Sun Myung Moon (Human rights, entry clearance, proportionality) USA [2005] UKIAT 00112 (30 June 2005)

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URL: http://www.bailii.org/uk/cases/UKIAT/2005/00112.html
Cite as: [2005] UKIAT 00112, [2005] Imm AR 624, [2006] INLR 153, [2005] UKAIT 00112, [2005] UKIAT 112

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Sun Myung Moon (Human rights, entry clearance, proportionality) USA [2005] UKIAT 00112

IMMIGRATION APPEAL TRIBUNAL

Date of hearing: 14 March 2005

Date Determination notified: 30 June 2005

Before

The Honourable Mr Justice Ouseley (President)

Mr C M G Ockelton (Deputy President)

Mr D K Allen (Vice President)

Between

REVEREND SUN MYUNG MOON	APPELLANT
and
Entry Clearance Officer, Seoul	RESPONDENT

For the Appellant: Mr D Pannick QC & Ms K Gallafent, instructed by Mark Brann & Co

For the Respondent: Miss M Carss-Frisk QC, and Mr T de la Mare instructed by Treasury Solicitor

DETERMINATION AND REASONS

This appeal concerns the refusal in September 2003 by the Entry Clearance Officer Seoul to grant entry clearance to the Reverend Sun Myong Moon for a six-month visit visa to the United Kingdom. The Reverend Moon is the spiritual leader of the Family Federation for Unification and World Peace, the umbrella body for the activities of the Unification Movement. He lives in the USA and is 85 years old.

This case is not anonymised because the Appellant's leading role in the Unification Movement is crucial to his claim and it would be very difficult for the decision to be understood if it were so anonymised that neither he nor his organisation could be identified. Anything less would enable his identity readily to be inferred. He does not face persecution and requires none of the protection which anonymity might afford, nor does he seek it.

History

We can set out the history of the application briefly.

The Appellant last visited the United Kingdom in 1978. In 1978, an appeal had been allowed against the Secretary of State's refusal to extend the Appellant's permission to stay as a visitor on the ground that he might not leave at the expiry of the extension. In 1989, the Secretary of State decided that the Appellant should not be admitted to the United Kingdom because of his character and conduct. An Adjudicator again allowed the appeal and the necessary letters of consent were then issued in 1991 and 1992, but were not taken up.

In 1995, the Secretary of State decided that the presence in the United Kingdom of the Appellant would not be conducive to the public good, but that decision was quashed on Judicial Review because of a want of procedural fairness in telling the Appellant what had changed since the issue of the two letters of consent. The Secretary of State then undertook a review of the decision and invited representations from the Appellant and a number of others who were interested in the exclusion of the Appellant from the United Kingdom.

By a letter of 12 April 2001, the Secretary of State told the Appellant that he was minded to exclude him on the grounds that his presence in the United Kingdom would not be conducive to the public good, and inviting representations before a final decision was made. The representations of others were also invited. Correspondence between the Appellant's solicitors and the Secretary of State ensued but ultimately the Secretary of State decided to exclude the Appellant in his decision of 8 May 2003, notified on 15 May 2003. This was a decision which he made personally, on the grounds that the presence in the United Kingdom of the Appellant would not be conducive to the public good. There was some debate about the role of public order as the basis for concern as to the public good.

An application for entry clearance as a visitor for six months was made in July 2003 and in a decision dated 28 September 2003, the application was refused, as it had to be under paragraph 320(6) of the Immigration Rules. There were two earlier purported such decisions in July and September 2003, which the Secretary of State recognised had flaws in them.

The Legal Framework

The 2002 Act confers a right to appeal from a refusal of entry clearance: section 82(1) read with (2)(b). Where a decision to refuse entry clearance is made wholly or partly on the ground that the Secretary of State has directed that the exclusion of the person to whom the decision relates is conducive to the public good, that person's appeal to an Adjudicator is limited to the ground that the decision is unlawful under section 6 of the HRA as being incompatible with the Appellant's Convention rights: sections 84(1)(c) and 90(1) and (4).

Article 1 of the European Convention on Human Rights provides that:

"The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section 1 of this Convention".

Article 9 of the Convention states :

"1 Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance.

2 Freedom to manifest one's religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others".

Article 10 of the Convention states :

"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 a 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 carries 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 preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary."

Article 11 of the Convention states :

"1 Everyone has the right to freedom of peaceful assembly and of freedom of association with others, including the right to form and to join trade unions for the protection of his interests.

2 No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others. This article shall not prevent the imposition of lawful restrictions on the exercise of these rights by members of the armed forces, or the police or other administration of the State."

Article 14 of the Convention states :

"The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status".

The Appeal

The Appellant appeals to the IAT from the dismissal of his appeal by an Adjudicator, Mr M A Clements, promulgated on 19 April 2004. In essence he repeats the grounds upon which he relied before the Adjudicator, although taking issue with a number of conclusions reached by the Adjudicator and drawing on the decision of the Court of Appeal in Huang and others v SSHD [2005] EWCA Civ 105.

The grounds of appeal, shortly, are:

(1) That the Adjudicator erred in law in holding that the Appellant could not rely on any Article of the ECHR other than Article 8 as a basis for saying that the refusal of entry clearance breached his Convention rights; he could rely on Articles 9, 10 and 11 as the binding decision in R (Farrakhan) v SSHD [2002] QB 1391 made clear and as was correct even if Farrakhan were not binding to that effect;

(2) On the merits, there was a breach of Convention rights and the Adjudicator was wrong not to find such a breach; even if the IAT were against the Appellant on the first ground, it was asked nonetheless to reach a view on the latter.

The Secretary of State contended that the Adjudicator was right as to the limited ambit of the Convention in entry clearance cases, and Farrakhan reached no decision binding on the Adjudicator or on the IAT. In any event, there had been no violation of the Appellant's rights; indeed they were not materially engaged.

The purpose for which entry clearance was sought was that, as the spiritual leader of the Unification Movement, the Appellant wanted to meet with members of the Federation in the United Kingdom and to give them advice, guidance and inspiration and also to speak at invitation only events. This put shortly was the basis upon which Articles 9, 10 and 11 of the ECHR were relied on.

The effect of the decision in Farrakhan

The first submission by Mr Pannick QC on behalf of the Appellant was that the decision in Farrakhan was binding and to the effect that Articles of the ECHR other than Article 8 could be relied on for the purpose of entry clearance into the United Kingdom. That case notably concerned Article 10. The Adjudicator had distinguished Farrakhan on the basis that the discussion of Article 10 was based upon a concession made for the purposes of that case, that Article 10 could be relied on by Farrakhan. Miss Carss-Frisk QC for the Secretary of State maintained that the issue of "extra-territoriality" had been dealt with by concession and not by consideration or decision. It had only considered what rights could be engaged regardless of that point.

We turn to Farrakhan. He was a United States citizen who wished to visit the United Kingdom. He was excluded by the personal decision of the Secretary of State on conducive grounds, similar to those in the present case. He wanted to speak to possible supporters or interested hearers of his preaching and moral teaching.

The arguments as to what the Court of Appeal meant pose some difficulties. The arguments cannot be understood, and the difficulties appreciated without extensive citation from the decision.

Paragraphs 32 to 34 read as follows:

"32 Mr Pannick, who appeared for the Secretary of State before Turner J, had conceded that the facts of the case engaged article 10 of the Convention. We gave advance warming to counsel that we wished to hear submissions as to why this was so. This led Miss Carss-Frisk, who appeared for the Secretary of State before us, to submit that article 10 was not in fact engaged. Mr Farrakhan had been refused entry because his presence in this country was not desirable. In those circumstances article 10 gave him no right to demand entry in order to exercise his freedom of speech within this country.

33 Before the hearing of this appeal we had entertained doubts as to whether article 10 was engaged where the authorities of a state refused entry to an alien, even if their sole reason for dong so was that they did not wish him to exercise a freedom to express his opinions within their territory. Article 10 requires the authorities of a state to permit those within its boundaries freely to express their views, even if these are deeply offensive to the majority of the community. It did not seem to us to follow that those authorities should be obliged to allow into the state a person bent on giving its citizens such offence.

34 It is a remarkable fact that almost all the articles of the Convention which permit, for specified purposes, restrictions on the freedoms that they guarantee do not include in those purposes the exercise of control of immigration. This strongly suggests to us that those who negotiated the Convention only envisaged that its obligations would apply to the treatment of individuals who were within the territory of the member state concerned. This impression is enhanced by the fact that, under article 5(1)(f), an exception to the right to liberty is "the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country". The Convention is, however, a living instrument and, in accordance with the requirement of section 2 of the Human Rights Act 1998, we must have regard to the Strasbourg jurisprudence when considering whether article 10 imposes obligations in relation to an alien who is seeking admission to a member state. In this context we should record that, for the purposes of this case, the Secretary of State was prepared to accept that the fact that an individual was neither a citizen of a member state nor within the territory of a member state did not, of itself, preclude the application of the Convention. We have proceeded on the basis of that concession without examining whether or not it is correctly made."

So far so good, and Miss Carss-Frisk understandably put great emphasis on those paragraphs and the last two sentences in particular. It is what then follows immediately and without further explanation, which has been a source of debate. She had the advantage of making the concession and therefore of knowing what she meant but that may only take us part of the way.

Paragraphs 35 and 36 then say:

"35 A similar issue to that with which we are concerned arose in relation to article 8 of the Convention in Abdulaziz, Cabales and Balkandali v United Kingdom (1985) 7 EHRR 471. The applicants were women settled in the United Kingdom who complained that their rights to respect for family life were infringed because their husbands were refused permission to enter in order to join them. The Government argued that article 8 did not apply to immigration control. Both the European Commission of Human Rights and the European Court of Human Rights rejected this submission, at pp 494-495, para 59, holding that immigration controls had to be exercised consistently with Convention obligations and the exclusion of a person from a state where members of his family were living might raise an issue under article 8.

36 The court observed in the next paragraph that the applicants were not the husbands but the wives, who were complaining not of being refused leave to enter, but as persons lawfully settled in the country of being deprived of the society of their spouses there. However, the court observed, at p 497, para 67:

'in the area now under consideration, the extent of a state's obligation to admit to its territory relatives of settled immigrants will vary according to the particular circumstances of the persons involved. Moreover, the court cannot ignore that the present case is concerned not only with family life but also with immigration and that, as a matter of well-established international law and subject to its treaty obligations, a state has the right to control the entry of non-nationals into its territory.'"

After further citation of Article 8 case law, the Court then said:

"38 It is apparent, however, that an immigration decision can bring article 8 into play. Furthermore, we have no doubt that if a state were to refuse entry with the motive of preventing the enjoyment of family life because, for instance, of a policy of opposing the intermarriage of its citizens with aliens the court would hold that article 8 was infringed.

This could be read, and it was submitted, should be read as containing a decision on the role of Article 8 in entry clearance cases. The Court then turned to Article 10.

