The Upper Tribunal
The UT thought that although the SSHD’s views on the public interest were “entitled to great weight” (because of her constitutional function to make decisions in the public interest in light of her expertise) it was “clear” that the ministerial view was “not conclusive” (at ). In comparison to judicial review proceedings such as Naik  EWCA Civ 1546, remaking an executive decision in M’s case by virtue of a statutory appeal “was not a usurpation of executive functions: it is an exercise of a power constitutionally given to the judiciary” (at ). In any event, the purpose of an appeal was more involved and required an examination of “all the material relevant to the decision” and a court or tribunal should
 … [N]ot shrink from subjecting them to proper examination in the light of the circumstances in which those views were reached, and the material upon which they were reached; and it may have to decide the extent to which it can give to those views the weight that would be properly and usually attributed to them.
(1) The Poem
In the decision letter the SSHD wrongly imputed the following verses to M:
You Jews are criminal bombers of mosques, Slaughterers of pregnant women and babies. Robbers and germs in all times, The Creator sentenced you to be loser monkeys, Victory belongs to Muslims, from the Nile to the Euphrates.
Please see full text of the poem at  of UT’s determination.
In reality this was not written by M in 2003 as claimed. Instead, contrary to what was ascribed to him, “a message to the oppressors” written by M was published in the Islamic Movement’s periodical in January 2002. For the UT, the poem – which the SSHD wrongly interpreted as making a reference to “you Jews” – was taken out of context because it was incorrectly translated. In fact the reference was only to “you” (meaning the Israeli state). Although the SSHD ultimately accepted that there was no reference to “you Jews”, she still maintained that it could only sensibly have meant that. Yet, notwithstanding the fact that references in the poem to “oppressors” who “decayed our land” and to “monkeys” and “germs” offended the SSHD’s advisers (Common Security Trust), the UT found that “the poem cannot be read as addressed to Jews” (at ).
It was noted that there was “no reason” that M was “remotely responsible for the travesty of poem [relied on by the SSHD]” which made it “difficult too see any justification … to act on the inaccuracy rather than to protect an individual’s right to freedom of speech” (at  & ). Thus, there was no evidence than either the incorrect or the correct version of the verses relied upon “fostered hatred or led or inter-community violence”. On any view, the simple conclusion was that M’s poem did not fall within the Unacceptable Behaviours Policy and did not contribute to the argument that M’s deportation was conducive to the public good (at ). The UT recorded that there was “no room for dispute” that the SSHD “was mislead as to the terms of the poem” (at ).
(2) The Blood Libel
In February 2007 M was banned from entering Jerusalem’s al-Aqsa mosque. However, he attempted to enter the mosque: when he was refused entry M gave a sermon nearby which – apart from perceivably inciting racism, violence and martyrdom – referred to the blood libel (the degrading and slanderous accusation that the Jews “use the blood of children to make bread”: see UT at  – ).
Remembering the historic persecution and mass murder of the Jews in Europe, the UT accepted the government’s position that any iteration of the blood libel, apart from being hugely offensive to the Jewish community, had the potential to foster hatred and cause inter community violence (at ).
M denied any references to “Jewish” holy bread: Haaretz reported M said exactly that. But the eminent Israeli scholar Professor Ilan Pappé, who described the sermon as “incoherent and emotive”, and M collectively maintained that “Jewish” was never used in the sermon as contended by the SSHD. However, the extract of the sermon in  of the determination is clear that the question “what used to happen to some of the children of Europe, when their blood used to be mixed in the dough of the holy bread” was asked and comparisons were drawn by saying that “we [the Muslims]… never” break the fast “during the month of Ramadan with the blood of the children.”
The UT explained that, like the poem, the intemperate parts of the sermon were balanced with more emollient bits. Unlike Naik – who considered Judaism to be Islam’s “staunchest” enemy – M’s acceptance of Jews and Christians as “People of the Book” took some sting out of his more extreme statements. The fact M thought that Islam accepted Moses and Jesus as prophets meant that “the sermon was not all fire and brimstone” (at ). It was also noted that M campaigns for the protection of the al-Aqsa mosque and advocates, or dreams should one say, that the honour of Jewish synagogues and Christian churches will be similarly protected under a re-established Muslim hegemony (or “Caliphate”) in Jerusalem.
M gave a long clarification about how he had not referred to the blood libel. Instead, he was referring to the Spanish Inquisition and the Bosnian War: this was backed up by Professor Pappé who said that the sermon was “neither anti-Semitic nor even anti-Zionist” and that there was no reference to blood libel. For the UT the fact that M did not clarify what he said at the time (and required ten paragraphs and experts to explain himself later) meant that his defence was “wholly unpersuasive” and his comments could not be “taken to be anything other than a reference to the blood libel against Jews” (at  & ).
Therefore, the SSHD was entitled to use the policy against him because the truth of the matter was that M’s statements about “children’s blood” and “holy bread” were “bound to be seen as a reference to blood libel” because “[i]f he had meant to refer to Christians using the blood of others to make bread, which he seems to consider less offensive than referring to Jews doing so, then he could have inserted the word ‘Christian’ into the text of his sermon as he does in paragraph 175 of his explanation.” However, given that the sermon was given by M on a “somewhat turbulent day”, the UT was in agreement with Professor Pappé “that the purport of the sermon as a whole was against the actions of the state of Israel towards the al-Aqsa mosque and that the focus was not on the blood libel.”
