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You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Naik v Secretary of State for the Home Department & Anor [2010] EWHC 2825 (Admin) (05 November 2010) URL: https://www.bailii.org/ew/cases/EWHC/Admin/2010/2825.html Cite as: [2011] HRLR 5, [2010] EWHC 2825 (Admin) |
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QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Strand, London, WC2A 2LL |
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B e f o r e :
____________________
Dr Zakir Naik |
Claimant |
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- and - |
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(1) The Secretary of State for the Home Department (2) Entry Clearance Officer, Mumbai, India |
Defendants |
____________________
James Eadie QC and Jeremy Johnson (instructed by Treasury Solicitors) for the Defendants
Hearing dates: 20, 21 October 2010
____________________
Crown Copyright ©
Mr Justice Cranston:
INTRODUCTION
BACKGROUND
The claimant and his interests
"Statement 1: As far as a terrorist is concerned, I tell the Muslims that every Muslim should be a terrorist... What is the meaning of the word terrorist? Terrorist by definition means a person who terrorises. When a robber sees a policeman he's terrified. So for a robber, a policeman is a terrorist. So in this context, every Muslim should be a terrorist to the robber... Every Muslim should be a terrorist to each and every anti-social element. I'm aware that terrorist more commonly is used for a person who terrorises an innocent person. In this context, no Muslim should even terrorise a single innocent human being. The Muslims should selectively terrorise the anti-social element. And many times, two different labels are given to the same activity of the same individual... Before any person gives any label to any individual for any of his actions, we have to first analyse, for what reason is he doing that?
Statement 2: Beware of Muslims saying Osama Bin Laden is right or wrong. I reject them... we don't know. But if you ask my view, if given the truth, if he is fighting the enemies of Islam, I am for him. I don't know what he's doing. I'm not in touch with him. I don't know him personally. I read the newspaper. If he is terrorising the terrorists, if he is terrorising America the terrorist, the biggest terrorist, every Muslim should be a terrorist. The thing is, if he's terrorising a terrorist, he's following Islam.
Statement 3: How can you ever justify killing innocent people? But in the same breath as condemning those responsible we must also condemn those responsible for the deaths of thousands of innocent people in Iraq, Afghanistan and Lebanon.
Statement 4: If you are going to ask and say that based on the news that I get from the media, whether it be BBC, CNN, etc, then if I agree with that news I have no option but to label [Osama bin Laden] a terrorist, but the glorious Quran says... whenever you get information about something, check it out before you pass it to the second person or the third person. As far as Osama bin Laden is concerned... I cannot base my answer just on the news reports, unless the news reports are verified. But one thing I can say for sure that he was always called as a prime suspect on CNN... prime suspect number one no proof. Based on the reports of CNN and BBC, I cannot say that he is a terrorist at all. I am neither saying he is good, and neither saying he is bad.
Statement 5: Strongest in enmity towards the Muslims are the Jews and the pagans... It [The Quran] does not say that the Muslims should fight with the Jews... the Jews, by nature as a whole, will be against Muslims... there are many Jews who are good to Muslims, but as a whole... The Quran tells us, as a whole, they will be our staunchest enemy.
Statement 6: It is a blatant secret that this attack on the twin towers was done by George Bush himself.
Statement 7: Today, America is controlled by the Jews, whether it be the banks, whether it be the money, whether it be the power. Nobody can become a president of the USA without walking the Star of David.
Statement 8: American citizens themselves have a hundred other hypotheses for who is the person who was responsible for September 11th. You go on to the internet... American journalists, American historians... this thing could not have been done by bin Laden... I'm not saying what they're saying is wrong, or what they're saying is right, I don't know. I'm just giving you information that you might not be aware... Some of the people even say that George Bush himself did it.
Statement 9: The pig is the most shameless animal on the face of the earth. It is the only animal that invites its friends to have sex with its mate. In America, most people consume pork. Many times after dance parties, they have swapping of wives; many say, 'you sleep with my wife and I will sleep with your wife.' If you eat pigs, then you behave like pigs.