The consideration of Article 10 involved, in Agee v UK (1976) 7DR 164, a deportation case. The Court contemplated that there might have been a justified complaint of a breach of human rights if the deportation had been because of the manner in which any rights to freedom of expression had been exercised. But the Court then turned to Piermont v France [1995] 20 EHRR 301; a German MEP entered French Polynesia and denounced French nuclear tests in the Pacific; she was expelled. She was also excluded from entry to New Caledonia because her activities were likely to cause a breach of public order during an election. The expulsion was held to be disproportionate, but the refusal of entry was an interference with Article 10; she had been detained upon arrival at the New Caledonia Airport. The interference was again disproportionate.

Two further cases were identified: the first was Omkarananda and Divine Light Zentrum v Switzerland (1981) 25 DR 105. The Applicant alien was expelled from Switzerland for public order reasons. His complaint was brought under Articles 9, 10 and 11. The Commission ruled the complaint inadmissible. As the alien had no right to stay in the country, deportation did not as such constitute an interference with the Convention rights unless it was done to suppress those rights and stifle his followers. He had not been subject to restrictions in Switzerland on his religious activities; there was no reason to suppose that the suppression of his faith was a main purpose of his expulsion in view of the public order concerns which legitimately existed.

The second was Adams and Benn v UK [1997] 88-ADR 137; (1997) 23 E.H.R.R. CD160; Adams (who was in NI) had been excluded from Great Britain under the Prevention of Terrorism Act 1989, by an order which prevented him from accepting an invitation from an MP to speak at the House of Commons. Article 10 was engaged but the availability of other means for Adams to make his views known and the sensitive and complex issues in Northern Ireland made the exclusion proportionate.

We note that in all these cases the claimant had actually been physically present in the territory of the state party, even in the case of the MEP who was refused entry at the airport in New Caledonia. Most concern the interaction between the right of a state to remove an alien and the exercise or interference with the rights which an alien may have under the Convention whilst in the territory of a member state.

The Court of Appeal then set out its discussion of the cases in paragraphs 52-56. It concluded that where entry was refused to an alien for reasons wholly independent of the exercise of Convention rights, there was no breach of the Convention simply because that exclusion would have the effect of preventing him exercising those rights in the country from which he had been excluded. But exceptionally, as illustrated by Article 8 cases, exclusion could be overridden by Convention rights. The Convention would be directly engaged where refusal of entry or expulsion was solely for the purpose of preventing the alien from exercising a right within the territory or as a sanction for having exercised such a right. So the refusal of entry solely in order to prevent an alien expressing his opinions within the territory would engage Article 10. The proportionality of that decision would fall to be assessed by reference to the considerations in Article 10(2).

The Court then turned to consider the issue of proportionality and the factors which weighed heavily with the court in upholding the Secretary of State's exclusion decision, in a finely balanced case.

Mr Pannick elaborated his submissions, contending that the concession by the Secretary of State had simply been that the Convention was capable of applying to Farrakhan although he was neither a citizen nor present in the territory of a member state. That was said to remain the Secretary of State's position, because of the stance he adopted in Article 8 cases. Once that stance was adopted, there was no reason in principle to confine the application of the Convention in such circumstances to Article 8. The fact that the concession was seemingly still not at issue was reinforced by the new statutory rights of appeal in section 82(2)(b), combined with sections 84(1)(b) and (c) and 90 of the 2002 Act, which enables appeals against the refusal of entry clearance to be brought on human rights grounds. The Secretary of State had written to the Appellant in June 2003 saying that he could appeal against a refusal of entry clearance on human rights grounds. The Appellant was in no different a position in principle from Farrakhan.

The argument seemed to develop from a contention about what actually had been conceded into a contention that the concession was inevitable then and now because of the Article 8 and ECtHR cases, and that the Court of Appeal's decision would inevitably have been the same, even if no concession had been made or recorded. This argument therefore foreshadowed the submissions on the applicability of the Convention, if Farrakhan had not decided what Mr Pannick contended it had.

Miss Carss-Frisk submitted that the effect of her concession meant that Farrakhan could not have decided whether in principle someone seeking entry clearance could rely upon any Article of the ECHR, whether Article 8, 9 or 10. The passages at paragraphs 52-56 summarised above, and upon which Mr Pannick relied in this case, therefore dealt only with "the engagement of rights". The ECtHR jurisprudence relied on by the Court of Appeal dealt only with people who were present in the territory of the member state. The very issue which was now being discussed was the same as that which was conceded, ie whether the Convention was capable of applying to someone who was not present in the territory of the state. This present case had not yet reached the stage of considering whether the application for or refusal of entry clearance "engaged" human rights. There was substantial jurisprudence yet to be analysed in relation to the availability of the ECHR to such individuals, which showed that the concession was not inevitable simply because of the decisions in Article 8 cases. The provisions of sections 82, 84 and 90 of the 2002 Act did not mean that the Secretary of State's position had been now undermined or eliminated by Parliament. Nor could the Secretary of State's letter of June 2003 create a right where none existed; and anyway it only acknowledged the possibility of such a ground of appeal rather than avowing its existence.

We accept Miss Carss-Frisk's submissions. The concession was clear: it was to the effect that Farrakhan could contend that the refusal of entry clearance "engaged" Article 10 and breached it having regard to Article 10(2), even though he was not present in the United Kingdom nor was a citizen of it. It was the significance of those provisos which was not at issue in Farrakhan, as a result of the concession, but which is very much at issue here. The Court of Appeal did not decide that issue. We recognise that the language used in paragraphs 35 to 38 by the Court of Appeal permits the argument put forward by Mr Pannick but we do not think that it is the correct reading.

First, it would involve treating the Court of Appeal as having contradicted itself in accepting the concession and saying that it would not decide the point, and then doing precisely the opposite. If it had been deciding what had been conceded, it would most surely have said so. Secondly, it would involve such a decision being undertaken in breach of elementary rules of fairness: deciding a point without warning or argument in the knowledge that the disadvantaged party had made a concession rather than argue the point. We would not readily suppose that it had done so. Third, it would involve the Court having decided a difficult and important issue on the basis of what it would have known was very incomplete argument; the way in which the issue has been argued before us is testimony to that. It made no such suggestion as to the adequacy of the argument.

The Court of Appeal was deciding what were the circumstances, if any, in which someone, who was not in principle excluded from asserting that his Convention rights were engaged because of what may conveniently be termed "territoriality", could say in an immigration context that his rights under the ECHR were engaged and breached. The Court of Appeal reached its decision on that without drawing any distinction between entry and removal cases. The Secretary of State's concession had made that distinction irrelevant. Yet it is that distinction which is now at the heart of the argument here. All the cases which the Court of Appeal considered were cases involving the physical presence in the territory of a member state of those who claimed that the immigration decision breached their human rights, including the exclusion of the MEP from New Caledonia, and the Article 8 spouse cases. (The ECtHR does not draw the distinction which United Kingdom law creates between presence and entry).

But the conclusion that Farrakhan did not decide the point in relation to "territoriality" because it proceeded on the basis of the SSHD's concession, does not mean that the conclusion had no effect on the Court's approach to the issue which was contested, i.e. were Farrakhan's rights engaged or, if engaged, breached?

It is possible to see how the removal of someone who is present in the territory may engage his ECHR rights; he has those rights by virtue of being in the territory. Although the motive which lies behind an alleged breach is not relevant in some instances, it may be when a qualified right is at issue. The presence in the country leads to the individual having the rights under Article 10; removal for exercising such rights would not be permitted by Article 10(2) unless there were a sound and proportionate basis within the qualifications in Article 10(2) for removing someone. Thus, as the Court of Appeal concluded, the exercise by the state of its powers to remove an alien who has no right to remain, may "engage" ECHR rights where the purpose of removal is to prevent their exercise. By "engagement" we mean that the human rights which he has, as someone present in the United Kingdom, are potentially infringed and that infringement may require justification if the sole reason for his proposed removal is to prevent his exercise of a right or as a sanction for having exercised it.

But it is very different when one comes to entry. That logic becomes much more difficult to apply. The mere fact that someone is a legal person, albeit outside the territory of a member state, obviously cannot mean that he enjoys the rights conferred or obligations enforceable against a state by the ECHR. The Court of Appeal does not suggest that the simple fact that he has made an application for entry clearance through attendance at or correspondence with United Kingdom diplomatic premises or officials confers by itself any rights under Article 10(1); nor that if it did, there was a right of entry to exercise them subject only to the application of the qualifications in the qualified Articles, and subject to no qualifications if the Article were itself unqualified, such as Article 3. It would have been remarkable if it had done so. The basis of the Court of Appeal's decision appears to be that it is the refusal of entry clearance, for the sole reason that the state wishes to prevent the exercise of the ECHR rights, which engages ECHR. It is not easy to see why the interference with what was not a right then creates the right; but that appears to be the reasoning. And it is different from the reasoning applicable to a removal case, yet the Court of Appeal draws no distinction between the two.

These difficulties are entirely attributable to the concession which, although cast as a concession in relation to the significance of the actual presence of the individual in the country, in fact resonates through to the very basis of the assertion that the ECHR could be engaged. It does not operate as a neat single isolated argument. It led to the Court of Appeal considering the "engagement" of the ECHR as if Farrakhan were already present or as if it were a removal case, with no distinction to be drawn between those situations and entry. Hence the impression that the Court was deciding something which was conceded. Hence the absence of consideration of the distinction, here crucial, between entry and removal cases. The two were treated as indistinguishable because of the concession; what if here a vital distinction was made irrelevant by the concession? The concession altered the whole basis upon which "engagement" was considered. The "territorial" issue and the basis for any right of entry itself are not truly separable. If there is a "territorial" issue, what is the basis for any ECHR right being involved, from the standpoint of the alien applicant, in an application for entry clearance or in the decision on it? If there is no "territorial issue", why even debate whether someone could assert any ECHR rights to advance his entry? There could be no distinction between being within and not being within the territory for these purposes. Yet that is the very issue to which the concession was addressed.

We consider that the concession then affects the whole reasoning of the Court of Appeal, because the concession does not relate to a wholly discrete point in reality. There is a very real difficulty in separating the notion of "territoriality" from the basis upon which someone's circumstances could engage the ECHR, and in an entry case it is even more difficult. It is that which has led to the difficulty in some of the reasoning. The effect of the concession was to remove the need to consider whether there was a distinction to be drawn between entry and removal cases in terms of whether, how and subject to what qualifications Article 10 could be considered.

Accordingly, the Adjudicator did not err in deciding that Farrakhan did not determine the appeal in favour of the Appellant. The provisions of the 2002 Act are irrelevant to whether Farrakhan decided the issue which arises in this case. We shall deal with them when considering the next issue.

Can the Appellant assert any ECHR rights?

The second issue is whether the Appellant, who is not within the territory of a member state, has any Convention rights which he can assert either through his application for entry clearance or in consequence of the exclusion decision of the Secretary of State, rights which would have then been breached if the exclusion decision were disproportionate. The Appellant acknowledged that the notion of the scope of the ECHR was essentially territorial and that it was only exceptionally that rights could be asserted outside the jurisdiction or territory of the member state. He sought to distinguish two issues: (1) was a decision of an Entry Clearance Officer capable of being an act within the United Kingdom's jurisdiction as to engage Convention rights? (2) If so, which Convention rights could lay the foundations for an ECHR based challenge to an exclusion decision?

