The Upper Tribunal has handed down judgment in the case of Raed Mahajna v Secretary of State for the Home Department IA/21/21631/2011. I posted about the decision of the First Tier Tribunal late last year.  Mr Mahajna – who is a national of Israel (but of Palestinian origin) – had appealed against a deportation order issued by the Home Secretary under section 3(5) of the Immigration Act 1971 on the basis that his presence in the United Kingdom was not conducive to public good.

To recap:

  1. The Government has a list of “Unacceptable Behaviours” which forms the basis of its policy on excluding non-nationals under that provision. This includes actions expressing views which are likely to foster hatred and lead to inter-community violence in the UK (this policy was recent the focus of judicial consideration in the Court of Appeal in the case of R (Naik) v Secretary of State for the Home Department [2011] EWCA Civ 1546).
  2. The Home Secretary relied on five pieces of evidence which were said to fall within the scope of the list of unacceptable behaviours and justify her conclusion that Mr Mahajna’s presence was not conducive to the public good.
  3. The First-Tier Tribunal (FTT) examined those pieces of evidence. It concluded that the Home Secretary was entitled to conclude that they constituted examples of unacceptable behaviour and fell within the scope of the exclusion policy.
  4. Although the order to deport Mr Mahajna constituted an interference with his right to freedom of expression under Article 10 of the European Convention of Human Rights (ECHR) because he was unable to carry out a number of public speaking engagements in the UK, the views of the Home Secretary as to what was in the public interest were entitled to significant weight in assessing whether or not that interference was proportionate.
  5. The FTT ultimately concluded that the interference was proportionate, and the deportation order was upheld.

And so to the Upper Tribunal (UT), which has now issued its decision on Mr Mahajna’s appeal against the FTT’s decision.

One of the headline points the UT sought to emphasise was that whilst the views of the Home Secretary on matters such as national security and the public good would generally be entitled to “great weight” (the Home Secretary is constitutionally endowed with such decision-making power, and will have access to particular expertise and information not readily available to the court), a Tribunal is nevertheless entitled to take a more interventionist approach when conducting a statutory appeal (in this case the appeal was brought under section 84(1) of the Nationality, Immigration and Asylum Act 2002), as opposed to when it judicially reviews a decision. It was able to look at all the evidence, including that which came to light after the decision was taken, and it should “not shrink” from subjecting the views of the Home Secretary “to proper examination in the light of the circumstances in which those views were reached, and the material upon which they were reached; and it may have to decide the extent to which it can give to those views the weight that would be properly and usually attributed to them”.

In turn, this would feed into the Tribunal’s assessment of the proportionality of any interference with the appellant’s human rights.

Having determined that the FTT made a legal error in this respect, in that it had not considered the amount of weight to be given to the Home Secretary’s views in light of all the evidence, the UT was able to substitute its own decision for that of the FTT. This necessitated a further review of the five pieces of evidence relied upon by the Home Secretary as justifying the deportation decision:

  1. The poem attributed to Mr Mahajna that the Home Secretary perceived to be anti-Semitic.
  2. An address which Mr Mahajna gave in Jerusalem in 2007 in which he appeared to invoke the Blood Libel (an old accusation that Jews use the blood of children in their religious customs, perpetuated as an aid to persecution).
  3. Allegations made by Mr Mahajna at public gatherings that the Israeli authorities intended to demolish the Al-Aqsa mosque in Jerusalem (Islam’s third holiest site).
  4. Two charges relating to disorder Mr Mahajna was facing in Israel.
  5. An Israeli case in which Mr Mahajna had entered into a plea bargain in respect of allegations that he had been using charitable organizations as a front for supporting Hamas, the military wing of which is a proscribed terrorist organization in England.

The decision is lengthy and the analysis is detailed. I’ve picked out a few of the main points, but the judgment repays a close and careful reading.

In respect of the poem, the UT noted that the Home Secretary had relied on an inaccurate translation. Contrary to the understanding of the Home Secretary at the time of her decision, the poem was not in fact addressed to “You Jews” but was rather targeted at “Oppressors” more generally, including some Arab tribal figures. The UT therefore concluded that this poem did not constitute unacceptable behaviour within the scope of the exclusion policy and could not properly be relied upon by the Home Secretary as justifying her decision that the public good required Mr Mahajna’s revmoval.

In respect of Mr Mahajna’s apparent reference to the Blood Libel, the UT focused upon the text of an address Mr Mahajna gave on 16 February 2007:

We are not a nation that is based on values of envy. We are not a nation that is based on values of vengeance. We have never allowed ourselves, and listen carefully; we have never allowed ourselves to knead the bread for the breaking [of] fasting during the blessed month of Ramadan with the blood of the children. And if someone wants a wider explanation, then he should ask what used to happen to some of the children of Europe, when their blood used to be mixed in the dough of the holy bread. God almighty, is this religion? Is this what God wants? Allah’s curse be on you: how you are deluded away from the Truth. How dare you to lie to God? How dare you to fabricate things on God?