Statement 10: If a Muslim becomes a non-Muslim and propagates his/her new religion then, it is as good as treason. There is a 'death penalty' in Islam for such a person. Punishment is death. In many countries the punishment for treason is also death. If an army general discloses his army's secrets to another country then there is a 'death penalty' or life imprisonment for such a person according to the laws of most of the countries. Similarly if a Muslim becomes non-Muslim and propagates his/her new religion then there is a 'death penalty' for such a person in Islam.
Statement 11: If a person does not want peace to prevail what can we do?... We have to be careful of the Jews. Not ever fight them, unless they come and fight you. That's a different thing. Imagine what's happening in Palestine, what's happening in other parts of the world, so brothers, for peace to prevail you have to follow the guidance of the Quran... The Quran doesn't say the Jews should be enemies but they will be so."
"An examination of the [file sharing] accounts common across these four internet sites [suspected to have been used by the Mumbai terrorists] reveal common jihadi videos, references to Mumbai and Bangalore as base locations and videos of founder and president of the Islamic Research Foundation Zakir Naik's speeches."
Feroze Ghaswala, an early recruit of Mohamed Rashil Sheikh, one of those thought to be behind the 2006 Mumbai train bombings, has also been linked to Dr Naik's meetings:
"Ghaswala travelled to Srinagar, hoping to meet jihadists at a religious gathering addressed by neoconservative preacher Zakir Naik in 2003. Instead, he ran into Sheikh starting a journey which ended with his arrest in New Delhi."
Kafeel Ahmed, one of those behind the failed attack on Glasgow airport in 2007, reportedly hoped to invite Dr Naik to address his own group, known as Discover Islam. Najibullah Zazi, an Afghan charged with conspiracy to use weapons of mass destruction in the US, reportedly became enchanted with "the controversial Indian Muslim televangelist Dr Zakir Naik" before planning his attack. Dr Naik emphatically rejects the link between him and these terrorist activities.
Visits to the UK 1990-2009
The planned July 2010 visit
"I hope to reach out to all youngsters and persons generally who promote confrontation and violence in the name of Islam; to engage in peaceful and constructive discussion with other communities, authorities and government to deal with any issues or grievances they may be fostering. I also hope to reassure the wider British People that my message to British Muslims is one of integration and service to their Country and fellow citizens, based on the beautiful faith of Islam which was revealed as a guide to living in this world, for the whole of mankind."
The decision to exclude
"On 15 July 2008 you were issued a multiple entry visit visa, valid until 15 July 2013. However, on 16 June 2010 the Secretary of State decided to exclude you from the UK for engaging in unacceptable behaviour by making statements that attempt to justify terrorist activity and fostering hatred. On the basis of the Secretary of State's exclusion decision the Entry Clearance Officer has been instructed to revoke your visa in accordance with paragraph 30A(iii) of the Immigration Rules on the grounds that your exclusion from the UK would be conducive to the public good. There is no right of appeal against this decision."
"The Secretary of State has carefully reviewed the material and the representations Dr Naik has now provided. She does not accept any of the grounds of challenge you put forward; and will not be taking the actions sought by paragraph 36 of your letter. She has therefore confirmed her earlier decision that Dr Naik's exclusion from the United Kingdom should be maintained."
The letter proceeded to reject the legal bases of the challenge advanced in the letter before claim. It was well established that states have a discretion as to who enters their borders, reflected in the broad power to exclude on the basis of non conduciveness. It was for the Secretary of State to determine whether the threshold for exclusion had been met; she had a wide discretion when so doing. The unacceptable behaviours policy provided "an indicative guide as to some types of behaviour that would normally be considered as providing grounds for exclusion". The fact that Dr Naik had communicated views covered by the policy and might do so again if allowed into the United Kingdom was a sufficient and reasonable basis for the Secretary of State to take the decision she has. The Secretary of State had considered with care and an open mind the representations as to whether she should maintain the earlier decision. The letter then said:
"8. The decision to exclude has been taken having considered a large number of comments made by Dr Naik over a number of years. The letter of 17 June 2010 from UKBA set out some of these comments but recognised they were amongst others. Some others are detailed in Annex A to this letter. The comments considered by the Secretary of State include comments referred to in paragraph 27 of your letter of 12 July 2010. The Secretary of State is aware that the comments identified in paragraph 27(2) of your letter of 12 July were made before 2001 (and not in 2006). They were considered in that light. Similarly, the Secretary of State is aware of statements described as condemning terrorist violence that have been made by Dr Naik. She has noted, and accepts, that he has made a number of such statements. She is also aware of, and took into account, Dr Naik's comments about the purpose of his visit to the UK as set out in the statement of 5 June 2010; the points raised by Dr Naik's representatives in discussion with the Home Office and the points set out in the document dated 11 June 2010; and the offer of an undertaking referred to in the letter of 23 June 2010. She has also considered reports regarding third parties and organisations that link the statements of Dr Naik to support their own extremist views. Some examples are detailed in Annex B."