The Appellant contended that the Adjudicator erred in holding that only Article 8 gave rise to a basis for an extra-territorial claim to enter. The Appellant's argument, as it developed orally, focussed more on the logic that if the Convention could apply in Article 8 cases, then there were clearly exceptions in the immigration field to the notion of territoriality, and the task was to ascertain the principle which underlay the Article 8 exceptions and to test its applicability to other Articles. The Article 8 cases, as the IAT had itself recognised, permitted someone not in the territory to assert that his Convention rights were breached by a refusal of entry clearance, where he wished to enter to enjoy an established family life with someone already settled in the United Kingdom. This exception, it was submitted, recognised that the rights of the family member settled here would be breached if entry clearance were refused to the spouse or child.

There were, it was submitted, analogies to be drawn between family relationships which were thus protected and the relationship between a religious leader and his adherents in the manifestation of religious beliefs, in the freedom to receive the leader's expression of beliefs and support and to impart to him their concerns and needs, and for those purposes to associate with him and the leader with them. Just as in the Article 8 cases, there would have been a breach of the Convention rights of those settled here if entry clearance had been refused, so here one could extend to other Articles that principled basis for the Article 8 exception by recognising that those with whom the Appellant wished to associate, or communicate or provide religious inspiration to, were settled here and would be entitled to assert that their Convention rights were breached by his exclusion.

The counter arguments for the Secretary of State stressed the recent and authoritative jurisprudence of the ECtHR itself, identifying the essentially territorial basis for the operation of the Convention in Bankovic v Belgium (2001) 11 BHRC 435. This had been considered in three important United Kingdom cases: B v Secretary of State for Foreign and Commonwealth Affairs [2004] EWCA Civ 1344, R (Quark Fishing Ltd) v Secretary of State for Foreign and Commonwealth Affairs [2004] 3 WLR 1, and Al Skeini v Secretary of State for Defence [2004] EWHC Admin 2911. These demonstrated the limited nature of the so-called exceptions to the notion of "territoriality": effective member state control over an area, and specific acts of consular or diplomatic officials and the like; but not all that they did fell within that concept. In R (European Roma Rights Centre) v Immigration Officer at Prague Airport [2004] UKHL 55, [2005] 2 WLR 1, Lord Bingham had expressed grave doubts at paragraph 21 as to whether functions performed by Entry Clearance Officers abroad could possibly be said to be the exercise of jurisdiction over non-United Kingdom nationals. A further type of exception, but in our view it may be related to the second, is the exercise by a state of power over its nationals abroad. There is also the type of exception, often described as not a true exception, seen in removal cases where the removal is in breach of the Convention because of the treatment which will be meted out in the country to which the individual will be returned. These decisions demonstrated that the idea that the Convention was engaged simply by the effect or impact of the acts of the state abroad, eg by bombing people, was wrong.

The Article 8 cases properly analysed all involved those who were settled in the state, and the exception was narrowly circumscribed. They refuted the notion that there was scope for any extension by analogy to other Articles. There was no true analogy anyway between family life, which needs cohabitation for it to be fully enjoyed, and the free communication and association which is part of religious practice but which can be carried on without such proximity and through other means of communication.

We can take the general principles very shortly. We accept the Secretary of State's submissions which we have summarised above in relation to the territorial approach and the exceptions to it. They are borne out by the cases cited and we do not wish to add to what Rix LJ said in paragraphs 244-280 in Al Skeini, which is authoritative and compelling.

The particular difficulty is in analysing the extent to which entry clearance comes within the scope of the "consular exception" at all. Some reliance was placed by the Appellant on the observation of Lord Steyn in R (Ullah) v Special Adjudicator [2004] UKHL 26, [2004] 2 AC 323, paragraph 36, to the effect that the basis of the reasoning of the ECtHR in Abdulaziz and Others v UK [1985] 7 EHRR 471, was an over-arching conclusion that in the field of immigration, decisions must respect the rights in Article 8. It was said that that showed that the decision was not exclusively dependant on the fact that the applicants to the ECtHR included the wives who were settled here. We do not think that that observation bears the weight put on it. It reflects what the Court itself said; the Court was not saying that non-nationals abroad could claim entry based on the ECHR, but rather it was scotching the idea that the field of immigration, which might have been thought an area entirely outside the scope of the ECHR, could never engage Convention rights. But it did not address the issue of whose rights could do so and whether they included non-nationals who were not in the territory.

The question of the scope of the "consular or diplomatic" exception was considered in both B and Al Skeini. In B, it was assumed that the boys in the Melbourne Consulate were sufficiently within the jurisdiction, although it was an assumption which the Court appeared content to make, pointing out not the mere presence of the boys within the building, but also the degree of protection given to the boys and reassurance as to their safety by consular staff.

In Al Skeini, at paragraph 269 on, Rix LJ refers to the exception to territoriality created by the lawful presence of the consular agents and rejects an argument that it was only their acts in relation to nationals which could engage the ECHR. However, it is clear that when in paragraph 272 he considers the consular exception he deals with it in the context relevant for that case, which concerned confinement and physical control over an area within the jurisdiction of another state. We derive no further assistance from those cases.

We note the comment of Lord Bingham in the Roma rights case upon which Miss Carss-Frisk relied, which clearly supports an argument that no Entry Clearance Officer decision as it affects a non-national can bring that individual within the jurisdiction so as to enable him to assert ECHR rights.

We do not find assistance in relation to the consular exception in any of the ECtHR Article 8 cases: Abdulaziz above, Sen v Netherlands (2003) 36 EHRR 81 or Advic v UK (25525/94). In none was the issue of territoriality considered. Bankovic came before Sen, but the Court was silent about the issue of territoriality. It is likely that this was because in each instance there were applicants who were settled in the country seeking the admission of family members who were not. True it is that the ECtHR does not draw any obvious distinction between the two categories of persons, but it is of limited value therefore in seeking any guidance as to any general approach to territoriality and the consular exception, whatever it may say about Article 8.

The Appellant attributed significance in this context to the statutory appeal provisions, which we reject. The appeal provisions in the 2002 Act provide in section 90(1) that a right of appeal is only available to someone who seeks to enter as a visitor if the application was made for the purposes of visiting a member of the applicant's family. Section 90(4) provides that subsection (1) does not prevent the bringing of an appeal on human rights grounds. It might be thought that that enabled an appeal to be brought on human rights grounds only by a visitor who had a family connection. Subsection (1) restricts who can appeal as a visitor, and subsection (4) limits the grounds upon which such an appellant can appeal. That would mean that this Appellant had no right of appeal at all. However, that was not the point taken by the Secretary of State, and we do not need to decide whether that was a concession and if so whether correctly made. The effect of the provision is therefore, for the purposes of this appeal, simply to restrict the grounds of appeal which a non-family visitor may deploy to those which relate to human rights.

On that basis, the ground of appeal in section 84(1)(c) is that the decision is incompatible with the Appellant's rights under the Convention. But if there are no Convention rights available, there are none which can be asserted. The enactment of section 90 may have involved an understandable uncertainty as to the ability of a non-national abroad to rely on the ECHR, and Parliament preserved that right insofar as it existed. It did not create a right which did not otherwise exist under the Convention as its language makes clear. The existence of the right cannot be advanced by the provision; it can merely be protected if it exists. At best, it could evidence an erroneous Parliamentary assumption, if we are right, as we later conclude, as to the extent to which an application for entry clearance (necessarily by a non-national) can engage the ECHR. If those rights had existed, then any interpretation of the Act which excluded those rights would have been incompatible with the ECHR and it would have had to be read down so as to make it compatible. But none of that advances the notion that the provisions themselves provide an answer here. Nor have we seen anything which suggests that the HRA 1998 was intended to create, and certainly the 2002 Act was not intended to do so, rights which were more extensive territorially than those created within the confines of the ECHR and Article 1. Such a suggestion would be contrary to section 84(1)(c) anyway, and to the authorities on the continuing effect of the unscheduled Article 1 ECHR.

The IAT considered the issue of the existence of the ECHR rights available in making entry clearance applications in H (Somalia) [2004] UKIAT 00027, a case decided after Bankovic but before the more recent domestic cases. It related to the 1999 Act. The issue was whether Somali nationals could rely on Article 8 to challenge the decision of the Entry Clearance Officer who had refused entry clearance within the Rules for them to join a relative settled in the United Kingdom. The IAT took the view that, subject to any particular considerations arising out of Article 8 cases decided in the United Kingdom and ECtHR, an application for entry clearance did not give rise to ECHR rights for the non-national. The acts of the Entry Clearance Officer were not sufficient to bring the applicant within the jurisdiction. We said:

"35. The starting point, in our view, is the judgment of the Court of Appeal in R (Ullah) v A Special Adjudicator [2002[ EWCA Civ 1856, [2003] INLR 74. This pointed out that Article 1 ECHR imposed the same limitation on section 6 of the 1998 Act that it did on the operation of the Convention itself. The question in that case, as in this, is as to the limit which the words "within the jurisdiction" place on the operation of the ECHR and section 6.

36. Second, we accept that there are circumstances in which decisions and actions of diplomats, consular officers and Entry Clearance Officers can be acts of the Parties "within the jurisdiction". This is borne out by Abbasi v Secretary of State for Foreign and Commonwealth Affairs [2002] EWCA Civ 1598 at paragraphs 74-76. It is acknowledged in Bankovic, but that case emphasised the restrictive territorial basis of the ECHR.

37. However, third, we do not accept that this means that the activities of diplomatic and consular agents always constitute the exercise of powers within the jurisdiction for the purposes of ECHR Article 1. Such an approach would extend to non-nationals with no right of entry, a series of rights upon which to base applications for entry clearance simply by virtue of the fact that an Entry Clearance Officer had to consider them and that a right of appeal lay against a refusal. It would create a right of entry based on Article 3, which would include persecution for a non-Geneva Convention reason; it could encompass Article 8 where there was no family in the United Kingdom, on the basis that family life could not be enjoyed in the country of origin because of its domestic laws on divorce or marriage or adoption.

38. This would be a remarkable extension of the scope of the ECHR, particularly as it seems that the Convention was unlikely initially to have been intended to affect the right of a State to control the entry and residence of non-nationals. It has only come to do so in stages and to an uncertain degree as Ullah shows. As Lord Phillips MR pointed out in Ullah, at paragraph 24, the Strasbourg Court has repeatedly emphasised that Contracting States have the right to control the entry, residence and expulsion of aliens, subject to their Convention obligations. It is the extent of those which is far from clear, as Ullah illustrates. But it would take clear authority to show that the mere fact of an application for entry clearance and a subsequent appeal required the Parties to secure all the Convention rights to those who applied and to permit their entry for that purpose. It would stand in marked contrast to the position under the Geneva Convention where would-be refugees who are still in their country of nationality cannot claim the benefit of the Geneva Convention and have no right in international law to receive asylum or to access a country for the purpose of making a claim; European Roma Rights Centre v Immigration Officer at Prague Airport and SSHD [2003] EWCA Civ 666, [2003] INLR 374.