(3) Al-Aqsa Mosque and Martyrdom
On the one hand, owing to the excavations in Jerusalem, the SSHD accepted that Palestinians in the old city of Jerusalem, and members of the international community, perceived Israel as a threat not only to al-Aqsa (Islam’s third holiest site) but also to the city at large: people had the right to protest over that. On the other hand – in light of statements such as “the most beautiful moments of our destiny will be when we meet Allah as martyrs in the premises of the al-Aqsa mosque” – she thought that M was using the issue of the mosque to promote violence by preaching martyrdom.
Unsurprisingly, M’s 2007 sermon – in which martyrdom was the leitmotiv – could not be seen as promoting passive resistance. Rather, references to blood, killings and massacres and the courting of martyrdom made it plain violent protest was being promoted – “welcoming martyrdom cannot be a call to peaceful protest” (at ). But later statements in 2009 and 2011 that the SSHD attributed to M were not considered to be on the same footing. The UT treated these allegations “with some caution” because “no context for the words was offered” which made it “impossible” to say that violence or martyrdom was actively sought (at ). The UT agreed with Professor Pappé that M’s words were directed at the Israeli state and not the Jews: references to blood were only connected to Palestinians killed by Israeli forces.
(4) The Israeli Indictments
When the exclusion order was made two indictments, in connection with his 2007 sermon, were brought against M in the Jerusalem Magistrates’ Court. The first – related to inciting violence and racism – claimed unrest followed after the sermon was delivered but the UT thought that the mere existence of the indictment did not mean that what was alleged could be made out: the SSHD should not have considered it (at ). The second indictment charged M with obstructing a police officer – who wanted to search M’s wife at Allenby border terminal – in the line of duty was considered as a minor incident: nothing turned on it in the appeal (at ). The UT characterised the indictments as “very tardy” (at ).
(5) Hamas Links
M was a director of The Union of Good. It is banned in Israel and the US for having links to Hamas. In 2005, M was convicted in Israel for possessing funds belonging to unlawful associations: he plea-bargained with the authorities and was sentenced to three and a half years’ imprisonment (most of which he had already served on remand). The UT observed that only the military, and not political, wing of Hamas was illegal in this jurisdiction and “what amounts to a criminal offence in Israel would not necessarily be the case in the UK” (at ). Since the SSHD failed to furnish evidence that M funded the banned wing of Hamas, it was difficult to categorise M’s fundraising for a legal organisation as a threat to the UK.
M maintained that his actions were weirdly caught by changes in Israeli law which made his lawful work unlawful – even the SSHD conceded that it was unclear that the funds were used improperly. M himself had not funded Hamas. Rather, he was involved with two organisations which had mixed funds with other organisations which funded Hamas. The UT set out a list of mitigating factors at  and noted that the Israeli state prosecutor commented that M did “not” pose “a danger to the public of the State of Israel.” Other factors such as the short duration of the sentence received coupled with the fact that there was no evidence that M’s deeds caused hatred or violence meant that his past conviction for having links to Hamas did not fall within the Unacceptable Behaviours Policy and were, therefore, irrelevant to the exclusion decision.
Looking at the fivefold case against M, the UT thought that only the references to the blood libel and martyrdom potentially fell within the Unacceptable Behaviours policy. Given that only a single reference to the blood libel was made five years ago (distinguishing Naik whose utterance that “every Muslim should be a terrorist” lead to his five year multiple entry visitor visa being revoked), it could be not be said that that evidence was “the tip of the iceberg” because it was all the evidence there was (at ). The UT stressed that
 This is not a case like Naik, or like GW v SSHD  UKAIT 00050, where the individual in question had a clear agenda in his public pronouncements that was pervasive and potentially offensive or dangerous. In this case the danger or offence can only be discovered by a detailed examination of the appellant’s output, and then can only be reliably based (as it turns out) on a few words on one occasion. So from that point of view the context is that the matters upon which the Secretary of State relies are not at the heart of the appellant’s message; and indeed it is not easy to see that any reasonable observer would associate the appellant with them in any general sense. That is not, of course, to say that the two factors that we have found relevant are not to be taken into account at all, but it is necessary to look at the whole picture.”
M’s visits to other countries did not promote inter-community violence or hatred. Similarly during his lengthy presence in the UK while his appeal was being decided, M did not threaten the public good or undermine public order. It followed that the SSHD’s views would not prevail and the interference with M’s Article 10 rights was disproportionate. Conversely, the fact that the risk posed by M was not actualised did “not show that the risk does not exist”: thus, the SSHD’s decision was rooted in “what she may thought was a particularly sensitive time” (at ).
In respect of the substance of Article 10, the UT was content with restating the principle that freedom of expression is a “strong” right. It is “entitled to general protection.” Hence, “weak arguments” were “unlikely to show that its suppression in an individual case is justified” (at ). In the instant case, the arguments against suppressing freedom of expression were considered “very weak” because none of the dangers foreseen by the SSHD were shared by any of the other countries which M had visited. Indeed, there was “no evidence” that “even Israel sees the danger that the Secretary of State sees.” Essentially, the SSHD’s views in the case were an unfair portrayal of M.
But she will no doubt take comfort in Lord Bingham’s A v Secretary of State for the Home Department  2 AC 68,  denouement, “reasonable and informed minds may differ” and “any prediction about the future behaviour of human beings (as opposed to the phases of the moon or high water at London Bridge) is necessarily problematical.”
Given its ruling on Article 10, the UT did not find it necessary to deal with M’s complaints in relation to the violations of his Article 8, 9 and 11 rights.
This case was about how someone’s words or actions can be interpreted by others. Keeping this in contemplation it was decided that whilst there was no lawful basis for the SSHD to implement the exclusion order on the information she had, the decision did not entitle M to reenter the UK – regardless of his future behaviour or whatever he may have been found to have said in the past (at ).