entitled to know why he was being arrested. Even in English that information was not conveyed to him” which “meant the arrest was unlawful” (at ). M had a personal interpreter who was happy to interpret but the five immigration officers who arrested M in his hotel on 28 June 2011 did not allow his interpreter to interpret. Instead, during the journey from the hotel to Paddington Green Police Station, Immigration Officer Church used his iPhone to communicate to M in Arabic why he was being arrested – M’s IS91R (Reasons for Detention) was not explained to him in Arabic.
Furthermore, M was wrongly told that he was being arrested for “immigration offences” whereas the real reason was that his presence in the UK was not considered conducive to the public good and thus a deportation order was made against him under section 3(5)(a) of the Immigration Act 1971.
The Case Against Mahajna
The SSHD thought that M’s presence in the UK was not conducive to the public good. Given the measures in place for provoking others to commit terrorist or criminal acts or foster hatred, it was the government’s view that M’s actions were caught by the Unacceptable Behaviours Policy: it was emphasised that M’s Islamic Movement had links to Hamas and that he had repeatedly made calls for martyrdom.
The fivefold case against M was that he (1) wrote an anti-Semitic poem; (2) invoked the blood libel in a sermon; (3) incited violence and martyrdom if the Al-Aqsa mosque was threatened; (4) had been indicted by the Israeli authorities; and (5) funded Hamas.
Article 10 of the ECHR
1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.
2. The exercise of these freedoms, since it caries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for the preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.
The Unacceptable Behaviours Policy
The policy owes its existence to the 7/7 London bombings: following a consultation it was announced by the Home Office on 24 August 2005 and allows the SSHD to exclude and deport people from the UK. Under this policy the list of unacceptable behaviours is indicative rather than exhaustive. It covers any non-UK national whether in the UK or abroad who uses any means or medium including:
- Writing, producing or distributing material
- Public speaking including preaching
- Running a website or
- Using a position of responsibility such as teacher, community or youth leader
To express views which:
- Foment, justify or glorify terrorist violence in furtherance of particular beliefs
- Seek to provoke others to terrorist acts
- Foment other serious criminal activity or seek to provoke others to serious criminal acts or
- Foster hatred which might lead to inter-community violence in the UK.
The Immigration Law Practitioners’ Association
ILPA’s response to the consultation document was that “existing powers were wide enough to secure the deportation of those for which new powers were sought.” Particular concern was also raised at whether the powers sought by the SSHD would “be used to stifle debate mainly because the views expressed were unacceptable to a government.” ILPA – which is headed by Ian Macdonald QC – thought that the list was “imprecise and subjective” and its use would inevitably result in the abuse of ministerial power. Hence ILPA concluded that “these powers” did not “contribute to making the world a safer place.” Seven years later MEMO, which invited M for the ten-day speaking tour, has stated that the government “conflated criticising Israel with anti-Semitism.”
The SSHD’s case was shaky because apart from the government’s own views it rested almost entirely on the Common Security Trust’s opinion of M. No one else supported the government in court and MEMO has accused the trust of being a “British charity with a record of smearing critics of Israel as anti-Semitic.”
The First Tier Tribunal
In relation to Article 10 the FTT found that by deporting M the interference with freedom of expression would be proportionate to the legitimate aim of preventing crime or disorder. Moreover, the FTT also rejected M’s submissions based on Articles 8, and 11 of the ECHR and a legitimate expectation for admission without hindrance to the UK.
M appealed to the UT on six grounds: these included the FTT’s erroneous findings that M’s Article 8, 9 and 11 ECHR rights were not engaged. It was contended that the FTT erred in assessing the degree of interference with M’s rights as protected under Article 10. It was also M’s case that the FTT had failed to; provide reasons as to why M’s deportation was conducive to the public good and proportionate; give regard to evidence in M’s case which he considered supportive; and consider evidence which demonstrated that the SSHD considered M’s exclusion to be “finely balanced”.
Centrally, things turned most on whether the FTT made an error of law in reaching its conclusion concerning the intensity of review to which the SSHD’s assessment of the risk posed by M to public safety should be subjected. The SSHD’s conclusions regarding the public interest are extremely important but are by no means certain. M complained that by giving primacy to the SSHD’s views, the FTT failed to consider the individual facts of his case.
Please see Unacceptable Behaviour and Deportation, Part 2 for more on the UT’s decision.