39. Fourth, we do not accept the submission that the obligation on the Entry Clearance Officer under paragraph 2 of the Immigration Rules to carry out his duties, in relation to those seeking to enter the United Kingdom, in compliance with the Human Rights Act, together with the right of appeal against the acts of public authorities, including Entry Clearance Officers, on the ground that a decision in relation to a person's "entitlement to enter or remain in the United Kingdom" was in breach of his human rights, shows that the rights which they might have under that Convention or Act are as extensive as the simple submission that the decision of the Entry Clearance Officer brings the appellant within the jurisdiction would suggest.

40. These are provisions which provide a jurisdiction in relation to human rights without dealing with what rights, if any, are to be secured to those seeking entry as non-nationals and doing so outside the scope of any Rules or policy-based discretion. The duty and jurisdiction exists in relation to whatever rights they may have in the light of their absence from the territory of the United Kingdom and the nature of what they seek. For the reasons which we have given, those rights cannot sensibly be regarded as encompassing all the Convention rights which are available to those within the territory. The same applies in relation to section 6 of the Human Rights Act: it does not help in determining what those rights may be, in this type of case. It can be said that those provisions evidence a Parliamentary assumption that those seeking entry would have some rights which would engage the ECHR, but unless the improbable assumption was made that they enjoyed all the Convention rights, those provisions evidence only a lesser and more uncertain assumption as to those rights, an assumption which may or may not be right. It would be very surprising if, by the language chosen, Parliament had intended to confer on any who might make an application for entry clearance, a right to enter to avoid treatment which breached Article 3, where no such right exists under the Geneva Convention."

No submissions have been addressed to us which persuade us that that general approach is wrong. Indeed, we would regard it as reinforced by the observations of Lord Bingham in the Roma Rights case. The increasing emphasis in the domestic cases on the essentially territorial nature of the Convention would also support it. None of them directly address the scope of the "consular exception", although it could cover the acts of the diplomatic agents towards those over whom they had some physical control and towards whom they had accepted some responsibility as in B. It seems to us to be impossible to contend that the exercise of every consular function engages the ECHR for the person who has come into contact with a consular official.

There may be distinctions to be drawn in areas of consular function or activities, other than immigration, between nationals and non-nationals, because of the degree of effective power or jurisdiction which the state may claim over its nationals abroad. The marriage of nationals in a Consulate and the provision of identity documents or entry papers to nationals, might engage the ECHR; the detention of non-nationals in the Consulate or their deception for various state purposes, e.g. to procure their departure from a foreign country to the UK, might also engage the ECHR, even though the simple refusal of entry to them would not do so. It is unnecessary for us to do more than recognise the possibility of such a source for the entitlement to ECHR rights. But even if the "consular exception" were to extend that far, it could not extend so far as the ordinary work of the ECO considering applications to enter from non-nationals.

Although it would be wrong to treat the field of immigration as inevitably and always falling outside the ECHR, the extension of the ECHR to everyone who merely sought entry clearance would be to reject the territorial foundation of the Convention. It would require the application of the most extensive version of the discredited impact theory. Put at its most brutal, it would be absurd for the ECHR to treat the bombing of civilians abroad as outside the Convention, yet their applications for entry clearance, to avoid the breach of Article 3 which that bombing involved, as within it.

We do not regard Farrakhan as useful in answering the question of whether any ECHR rights can be invoked by those who seek to enter so as to exercise, with those already here, rights of association, communication and manifestation of religious beliefs. As we have concluded, it does not address the issue in question but instead assumes the answer. That means that it cannot be of persuasive authority either.

Were it not for the Article 8 cases in the ECtHR and in the Court of Appeal, we would regard it as unarguable but that neither the application for entry clearance nor the exclusion decision could engage the ECHR for the benefit of the Appellant. He is not "within the jurisdiction". It is those cases, however, which give pause for thought. Their reasoning does not really address the crucial issue of whether the application to or decision of the Entry Clearance Officer could engage any rights for an applicant under the ECHR. It is essentially either an inference which can be drawn from them, or an assumption in them, that the decisions of an Entry Clearance Officer, in respect of a non-national abroad, could engage the ECHR. It does not matter for these purposes that the Entry Clearance Officer is abroad and the exclusion decision was taken by the Secretary of State here; it is the location of the individual applicant which matters.

In R (Mahmood) v SSHD [2001] 1 WLR 840 at paragraph 65, the Master of the Rolls said that if the applicant applied for settlement as the spouse of a person settled in the United Kingdom, his application would be considered having regard to his Article 8 rights. In R (Ekinci) v SSHD [2003] EWCA Civ 765, Simon Brown LJ made a similar point, reflecting the position taken by the Secretary of State in relation to the removal of someone enjoying family life in the United Kingdom: his application for entry clearance and any subsequent appeal under sections 59 and 65 would give the Adjudicator jurisdiction to consider the appellant's human rights. Those are the predecessor provisions in the 1999 Act to sections 82 and 84 of the 2002 Act. Kugathas v SSHD [2003] EWCA Civ 31 [2003] INLR 170 was to the like effect.

In Sen v Netherlands [2003] 26 EHRR 7, the ECtHR referred to various criteria which established the extent of the state's obligation to admit to its territory, the relatives of settled immigrants. In that case, the three applicants consisted of the two Turkish parents now legally settled in the Netherlands, and their eldest child, nine years old, who had been born in Turkey but left behind by them aged three. The outcome is immaterial for these purposes.

In Ahmut v Netherlands [1996] 24 EHRR 62, the ECtHR, again without drawing a distinction between the rights of the sponsor, who was present in the Netherlands, and the son, who was in Morocco, looked at the family relationship as a whole rather than distinguishing between those within and those outside the parties' territory.

In Abdulaziz, Cabales and Balkandali v UK [1985] 7 EHRR 471, the Applicants were established in the jurisdiction so the issue did not really arise. The broader comment to the effect that immigration control could not lead to the authorative disapplication of ECHR was not addressing that issue but the broader contention that ECHR had no application to immigration decisions at all.

We considered how the territorial ambit of the Convention and the role of the Entry Clearance Officer in those decisions could be reconciled in H (Somalia). In H, we concluded that the position on Article 8 and entry clearance was this:

"42. It seems to us that the answer to the existence of Article 8 rights for those outside the United Kingdom is to be found in the way in which the jurisprudence of the ECtHR has developed over time in relation to various areas of human experience, here the entry of non-nationals to a country. It is not always possible to trace a clear line of reasoning from Article 1 through the various decisions which that Court has reached so as deduce the principles which apply. The decisions are not always consistent nor do they deal with some of the problems which might be thought to stand in the way of the result reached. Ullah illustrates the problems of some of the reasoning in Soering v United Kingdom [1989] 11 HRR 439, and then with the basis upon which Chahal v United Kingdom [1997] 23 EHRR 413 was said to be consistent with it. Similar problems arise in respect of the ECtHR approach to entry cases. But, rather than hunting for a clear line of reasoning or principle which deals with the effect of Article 1, a line which seems unlikely to exist, the better solution is the more pragmatic one of looking to see what has been decided by that Court and domestically in relation to this particular area.

43. The issue was discussed in Ullah in paragraphs 41-47 as part of the more general discussion of Article 8. In particular, the Court was of the belief which we regard as well-founded, that Article 8 has been invoked, but only successfully in an immigration case, including refusal of entry, where that "has impacted on the enjoyment of family life of those already established within the jurisdiction". The Court referred to its review of the cases in Mahmood. It noted that the basis of the ECtHR decision in Abdulaziz, Cabales and Balkandali v United Kingdom [1985] 7 EHRR 471 was that the applicants were established within the jurisdiction and complained that they were being deprived of the company of their husbands who were not within the jurisdiction; the right of the State to control entry acted as a free-standing restriction on Article 8 rather than being a legitimate aim within Article 8(2). Later ECtHR cases, such as Bensaid v United Kingdom [2001] 33 EHRR 10, [2001] INLR 325, treat immigration control as falling within that qualification. It appears to have been assumed or decided in both Kugathas and Ekinci, that the effective trigger for the existence of Article 8 rights, enforceable against the United Kingdom by non-nationals who are outside it, is the existence of family life with those who are established in the United Kingdom.

44. We have already referred to Sen v Netherlands and Ahmut v Netherlands, both of which are consistent with what the Court of Appeal said in Ullah about the need for the family relationship, of those relying on Article 8 as a basis for entry, to be with someone who was established in the United Kingdom in order for them to have Article 8 rights in respect of family life which are enforceable against the State with which they are seeking entry.

45. Accordingly, we consider, on the basis of ECtHR jurisprudence and Ullah, that the existence of family life with someone who is established in the United Kingdom provides the basis for the existence of Article 8 rights, enforceable against the United Kingdom and is the basis for the examination of whether that life is interfered with or shown a lack of respect. This may reflect a developing ECtHR jurisprudence from the position in Abdulaziz. Such an approach would reflect what the Court of Appeal seems consistently to regard as the position. (We have some reservations about the basis upon which Ms Hanrahan conceded the point because the short comment in Mahmood may have been overtaken by the greater consideration of the issue of jurisdiction in Ullah.) It does, however, represent an ad hoc extension of the Convention, but it is not as wide as that which would arise from full acceptance of the appellant's submissions. But it also makes some sense of the jurisdictional provisions in the 1998 Act, with the Parliamentary assumption seen as having some basis."

It is not necessary to examine for the purposes of this appeal whether that remains good law or whether in the light of Al Skeini, B, and the observations of Lord Bingham in the Roma rights case, it should be revisited. Neither party sought to suggest that it was wrong. We would only say that the difficulties which we had in finding a rational basis for the earlier decisions, and one which grappled with the basis upon which a non-national could rely upon an application for entry clearance as giving a right under the Convention, have not eased. We entertain very considerable doubts as to whether it is now correct to say that any ECHR rights can be invoked by those who are non-nationals abroad seeking to enter the country. The better view may well be that the rights to be asserted are those of the persons settled here who should assert them by Judicial Review, as victims of the immigration decision. It is their right to family life which is engaged and falls to be considered but it cannot be done through the mechanisms of a statutory appeal. We shall assume, however, for the purposes of this appeal, that what we said in H (Somalia) remains good law, and accordingly, we examine the Appellant's position on that basis. We reject the analogy which Mr Pannick sought to draw between the rights to family life within Article 8 and the rights which the Appellant seeks to invoke here, important though they are. The essence of family life, which makes it possible that the ECHR extends to some non-nationals outside of the territorial jurisdiction who seek respect for their family life with someone settled here, is the need for physical proximity between those persons. This would cover the normal relationships between husband and wife, parent and child and closely allied relationships. We did not conclude that Article 8 in this extended form covered all aspects of personal and private life, or necessarily all those relationships which could come within the notion of family life within the Convention. It covers the basic components of family life, of personal relationships which require a physical proximity in order for them to be enjoyed in any real sense. We emphasise that, in this extended form, we were examining the issue from the standpoint of the non-national out of country, rather than from the standpoint of the family member settled here. Our comments do not bear upon the position of the latter were they to assert rights as in Abdulaziz.