"Whilst recognising that some recent public statements by Dr Naik have moved away from some of the past statements (and also that some of those statements were made some years ago), the Secretary of State is not satisfied that that burden has been met. She does not consider that, viewing his statements as a whole, Dr Naik has clearly, unambiguously, consistently and publicly condemned terrorist violence and repudiated his extremist views despite the many opportunities he has had to do so. She remains to be convinced that his message is a non-extremist and conciliatory one as he now asserts. Her view remains that he might continue to communicate the sorts of views he has espoused in the past were he to be admitted to the UK."
In the light of these conclusions, the Secretary of State was not persuaded that the undertaking offered should cause her not to exclude him. Finally, in all the circumstances, her view remained that Dr Naik's exclusion was conducive to the public good.
Dr Naik's second statement
LEGAL FRAMEWORK
Legislation and Immigration Rules
"Grounds on which entry clearance or leave to enter the United Kingdom is to be refused
...
(6) where the Secretary of State has personally directed that the exclusion of a person from the United Kingdom is conducive to the public good;
..."
Guidance issued to entry clearance officers relating to paragraph 320(6) suggests that, where a refusal is appropriate, high profile cases should be referred to the Home Secretary: Entry Clearance Guidance, RFL 8.1.
" where, from information available it seems right to refuse leave to enter on the ground that exclusion from the United Kingdom is conducive to the public good; if, for example, in the light of the character, conduct or associations of the person seeking leave to enter it is undesirable to give him or leave to enter."
Guidance to entry clearance officers relating to paragraph 320(19) states that the non-conducive powers apply in a broad range of circumstances and that each case must be considered on its individual merits: Entry Clearance Guidance RFL9.1-4. Examples of such refusals in the Guidance are where a person's admission might lead to an infringement of United Kingdom law or a breach of order and their holding of extreme views which, if expressed, may result in civil unrest resulting in a legal infringement. The same guidance indicates that any potential high profile non-conducive refusals must be referred to the Entry Clearance Complex Case Advice Team.
The Secretary of State's unacceptable behaviours policy
"The List of Unacceptable Behaviours
3. The list of unacceptable behaviours is indicative rather than exhaustive. It covers any non-UK national whether in the UK or abroad who uses any means or medium including:
- Writing, producing or distributing material;
- Public speaking including preaching
- Running a website; or
- Using a position of responsibility such as teacher, community or youth leader
To express views which:
- Format, justify or glorify terrorist violence in furtherance of particular beliefs;
- Seek to provoke others to terrorist acts;
- Foment other serious criminal activity or seek to provoke others to serious criminal acts or;
- Foster hatred which might lead to inter-community violence in the UK."
Discretion to exclude the authorities
"[15] In this particular area, unlike some other areas of immigration and asylum law, a degree of deference is due to the original decision maker. The subject matter is the good of the United Kingdom generally. That, it may be said, has strategic or overreaching elements where the Secretary of State and indeed his Entry Clearance Officers have special responsibility."
LEGITIMATE EXPECTATION
The law
Dr Naik's case
No substantive legitimate expectation
Procedural legitimate expectation
PROCEDURAL UNFAIRNESS
The law
The 16 June decision
9 August decision
FREEDOM OF EXPRESSION
Is Article 10 engaged?
Interference with freedom of expression justified
INSUFFICIENT REASONS, RELEVANT CONSIDERATIONS AND UNREASONABLENESS
CONCLUSION