Dr Zakir Naik and National Secretary of the Department of Home Affairs and Entry clearance Officer, Mumbai India [2010] EWHC 2825 (Admin) - read the resolution
As we reported last week, the Supreme Court has agreed to exclude Dr. Zakir Naik, a prominent Muslim television presenter from India, UK on the grounds that his presence will not benefit the public.
Although the Supreme Court found that the original decision to expel Dr. Naik was unfairly procedural and that Article 10 ECHR (right to freedom of speech) was in the best interests of his supporters, his appeal was rejected. The case focuses on enlightenment and the attainment of a limited range of rights and freedoms guaranteed under the Convention, as well as the broader perception of the Home Office to release radicals that it deems to reflect 'unacceptable behavior'.
Dr. Naik's judgment review was based on four factors; 1. Legal violations; 2. Procedural inequality; 3. Violation of the right to freedom of expression in accordance with Article 10 ECHR, and; 4. Failure to provide adequate reasons and to consider all relevant circumstances and to act responsibly.
In late May and June, several newspapers described Dr. Naik as a “preacher of hatred” and a supporter of extremist Islam. Dr. Naik emphasizes that these allegations are completely wrong and that his statements were based on Islamic principles of peace. He asserted that his confession had been obtained through torture.
After a meeting with letters between Dr Naik and the Secretary of State, the Secretary of Home Affairs decided to expel him on June 16, 2010. This was forwarded to Dr Naik on June 17, one day before his expected arrival in the UK. The decision was based on the fact that many of his statements fell under the Code of Conduct for Home Affairs, a code of conduct that would give rise to reasons of exclusion, and that his presence would not be a good public service.
The new Home Affairs Secretary Theresa May has strongly defended her decision in what some analysts have called a "political test" of her resilience. May says it will help ensure the UK does not become a platform to promote violent extremism.
The first reason for the plaintiff's problem, was that such an outright violation of Dr. Naik's legal right was "the heart of his case". Official expectations,
"[I] that when a government official has made a promise or accepted a practice that represents what he or she is proposing to do in a particular area, the courts will protect the expectation that they will be respected unless there is good reason not to do so." (par. 48 Judgment)
Dr Naik has visited the UK 15 times since 1990 using a variety of tourist visas ranging from six months to five years in length. The most recent was a 5-year business visa, which allows for more entry, granted by the British Deputy High Commissioner to Mumbai in June 2008. -45,000.
Mr. Hussain QC Adviser to Dr. Naik argued that in addition to this accepted practice the truth should be "sufficient opportunity" to consider the admission of Dr. Naik for good reason. On his previous visit he had spoken to a large audience of the public and even sparked controversy in 2006.
The Supreme Court dismissed the case, saying the conduct did not lead to the official expectation that the Secretary-General had discussed the issue of his public statements and concluded that he was fit to be in the UK.
"The issuance of a visa does not require, as in the previous case, the critical consideration of exclusion". (par. 53 Judgment)
The second reason for the injustice was based on the fact that he did not have the opportunity to make representations before deciding to expel him, a point that the Secretary of State agreed to. In addition the fact that the decision was passed on to him a day before his planned arrival added a great deal of time to responding to the issues facing him. The Supreme Court ruled that the June 16 decision was final
"[F] law due to lack of proper procedure".
Evidence that Home Affairs staff began investigating Dr Naik's profile in May 2009 indicates that a case against Dr Naik would be set up before June 2010.
Despite the findings of the first injustice, the Supreme Court ruled that the subsequent interaction with Dr. Naik, a document written about him on August 9, was not unfair. The final challenge of judicial review, failure to provide adequate reasons and attention to all relevant circumstances and prudence was linked to the judgment and unfairness of the process. He argued that for the same reasons as the above, the June 16 letter did not provide sufficient reasons, but that was corrected by a detailed letter dated August 9. It went on to say that the challenge of rationality had a set and high limit that was not met in this case.
The challenge of Article 10 raises interesting points and topics regarding the power of the state of freedom and liberty. There have been extensive discussions in recent cases (R (Smith) v Secretary of Defense [2010] UKSC 29 (see our post); Al-Skeini & Others v Secretary of State for Defense [2008] 1 AC 153, currently before Grand Chamber; Bankovic v Belgium [2001] 11 BHRC 435) whether Article 1 ECHR guarantees the rights and freedoms of the Convention to those outside the jurisdiction of the State. Authority i
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