Those Article 8 rights bear but limited comparison with the Convention rights involved here in terms of the need for physical presence in the same place as others in order for them to be enjoyed. Viewed from the standpoint of the non-national seeking entry, whether as leader or follower, physical proximity may bring advantages in the manifestation of religious beliefs, and in communication and association but is not of its very essence. The right to family life is not a right of association. Indeed, the Roma rights case suggests that even if someone were persecuted for the manifestation of their beliefs, they would not have a right of entry.

From the standpoint of those settled here, these other rights may be greatly enhanced by the presence and words of a spiritual leader speaking directly to a gathering of his followers. Personal communication may be very important to the expression of religious beliefs; there are rights to associate which his presence may enhance. But there are other means of communication which have been developed over time from the letter to the recording and live telephonic communication which may provide a second best but still enable some of the functions of religious life with a spiritual leader to be carried out. Travel by the followers for the purpose of meeting the leader may well be possible, for it is not necessarily the case, and it is not here, that the followers wish to live with the leader or he with them in the United Kingdom. It is a visit which is desired. We do not regard these considerations as comparable in terms of the need for personal proximity to the closer family relationships without which the family unit and the very basis of an individual's personal and private life would perish. There is a real difference in degree which goes to the fundamental basis of the exercise of the rights at issue in either instance.

Just as the Soering case illustrates that the values associated with Article 3 permitted some form of extension to the operation of the Convention to protect those very basic rights, so the protection of the basic family life rights of someone who can only enjoy them with someone who is settled here, may warrant an extension to the ordinary operation of the Convention in respect of non-nationals abroad. We would not see the rights invoked in this case as comparable in their demands upon the member state for the grant of entry clearance, to those invoked in the closer family relationships.

We also accept that an essential feature of the Article 8 cases is the existence in the United Kingdom of someone whose rights would be breached if entry clearance were not granted to the applicant. We would accept that that enables some comparison to be drawn between the spouses, fiancés and parents in the Article 8 cases and the fellow members of the Unification Church in the United Kingdom. It may be that their rights under Articles 9, 10 and 11 would be breached by the exclusion of the Appellant, but that is not how the case has been evidenced or essentially argued. We take the view that that essential feature of the Article 8 cases is not the defining characteristic of a principled allowance of the availability of the Convention rights to those who would not normally have them. It is simply that that is an essential feature of that very particular and pragmatic exception which is designed to meet a very particular problem.

It would not be right to create enlarged areas of exception on the basis of the Article 8 cases; rather than being the source of a principled extension to the normal territorial reach of the ECHR, the principles of which can be ascertained and applied to other cases, those cases are an exception and should remain so. The jurisprudence of the ECtHR is pragmatic rather than always principled. If there is a principle to be established, the more obvious one is that the ECHR cannot be invoked by someone who is not in the normal territorial jurisdiction so as to obtain entry. It is the Article 8 cases which are exceptional, to the extent that they suggest otherwise, and they should not be more generally applied. The better view may even be that they are wrong in so far as they suggest that the application to the Entry Clearance Officer engages the ECHR for the benefit of the applicant.

Of course, if the true basis of the Article 8 cases is only that the refusal of entry clearance is a breach of the human rights of someone who is settled here, as in our view it ought to be, the proper way to enforce that right is through judicial review of the decision by the victim spouse in this country. That would focus the judicial decision on the substantive rights of the victim and not on the perhaps sterile debate here about whether someone is within the jurisdiction. That problem only arises because of the differences between the statutory appeal which focuses on the Appellant, and judicial review which would look at the rights of others affected by the decision.

The contention that it is the breach of the rights of those settled here which permits an applicant for entry clearance to contend that his Article 8 rights have been breached and that that principle should extend by analogy to Article 10 cases where refusal of entry clearance would breach the rights of those within the jurisdiction or who are settled here, contains the seeds of its own destruction. If that is the underlying principle, then its vindication lies in their taking action by Judicial Review in respect of the decision which engages or breaches their rights in this country. And if they cannot succeed, the principle does not apply. The ECHR is thus applicable in entry cases, but its territorial limits are respected.

For the same reason, if the basis of the claim to enter is also that the Appellant's rights are engaged because his exclusion breaches the rights of his followers here, the remedy is not a further extension or exception to the territorial limits of the Convention, but for those who say that his exclusion breaches their rights to bring Judicial Review proceedings. This reflects Lord Steyn's comment in Ullah that human rights are engaged in the field of immigration and does not confine its engagement to removal cases.

It may be that the distinction between someone who comes without entry clearance and claims that removal would breach his rights under Articles 9, 10 or 11 in this country, and someone who stays outside the country but seeks entry clearance and cannot rely on the ECHR, would appear to encourage the arrival without entry clearance of those whose cases may benefit from the application of the ECHR. But it is a real distinction nonetheless and it is one which has some value in immigration control.

Accordingly, we reject the claim that the Adjudicator erred in failing to hold that the Appellant had a right to enter or had rights which were capable of being infringed. The appeal will therefore be dismissed.

If ECHR rights were engaged, did the refusal of entry clearance breach them?

The third issue is whether the Secretary of State would have breached the Appellant's rights in excluding him, if he had been found to have rights under the ECHR. We were asked by the Appellant to deal with that issue in the event that we were against him on the prior issues and we are prepared to do so. Before doing so, we should set out what we assume to be the basis for a claim that he had rights which he could invoke.

The very difficulty of ascertaining the mechanism whereby the ECHR rights became engaged reinforces our views on the second issue, as does the difficulty of ascertaining how those rights should be approached. Is the Appellant to be treated as having a Convention right engaged merely by his desire and application to enter, casting the burden on the Secretary of State to justify exclusion? That would be very broad. Does he acquire such a right if the purposes of entry are to exercise what would be Convention rights were he here, again casting the burden on the Secretary of State to justify excluding him? Again that would be a very broad basis for entry. Is he to be treated as only acquiring Convention rights if exclusion is solely in order to prevent him exercising Convention rights in the United Kingdom? This would echo Farrakhan. Is the degree of interference, and hence of justification, to be measured by the effect on his manifestation of religious beliefs resulting from exclusion, even though there is no interference at all in the way in which he practices his religion in the USA, or communicates with the United Kingdom?

It would be illogical to say that it is the exclusion decision, taken in order to prevent the exercise of Convention rights, which engages Convention rights and that he had no rights until he was told that he could not enter. The Secretary of State must be assumed to have to consider the application on the basis that the right has been engaged already. We therefore assume that the Appellant had Convention rights because he wished to enter for the purposes of exercising here rights under Articles 9, 10 and 11. We think that it can only be the making of an application for entry clearance in order to exercise those rights which could engage the rights. The degree of interference with them is to be judged by the impact on the way in which the Appellant is affected in the exercise of those rights vis-à-vis his followers in the United Kingdom, ie by the difference which a physical presence makes to his rights. His followers' rights, if any, are not directly relevant on statutory appeal.

The Adjudicator set out the background to the decision of 8 May 2003, notified by letter of 15 May 2003 in which the Secretary of State says that he personally directs that the Appellant be excluded on the grounds that his presence here would not be conducive to the public good "for reasons of public order". There were no supporting reasons at that stage.

He referred to the subsequent letter of 28 November 2003 from the Secretary of State which sets out the reasons and to a Witness Statement from the Secretary of State which elaborated the earlier representations in the light of the later materials, the Adjudicator concluded in paragraph 52:

"I find that the Secretary of State, over a period of time, moved from the public order reason, as set out in the "minded letter" of 12 April 2001 (book 1, page 35) where he clearly stated that the basis of the presence in the country of the Reverend Moon was not conducive to the public good for reasons of public order, to public interest. I find that the appellant was fully aware of the substance of the reasons for refusing him entry and the public order ground was a label, not the substance of the decision. It was made clear to the appellant that the Secretary of State had broader concerns as set out in the letter of 12 December 2001 (book 1, page 63), for example."

The public order ground, away from which the Secretary of State had moved, was to the effect that those who had been harmed by or were opposed to the past activities of the Unification Church might create disorder at meetings which the Appellant attended. He had moved to a more general point about the problems which the revitalisation of the Church and a return to its former contentious recruiting and retention methods might create. ("Church" appears to be the normal appellation for the Movement's activities in the United Kingdom.)

The Adjudicator then examined the basis of the decision to exclude, setting out the evidence and representations which the Secretary of State had received and concluded in paragraph 62:

"I find that when the Secretary of State considers whether to exclude a person on grounds of public good the exercise is not one of deciding on the balance of probabilities whether or not someone will act contrary to the public good, but rather one of risk assessment. I find that the Secretary of State should take into account the experiences of people who have been directly involved with the Unification Church together with the views of their families. I find it was reasonable for the Secretary of State to prefer those concerns outlined by FAIR and CIC and to a very limited extent supported by Professor Barker when the Secretary of State reached his decision."

The Adjudicator then addressed the factors identified in Farrakhan as relevant to the width of the margin of discretion to be accorded to a decision of the Secretary of State taken personally in a case such as this. He accorded to the Secretary of State a "particularly wide margin" which the Secretary of State had not exceeded. He was not motivated by a desire to prevent the Appellant from expressing his views. He was entitled to approach matters on a precautionary basis, and to act on his evaluation of risk. It was not a decision taken lightly, and he was far better placed than the Court to reach a decision as to the likely consequences of admitting the Appellant to the country. He was accountable to Parliament for his decision.

The Adjudicator thought that great weight should be given to the very limited extent to which the Appellant's right to freedom of expression would be restricted. He said:

"The reality in this case is that the Reverend Moon is being denied the opportunity of coming to the United Kingdom, but not to express his views and his religion. There is no restriction placed on the Unification Church in the United Kingdom or of him communicating with anybody in the United Kingdom. Freedom of expression extends to receiving as well as imparting views. The Reverend Moon will not be able to meet his followers in the United Kingdom face to face. There is no prohibition on his followers in the United Kingdom to go to the United States of America and meet him there personally. However, with the modern technology of live video-linking he will be able to communicate effectively with his followers in the United Kingdom."

It was not the Appellant's intention to come to proselytise or to hold open meetings to which the public would be invited, so his aims could be met by live video-link.

We now turn to the material which underlay those conclusions. We start with the letter of 28 November 2003 which says that its purpose is "to set out in full the reasons for the … exclusion". It is short and important. It says:

"The Home Secretary decided to exclude Revd Moon primarily because of the methods used by the Unification Church to recruit new members and the adverse impact that recruitment has on members and their families. As founder and Head of the Unification Church, the Reverend Moon must take responsibility for these methods. The Family Action Information and Resource (FAIR) states that people are subjected to intensive persuasion and that after one week it becomes very difficult to leave the organisation. FAIR also reports that members are discouraged from contacting their families. The Cult Information Centre has received numerous complaints from individuals and family members about the methods used by the Unification Church, and INFORM (Inform Network Focus on Religious Movements) states that the Unification Church has caused considerable suffering to British Citizens in the past.

The Secretary of State considers that the Reverend Moon and the Unification Church are synonymous, and that the Reverend Moon directs the Unification Church as he would private assets. He appears to use Church members as unpaid, or very poorly paid, workers, and uses members' assets, donated to the Church, as a source of Church income. This appears to have happened to a considerable degree in The Unification Church's current projects in Brazil, for example, where numbers of Unification Church members, who are paid very little, have been involved in setting up large Church estates. The Secretary of State is concerned that a visit by the Reverend Moon to the UK could result in the recruitment of further British Citizens to the Unification Church, who would then be exploited in this manner.

The Secretary of State is aware that the current membership of the Unification Church in the United Kingdom is small, and that some of the methods of recruitment which gave rise to concern are no longer used. He is aware, for example, that the organisation in the United Kingdom no longer discourages members from contact with their families. However, he also noted that a visit by Revd Moon could re-vitalise the organisation in the United Kingdom and prompt a return to previous methods of recruitment and retention. The Secretary of State believes that the exclusion of the Reverend Moon is necessary in the public interest not only because of the possibility that his presence here could re-vitalise the Church, but because of his own character and conduct as head of the Unification Church."

It provoked a considerable response by the Appellant's solicitor who sought particulars of some of the allegations, of the underlying evidence and complained that the basis of the decision had changed from the original indication that it was concerned with public disorder. The Secretary of State, in a letter of 9 February 2004, accepted that it was not the Secretary of State's position that the presence of the Appellant would lead to public disorder.

The Witness Statement on behalf of the Secretary of State, from Mr Troake, made no direct reference, any more than did the earlier letter of 28 September 2003, to the ECHR. It said that the Secretary of State had drawn particularly on the representations of CIC and FAIR, which he then summarised. CIC had received numerous complains about the Unification Church from families and others and that the recruitment methods continued to have an adverse impact. FAIR was established to help families who were in distress as a result of "losing" their children to the Church, after recruitment by intensive mind-numbing persuasion, and discouragement from contacting families. FAIR had said that the visit of the Appellant would cause distress to its members, and increase the risk of the vulnerable being recruited.

Mr Troake then said that the Secretary of State had taken into account the Appellant's conviction in the USA in 1980 for tax evasion for which he had served eleven months of an eighteen-month sentence. Paragraph 16 said:

"Having taken account of all of these materials the Secretary of State formed the impression that the presence of the Reverend Moon in the United Kingdom would lead to a real risk that the Unification Church could be re-vitalised as a result and could involve the use of undesirable methods of recruitment and retention. The Secretary of State believed and believes that the was entitled to approach this risk on a precautionary basis."

The letter of 28 November 2003 was described as an "accurate summary" of the Secretary of State's reasons. Previously, it had been the reasons "in full".

The Appellant took issue with much of the material through a Witness Statement from Mr Read, the UK President of the umbrella body through which the Unification Movement in the United Kingdom conducts its activities, and from Dr B Wilson of All Souls College, Oxford, an expert of great experience in the sociology of religion and cults. The latter dealt with many of the concerns about the recruitment and retention methods of the Unification Church, the splitting of families, the way in which members were or were not exploited for the benefit of the Church or of the Appellant personally, and the quality of the evidence provided to the Secretary of State by those groups opposed to the presence here of the Appellant, notably the Cult Information Centre, or CIC, and the Family Action Information and Resource, or FAIR.

As the way in which the Secretary of State's reasons evolved or changed formed a significant part of the challenge to his decision, we set out the concerns which he expressed. In the letter of 15 June 2001 from the Secretary of State seeking representations on the Appellant's potential exclusion, of which the purpose was to let the Appellant know the issues upon which he had to focus as a result of the unfairness found in the previous decision-making process, the Secretary of State said:

"It is established practice that, in certain circumstances, the fact that an individual's presence in the United Kingdom would cause offence to the public may provide a basis for a decision to exclude. The starting point in such cases is whether the views expressed by an individual are sufficiently offensive to groups resident in the United Kingdom. If exclusion is to be justified there should also normally be an accompanying threat to public order or reason to suspect that a criminal offence may be committed. This would include the possibility of offences being committed under the Public Order Act 1986.

There are many people and organisations, some of whom have already made representations to the Secretary of State, who would be vehemently opposed to the Reverend Moon entering the United Kingdom. This has led the Secretary of State to believe that there could be considerable disruption, public protest and possibly violent affray should the Reverend Moon appear in public or congregate with his followers within the United Kingdom."

The stance of the Secretary of State was clearly understood as a public disorder concern by Professor E Barker of the LSE, a sociology professor with an especial expertise in the sociology of religion and cults, who was consulted by the Secretary of State. She dismissed the risk to public order in short form but was focussing on the reaction of those who might attend for enlightenment and inspiration rather than out of opposition, which was the Secretary of State's point. It was also clearly understood in that way by the Appellant whose solicitor addressed the matter and sought further detail in order better to respond.

It was expanded on by the Secretary of State in a letter of 19 October 2003. It was clear that the reaction feared was not that of supporters of the Appellant but of those hostile to him. This might be occasioned by inflammatory remarks by the Appellant or his proselytising.

On 12 December 2003, the Secretary of State wrote in reply to the Appellant's solicitor, dealing with various aspects of the public order concern, the absence of concern by the police that the Appellant would generate large-scale disorder, nor was it said that the Appellant was seen as a potential criminal. The letter also said:

"As previously stated the Secretary of State is reviewing whether the Reverend Moon's presence in the United Kingdom would be conducive to the public good because of the risk of public disorder. In particular we are concerned about families who believe that the Reverend Moon is responsible for the loss of their children. It is not our contention that any individual or group has made a specific threat to cause a public disorder or commit a criminal offence should your client visit the UK. It is accepted that the expression of an offensive view does not in itself constitute a criminal offence. The Home Office accepts that the right to freedom of expression includes rights to hold minority views and opinions without interference by public authority. However the exercise of the freedom of expression carries duties and responsibilities and may be subject to restrictions necessary in a democratic society in the interests of public safety, for the prevention of disorder and for the protection of the rights of others."

Finally, it was said that the Secretary of State would give due regard to the rights to freedom of expression and religion and the interests of the followers of the Appellant. This is the sole reference to the ECHR.

The Appellant realised that here was something of a development in the Secretary of State's thinking and sought further details. The Secretary of State in turn sought the views of Professor Barker, CIC and FAIR in relation to the evidence of any "brainwashing", the discouragement of family contact, the extent to which the Appellant had benefited if at all from the Church members and whether the Church made it difficult for members to leave.

Professor Barker's views are summarised by the Adjudicator as follows, and we include here her earlier comments:

"Professor Barker in her letter dated 20 March 2002 (book 1, pages 72-74) replied to the respondent's letter that:-

a) almost all scholars throughout the world would consider that there is no evidence to suggest that members of the Unification Church have been brainwashed. The Church puts pressure on people to join but no more so than any Protestant Evangelical churches do. Individuals who attended workshops in the late 1970s, when accusations of brainwashing were at their height, were capable of saying that they did not want to become members of the Church and those who did join showed no signs of being particularly suggestible or weak. Studies have shown that there is a high turnover among those who have joined the Unification Church, indicating that if the movement were employing brainwashing techniques, they were not very efficient.

b) there was a period when the Church encouraged members not to contact their families. However, in Britain there has been for the past twenty years a general policy that members should contact their parents. Most members that Professor Barker knows have contact with their families and this has become even more the case since the second generation came along. [The respondent has now accepted that there is contact between followers and their families (book 1, page 88).]

c) the Reverend Moon has personally benefited financially from members of the Unification Church. He appears, she says, to live in considerable luxury and to give the members of his family and others costly gifts and large sums of money.

d) there has always been a high turnover within the Unification Church and members not only can but do leave if they choose to. It has become considerably easier to leave over the last ten to fifteen years. Members no longer live in communities, but with their own families. There are few large centres left. Many members are very much on the borderline and slip between being a member and being a non-member almost without realising that they have done so.

Professor Barker was asked to comment by the respondent as to monies which have been given by individuals to the Unification Church. In a letter of 15 July 2002 (page 82), she responded that all religions benefit financially from their members and she has not carried out a study of dates, names and amounts. In the 1970s and 80s the real source of income would have been the members' cheap labour. However only a few now work full-time for the movement and they earn wages which although not high are sufficient to keep them alive in their own homes.

Professor Barker in her letter of 27 July 2001 (book 1, p.46) concluded that:

a) it is hard to believe that a visit by Reverend Moon could do much more than "lighten the hearts (and no doubt the pockets)" of those loyal followers. She notes in the last paragraphs of her letter that nothing in what she has said means that she would want Reverend Moon to be granted anything like a long-term stay,

b) she would not consider a short visit by Reverend Moon to be a threat to public order based on what knowledge she has acquired of the Unification Church over the years. Those who are not followers tend to find the Reverend Moon's public speeches incredibly dull and boring.

c) Reverend Moon and his movement have caused considerable suffering to several British citizens over the past 30 years or so.

d) Reverend Moon's financial dealings have not always been entirely transparent and he has spent some time in a US jail for tax evasion in the 1980s.

e) Reverend Moon's political involvement was questioned by the Fraser Committee in 1978 when "the conclusion was rather like that of a Scottish "not proven", ie we are damn sure you are guilty but can't make it stick".

f) Reverend Moon's moral behaviour does not seem to coincide with his teachings which tend to have a "do as I say not what I do" air about them.

g) Reverend Moon's followers have worked for minimal or no wages, sometimes being neglected in times of sickness, with no pension or insurance for their old age.

h) These are not reasons to restrict entry to a religious leader to visit his followers. At most they might be used to provide the basis of arguments that the Reverend Moon's presence is not conducive to the public good but "not I think for reasons of public order.""

CIC responded with reference to material from a libel case involving the Daily Mail in 1981 which had successfully justified its allegations in respect of brainwashing and family break-up. The Appellant clearly benefited from the wealth of the Church, members found it difficult to leave and there had been complaints in recent years from those who had loved ones in the Church. The letter is bereft of detail. FAIR provided a more detailed description of recruitment techniques which it described as having many features of brainwashing. It asserted family break-up as a result but there were no up-to-date examples referred to. The wealth of the Church, derived from its members and sent to the Appellant, was asserted but there was no material to back up the assertion in the letter. It was still difficult to leave. Complaints had reduced since the Church had stopped recruiting on the streets, but its methods had become more insidious.

In April 2002, the Secretary of State replied to the concerns expressed by the Appellant that the case had changed, saying that there had been no new decision and providing information about what the other persons consulted had said. The focus was clearly switching to the activities of the Church. None of those consulted who had been and continued to be opposed to the presence of the Appellant had suggested that their reaction would be in any way disorderly. On 24 July 2002, the Secretary of State wrote about further allegations concerning the exploitation of members as cheap labour, generating wealth for the Church and the Appellant.

A number of these allegations are dealt with in the statement of Mr Read and Dr Wilson.

The complaints made about the Adjudicator's determination by the Appellant can be summarised as follows. First, he had failed to recognise the significance of the failure of the Secretary of State to consider the effect of the ECHR on the rights of entry which the Appellant had. That was demonstrated by the correspondence. Second, the correspondence showed that the Secretary of State had in reality abandoned the public order ground on which he had originally relied for the exclusion of the Appellant and the Adjudicator ought to have so found. What this meant for the Adjudicator's decision was that he ought to have subjected the decision of the Secretary of State to greater scrutiny and ought to have been less willing to give any significant margin of discretion to him.

Third, the Secretary of State was given too large a margin of discretion because that would only be justified in cases involving public disorder as in Farrakhan; that was a Judicial Review case whereas here the statutory appeal provisions meant that that wide margin of discretion did not apply. In effect, the Adjudicator had also applied the Wednesbury test to the Secretary of State's decision but that was no longer appropriate following Huang and Others v SSHD [2005] EWCA Civ 105. Fourth, and this was closely related, it was for the Adjudicator to carry out therefore an independent assessment of the evidence and this he had not done.

Fifth, when analysed there was no factual basis for the Secretary of State's conclusions and the interference with the Appellant's rights was wholly disproportionate to any risk which he created in relation to the activities of the Church.

The Secretary of State responded that, following Farrakhan, he was entitled to a particularly wide margin of discretion, which he had exercised having regard to the representations made to him, taking account of the Appellant's conviction for tax evasion, assessing the risk which might be posed for a revitalisation of the Church on a precautionary basis, and noting the very limited interference with the rights to freedom of religion, of expression and association which exclusion created for the Appellant.

The Secretary of State had considered the case on the balance between the various relevant factors and having said that he would consider the Appellant's ECHR rights and the interests of his followers in one letter, he did not need to repeat it in a later one. Whatever may have been the evolution of the Secretary of State's reasoning, there was no doubt about what the reasons were and that the Appellant knew of the substance and was able to address those reasons. Farrakhan could not be distinguished by reference to the public order point or to the appeal system. The Adjudicator had all the evidence in mind and carried out the appropriate proportionality assessment. The overall assessment could not be challenged other than on a rationality basis and there would have been no justification for the Adjudicator interfering.

Miss Carss-Frisk submitted that the role of the IAT in considering the appeal was simply that of deciding whether or not the Adjudicator had erred in law according to Wednesbury and ordinary public law principles. Mr Pannick submitted that, following Huang, the identification of an error of law was different. The Adjudicator had to say whether or not the decision of the Secretary of State breached the human rights of the Appellant because it was disproportionate. If the IAT reached the view that it was disproportionate, that meant that it had concluded that there was an error of law in the Adjudicator's decision which had not so found. Any other approach would mean that a decision which was disproportionate had been found not to be unlawful when it was in breach of the ECHR. That would conflict also with the obligation of the IAT under section 6 of the HRA 1998. The converse applied too: if the Adjudicator decided that a decision of the Secretary of State was disproportionate when the IAT thought that it was not, it would be erroneous in law for such a decision to stand. The effect of Huang was to make decisions as to proportionality ones for the Adjudicator and thus for the IAT. Proportionality had now become recognised as a legal test like rationality.

We start by considering the role of the IAT in the light of Huang. The jurisdiction is limited to that of error of law. But the question is whether the decision in Huang means that a different view about proportionality is an error of law. This is the second case in which distinguished advocates have argued that that is so. There is force in the argument that, following Razgar [2004] 2 AC 368, if the decision on proportionality is to the effect that the Secretary of State's decision must be reversed because to uphold it would be a breach of section 6 HRA, as inevitably it must have been concluded to be in such circumstances, the same applies if the decision is seen as disproportionate by the IAT.

We do not think that Huang should be read as saying that the fact that the Adjudicator may conclude that the Secretary of State's decision is disproportionate and hence unlawful, means that such a conclusion inevitably gives rise to an issue of law. The conclusion, pre-Razgar, that a decision of the Secretary of State was disproportionate would also have involved the same conclusion that it was unlawful; and if the Appellant's argument here were correct such a decision would necessarily have given rise to an appeal on a point of law. Yet it did not do so. We see nothing in Huang which suggests that the approach to error of law set out in A (C) v SSHD [2004] EWCA Civ 1165, required re-examination.

We do not accept the argument either that section 6 of the HRA requires intervention by way of the error of law jurisdiction on appeal wherever the IAT would have reached a different view as a matter of fact and degree as to whether exclusion or removal would have breached the ECHR. It does not follow that an Adjudicator's conclusion that a decision is proportionate and therefore lawful is itself a decision on a point of law. It is a decision on the facts and an assessment of degree. If it itself is to be held unlawful, it has to be shown that the judgment involves an error of law, judged by modified Wednesbury standards. If it does not itself involve an error of law, it follows that there has been no breach of the HRA which requires the intervention of the Tribunal to provide a remedy or to avoid a breach of its own duty. The fact that a reasonable body could take a different view of the facts or of the assessment of degree would not convert the decision into an error of law or a breach of the HRA.

However, that does not set out the approach which the Adjudicator should have adopted, with the benefit of hindsight, in the light of Huang. Huang says:

"The true position in our judgment is that the HRA and s.65(1) require the adjudicator to allow an appeal against removal or deportation brought on Article 8 grounds if, but only if, he concludes that the case is so exceptional on its particular facts that the imperative of proportionality demands an outcome in the appellant's favour notwithstanding that he cannot succeed under the Rules.

In such as case the adjudicator is not ignoring or overriding the Rules. On the contrary it is a signal feature of his task that he is bound to respect the balance between public interest and private right struck by the Rules with Parliament's approval. That is why he is only entitled on Article 8 grounds to favour an appellant outside the Rules where the case is truly exceptional; This, not Wednesbury or any revision of Wednesbury, represents the real restriction which the law imposes on the scope of judgment allowed to the adjudicator. It is not a question of his deferring to the Secretary of State's judgment of proportionality in the individual case. The adjudicator's decision of the question whether the case is truly exceptional is entirely his own. He does defer to the Rules; for this approach recognises that the balance struck by the Rules will generally dispose of proportionality issues arising under Article 8; but they are not exhaustive of all cases. There will be a residue of truly exceptional instances. In our respectful view such an approach is also reflected in Lord Bingham's words in Razgar??, which we have already cited:

"Decisions taken pursuant to the lawful operation of immigration control will be proportionate in all save a small minority of exceptional cases, identifiable only on a case by case basis.""

In MB (Croatia) (Huang-proportionality-Bulletins) [2005] UKIAT 00092, the IAT examined the implications of Huang for the ordinary case. We concluded that the Immigration Rules were the starting point for the assessment of proportionality. If an individual had no case within the Rules or the extra-statutory policies and concessions, it would have to be a truly exceptional case on its facts for an Adjudicator properly to conclude that an immigration decision was disproportionate and unlawful. We said:

"32. Where a Rule or extra-statutory provision covers the sort of circumstance upon which an individual relies eg entry for marriage, study, medical treatment or delayed decision-making, but the individual falls outside the specific requirements or limits of the otherwise applicable Rules or policy, that is a very clear indication that removal is proportionate. It is not for the judicial decision-maker, except in the clear and truly exceptional case to set aside the limitations set by the executive, accountable to Parliament, and, in the case of the Immigration Rules, approved by Parliament.

33. Where Rules or extra-statutory provisions do not make provision at all for circumstances which an individual may rely on for the purposes of overcoming the qualification to an ECHR right which is provided by the legitimate interests of immigration control, his case cannot rationally be considered more favourably than one whose circumstances are covered in principle by some provision of the Rules or of an extra-statutory policy but whose circumstances do not meet the detailed requirements of the Rules or policy.

34. The starting point for the consideration of proportionality is the Rules and then the effect of extra-statutory policies. It will be necessary in each case where an exception is made in respect of an individual who has no basis to enter or remain in the United Kingdom to state clearly why those approved and qualified provisions in the Rules or policies should not be regarded as the conclusive negative answer to that claim."

In this case, the only applicable Immigration Rule is paragraph 320(6), which provides that the personal decision of the Secretary of State to exclude the Appellant on the grounds of the public good precludes the grant of entry clearance. This is not an instance in which the Rules have provided for qualifications to a particular provision governing entry which the applicant cannot satisfy. Nor is this an instance where the Rules have simply made no provision for the situation. The Rules simply preclude entry clearance. We take the view that that gives rise to no difference of principle. That Rule provides for a bar to entry save to the extent, on the hypothesis upon which we are proceeding, that its application gives rise to a breach of Articles 9, 10 and 11.

It is no different, however, in the light of Huang and Razgar, from those instances where the Rules make no provision for entry or remaining or those cases in which the Rules make some provision but impose restrictions which an applicant cannot satisfy. It would be illogical for the consideration of the Convention rights and the assessment of proportionality by an Adjudicator to be wholly at large, notwithstanding the exclusion decision under appeal. It is the absence from the Rules of provision helpful to the applicant, or the presence of qualifications which cannot be met, which must be taken as the proportionate and considered response of the executive, approved by Parliament, together with extra-statutory policies, to the varied needs and circumstances which arise in the immigration context. Hence the fact that it will only be in the exceptional case that a decision which conforms to those Rules and policies will be disproportionate and a breach of any applicable human rights.

The same applies to a Rule which prohibits entry clearance in circumstances where the Secretary of State has reached a personal decision that exclusion is necessary in the public interest, for which he is answerable to Parliament. It will only be in the exceptional case that that conclusion will be disproportionate. It is for the Adjudicator to reach that assessment and that can only be overturned as erroneous in law if it falls outside the admittedly narrow range of circumstances in which he could hold the Secretary of State's decision to be disproportionate.

We would add that the Adjudicator is not exercising a review jurisdiction and the considerations in Samaroo v SSHD [2002] INLR 55, referred to in paragraph 61 of Huang, do not arise. As he is exercising a statutory appellate jurisdiction, he is also entitled and obliged, in assessing whether he considers that a decision is disproportionate, to consider the evidence which is properly placed before him even though it may not have been placed before the Secretary of State.

Does this leave any room for the factors relied on by the Secretary of State, drawn from Farrakhan, as showing that deference is required to his personal decision? We take the view that there is no room for further deference or, in more appropriate language, for extra weight to be given to the particular role and responsibilities which the Secretary of State carries out. That factor is already allowed for in the approach of Huang, applied in this case to the Rule in question. It would be a double helping of "deference" to include it again in seeing whether the decision was disproportionate. That is not to say that those factors are not allowed for as part of the reasoning which requires a case such as this to be exceptional. It would have to be exceptional because it is a personal exclusion decision by the Secretary of State after consideration of representations and for which he is answerable to Parliament. It involves issues of the public interest and the nature and degree of the risk to it.

Although the Adjudicator expressed himself in the language of Farrakhan, and he cannot be criticised for that, we have concluded that that approach has been overtaken by Huang, and Razgar. We do not consider that that leads by itself to a material error of law, ie one which would have affected the outcome of the case. This is because the practical difference between the application of the reasonableness approach and the exceptional case approach, is very small and likely to be of no importance in most cases. The obligation on Adjudicators to reach their own conclusions on proportionality, but within the strict confines of Huang and recognising the significance of the judgments inherent in the Rules and the extra-statutory policies, does not appear to be likely to change the permissible range of decisions in very many cases.

It is important in looking at whether an error has been made by the Adjudicator, and at whether a decision is exceptional, to recognise that the notion of deference or respect goes more strongly to the concept of what is in the public interest, the balancing of competing private and public interests and to the evaluation of risk. It is much less easy to see that any particular respect is required for an analysis of fact where the Adjudicator has the same material and can see if there has been an error. Putting it another way, it would be somewhat easier to find that the Secretary of State had erred and made a disproportionate decision where his error was in the fact-finding area than it would be in the evaluative areas.

We accept that the Secretary of State has not carried out a proper balancing exercise himself in relation to the various matters which the ECHR requires. The brief reference, in his letter of 12 December 2001, to giving due regard to the rights to freedom of religion and expression, says nothing about how that would be done. None of the later material refers back to that or is any more explicit about how it was to be done. Indeed, the letter of 28 November 2003, nearly two years later, which says that the full reasons have been given in it, and the Witness Statement of Mr Troake, are completely silent on the point. Certainly no basis for any conclusion in relation to human rights is given, and neither the reasons letter nor the Witness Statement assert that they were taken into account. But the question for the Adjudicator was not whether the Secretary of State's approach had itself been lawful; it was whether the decision breached human rights, on the hypothesis that they were engaged. It would however diminish any weight given to the SSHD's assessment of matters.

We also accept that the Secretary of State changed the focus of his concerns away from public order to a broader concept of the public interest. He was entitled to do so, and the Appellant had the change signalled to him clearly enough and was able to deal with it. By itself that would not give rise to an error of law, though we accept the point that, as a matter of the merits consideration which the Adjudicator was required to give, it would naturally leave the impression that the Secretary of State had switched to a lesser point as the primary point could not be made out.

This submission cannot be separated wholly, however, from the contention that the Adjudicator failed to make an independent assessment of the merits of the case. For the purposes of the assessment of proportionality, he has to make an independent assessment of the facts and their evaluation as part of the risk assessment, the former within a wider framework than the latter, following Huang. It is accepted that the assessment of risk is a necessary part of the equation: it is not simply a question of whether the applicant's activities will probably generate disorder or will probably be harmful to the public interest in other ways. It is accepted that the precautionary principle is relevant, subject to the facts of any particular case.

There are a number of areas in which the Adjudicator erred in our view. First, he and the Secretary of State did not grapple with the evidence provided by Professor Barker. She is of undoubted expertise and that is why she was consulted. Her responses to the Secretary of State show that she was not parti pris. The essential feature of them was that there had indeed been the sort of conduct in the past in the recruitment and retention of members of which CIC and FAIR complained. But that conduct did not now occur and had not done so for years. What was said by CIC and FAIR about the recruitment and retention methods of the Church, which clearly lay at the heart of the Secretary of State's concerns, and which would plainly have justified exclusion if there were a risk of their continued use or revitalisation were the Appellant to return to the United Kingdom, was based on experiences which were twenty years old and which were not supported by any more recent material, at least so far as was shown to the Secretary of State. The evidence of Professor Barker was much more recent. Was her material rejected as a matter of the factual input into the assessment of risk, and if so why? It is not as simple as saying that the Secretary of State was entitled to prefer one to the other; he had to recognise as the Adjudicator was also required to do, that the two sources were not necessarily or even obviously talking about the same era; that aspect had to be brought into the factual equation. The CIC and FAIR material was either clearly very old or not clearly updated so as to contradict what Professor Barker had said.

Nor does that material explain why the visit of the Appellant could cause those activities to be resumed; and neither does the Secretary of State. Merely revitalising the Church could not sensibly be said to be objectionable and that itself was not the point anyway. The concern over revitalisation was what would then ensue by way of recruitment and retention methods and financial exploitation. But that is very dependant on the way in which the Church now operates both in the United Kingdom and in the USA and has done for some years. The clearly up-to-date material before the Secretary of State and the Adjudicator was really all one way; it was wholly unclear whether FAIR had anything up-to-date to say and CIC did not appear to.

Second, as this is not Judicial Review and as the Adjudicator had to reach his own assessment upon the material put before him, whether or not it had been put before the Secretary of State, it is surprising that the Adjudicator made so little of the evidence of Mr Read and Dr Wilson. Both of those statements went to concerns raised by the Secretary of State, yet there is no evaluation of their significance and weight. They are almost ignored. This is particularly important because of the critical evaluation of the reliability and objectivity of the views of CIC and FAIR upon which the Secretary of State placed so much weight. We should point out that this material, although post-dating the Secretary of State's decision, did not fall foul of section 82(5) of the 2002 Act, because it dealt with "circumstances appertaining" at that time.

Third, the significance of the variability of the views of the Secretary of State for the weight which can be attached to them is ignored. We do not say that as a matter of law, a more sceptical approach was called for, but it was something which needed to be assessed in the independent examination of the material. The change from disorder to public interest in another form does raise a question over how much weight the Secretary of State himself attached to that latter aspect. But this variability is particularly noticeable in relation to the 1980 conviction. The Secretary of State said that the 28 November 2003 letter contained the full reasons, not a summary from which any matters of significance had been omitted. The reference to the "character and conduct" of the Appellant is not clearly a reference to the conviction in the light of the previous correspondence which made no reference to it. It is difficult to avoid the conclusion that the Secretary of State was struggling somewhat with the evidential basis for the exclusion of the Appellant, when he introduced that matter in the Witness Statement of Mr Troake. It had been rejected by an Adjudicator in 1991 as an issue of importance for very cogent reasons, albeit that it had then been the sole basis for exclusion, whereas here it was just another factor; that Adjudicator had said that it attracted little weight.

Fourth, there was an issue about the Appellant's personal wealth over which Professor Barker, the Appellant's solicitor and Mr Read differed. In particular, there was an issue over the extent to which there was any exploitation of the members of the Church as cheap labour, upon which Professor Barker was not really at odds with the Church's arguments. It is surprising that those two separated but related issues did not call for specific consideration by the Adjudicator. It might have been that he accepted what the Secretary of State said as a legitimate appraisal but this was in part at least a factual issue and even applying deference as the Adjudicator was doing, no especial deference was called for in the assessment of the facts. But the point could not simply be disposed of as a matter upon which the Secretary of State's view was reasonable without further consideration of the material before the Secretary of State and the Adjudicator.

We have to say that the approach of the Adjudicator read as a whole was far too deferential to the Secretary of State's appraisal, even if the Farrakhan tests represented the correct approach to adopt. We note in particular the language of paragraphs 62 to 66 of the determination. If that degree of deference was called for, it had to be earned by the care with which the Secretary of State had addressed the relevant issues, and had come to a reasoned and balanced decision. It is difficult to characterise the Secretary of State's decision in that way. It then had to withstand the effect of the new material before the Adjudicator. Deference took the place of a proper analysis of the case put forward, and in particular on factual matters where the justification for any deference is much diminished, as we have said.

We regard all those errors as errors of law. They involve the ignoring of material considerations, or a failure adequately to reason the decision, grappling with the major points at issue. The approach was also erroneous in the degree of deference allowed.

We would therefore regard the proportionality assessment as flawed and would make the assessment ourselves. True it is that the interference with the rights in question is limited in the way described by the Adjudicator in paragraph 68, and there was no intention to engage in public meetings or proselytising. His religious activities in the USA and his communications with his followers in the United Kingdom are entirely unaffected in that current form. There is no right to manifest religious beliefs in any particular way.

But there is interference and that has to be justified. It is modest interference but real, in that we accept that for a spiritual leader, physical proximity to followers, his presence among them can be a necessary part of the manifestation of belief, and more so of the freedom of expression and association.

We do not consider that it has to be shown that the motive for the exclusion is the prevention of the exercise of the ECHR rights; the question is whether the interference which exclusion would produce is justified by the interests which are to be found in the qualifications to the Articles relied on. In one sense, it is the exercise of the rights which gives rise to the concerns and so the basis of the exclusion is to prevent their exercise. But that is not the right way to look at an exclusion case. The public interest lies in the protection of those members of the public who are not members of the Church and to discourage the return to former ways which might affect those who are or were members. The issue is whether that public interest has been shown to be at risk through the activities of the Appellant were he to enter the country and then whether it is a risk that warrants the interference with the assumed ECHR rights which exclusion entails.

The case for exclusion on the basis of the risk that the Church would be revitalised and would therefore return to its undesirable methods of recruitment and retention is very thin indeed. We cannot see how the material from Professor Barker and now Dr Wilson could not be regarded as having a far greater significance than that of CIC and FAIR. The former are concerned, objective and up-to-date. The latter are properly concerned about what has happened in the past, but do not provide any material which suggests that it is now happening or has happened for many years anywhere. We recognise that the Secretary of State is concerned about risk, but his view as to risk is based upon representations which do no more than point to the past and seemingly ignore the position as it has been for many years. The financial exploitation of the members, in the absence of coercive recruitment and retention methods, is a question for the free will of the members, as is their desire to belong to a Church in which the leader seems so well off, even if just to free him from the more prosaic cares of the world as Mr Pannick put it, whilst they may labour to keep him thus. That aspect is therefore closely related to the assessment of the risk emerging that those former recruitment and retention methods would be used again. The conviction was a makeweight point.

Of course, the Secretary of State is not obliged to accept expert material and can prefer the experiences of those with direct contact, who may therefore be regarded as subjective and hostile. The Adjudicator can do likewise. The Secretary of State is entitled to take a precautionary approach. The problem is that the views upon which he relied do not contradict the views of Professor Barker so much as deal with a different point in time and fail to grapple with the position as it is and has been for many years, as set out by her. If CIC and FAIR had provided current evidence of abusive recruitment and retention methods, the Secretary of State would have been entitled, the Adjudicator also, to reject any contrary expert view.

This is a case, however, where the decision was based on material which did not warrant the conclusion reached, and especially so in the light of the later material before the Adjudicator, notably that of Dr Wilson. This is not a disagreement with an evaluation as to what constitutes the public interest or as to a balance struck between competing public and private interests and rights, but a judgment that the factual material simply does not justify the Secretary of State's conclusion as to the factual basis for the existence of a risk. Had the risk been shown to be soundly based, we would not have interfered with the decision. This is therefore one of those very exceptional cases in which we conclude that the decision of the Secretary of State was disproportionate. It may be better to say that it was not shown to have any sound basis. The appeal would have been allowed if we had concluded that the Appellant could rely upon the Convention.

However, the appeal is dismissed for the reasons which we have given earlier. It is reported for what we say about the application of the ECHR in entry clearance cases, and the approach to proportionality.

MR JUSTICE OUSELEY

PRESIDENT

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	United Kingdom Asylum and Immigration Tribunal
You are here: BAILII >> Databases >> United Kingdom Asylum and Immigration Tribunal >> Sun Myung Moon (Human rights, entry clearance, proportionality) USA [2005] UKIAT 00112 (30 June 2005) URL: http://www.bailii.org/uk/cases/UKIAT/2005/00112.html Cite as: [2005] UKIAT 00112, [2005] Imm AR 624, [2006] INLR 153, [2005] UKAIT 00112, [2005] UKIAT 112