Mr Mahajna’s position was that he was not citing the Blood Libel in this passage, but was rather making a reference to the Spanish Inquisition and the shedding of blood in the name of religion. However, at para 51 the UT said:

In our judgment this is all wholly unpersuasive. The appellant is clearly aware of the blood libel against Jews. If his intention had been to draw an analogy between events of the Spanish Inquisition and actions of the Israeli state he could have said so in clearer terms that did not require over ten paragraphs of explanation for his true meaning to be made clear. If he had meant to refer to Christians using the blood of others to make bread, which he seems to consider less offensive than referring to Jews doing so, then he could have inserted the word “Christian” into the text of his the sermon as he does in paragraph 175 of his explanation. Allusion to historical examples of children being killed in religious conflict does not require reference to their blood being used to make “holy bread”. The truth of the matter is that the conjunction of the concepts of ‘children’s blood’ and ‘holy bread’ is bound to be seen as a reference to the blood libel unless it is immediately and comprehensively explained to be something else altogether.

In this instance the UT can be seen as applying the decision of the Court of Appeal in Naik, in that it considered the likely interpretation and impact of the statement, rather than engage in a quest to decipher suble and complicated meanings which would be lost on the ordinary listener. It concluded that this statement did fall within the scope of the policy and could be relied upon by the Home Secretary.

The UT then considered the evidence that Mr Mahajna had been alleging that the Israeli authorities wanted to destroy the Al-Aqsa mosque. It concluded that such allegations, even when emotive, did not come within the terms of the unacceptable behaviour policy. However, at one point in his speech of 16 February 2007 he went on to make reference to martyrdom in the context of protecting the Mosque:

Thus I would say if you think that you are mighty, and disguise prophets’ teachings, if you keep this way justifying bloodshed, rejoice at widows’ tears, dance on the wounds of martyrs, smile over orphans hunger and become delighted at freedom prisoners cries (sic) , if you keep on this way, then your value in the eyes of God will be as the prophet Mohammad described: “less than a wing of Mosquito”. And thus we proceed in our path, fearing nobody but the Almighty Allah, That is why I say, those who thought they have a bloody history, generals of killing and massacres, those, if they think that by instigating against us on Channel 1 and channel 2, those who thought they are instigating against us on channel 10 (all three main Israeli channels) and Gale Tsahal (Israeli military radio station), we fear nobody but the Almighty Allah, the most beautiful moments of our destiny will be when we meet Allah as martyrs in the premises of the Al-Aqsa mosque.

The UT rejected Mr Mahajna’s contention that this was a call to passive and peaceful resistance. Again, following the case of Naik and looking at the most way in which he would probably be understood, it concluded that this statement was also within the scope of the Unacceptable Behaviours policy.

The UT also looked at the indictments that Mr Mahajna was facing in Israel. They flowed from the statements made in the sermon of 16 February 2007. One of the indictments indicated that the crowd listening to Mr Mahajna’s address “started rioting and throwing stones towards the police force” although that was disputed by Mr Mahajna, and he had submitted a video of the sermon to the FTT in which no violence was seen. In light of the fact that the charges had not been proved, and the indictments had been framed many years after the relevant events, the UT concluded that they were not capable of evidencing unacceptable behaviour within the Home Secretary’s policy.

Finally, in regards to the allegations that Mr Mahajna had funded Hamas, the UT again looked into the detail. Rather than Mr Mahajna supplying funds to Hamas, the position was that Mr Mahajna had raised funds for two organisations which were shown to have mixed funds with other organisations that supported Hamas. However, the UT observed that, under UK law at least, only the military wing (and not the political wing) of Hamas was a banned organisation, and there was no evidence that the money he raised had been used to support the banned element. It was difficult to see why fundraising for an organisation that was legal in the UK could justifiably be seen as posing a threat to anyone. Finally, it noted that it was a long time ago that these activities look place, with no evidence that they had in fact led to any violence.

The UT concluded:

We have looked at the five factors separately, and have found that only the appellant’s comments on the blood libel and martyrdom in his sermon in February 2007 have the potential to come within the Unacceptable Behaviours policy and justify his deportation. It is right to look at the appellant’s profile as a whole rather than in discrete units, but for the reasons we have given we do not think that any of the other factors fell properly to be taken into account by the Secretary of State in making her decision.

When broken down in this way, the evidential and factual underpinning of the Home Secretary’s decision looked far more precarious:

This is not a case like Naik, or like GW v SSHD [2009] UKAIT 00050, where the individual in question had a clear agenda in his public pronouncements that was pervasive and potentially offensive or dangerous. In this case the danger or offence can only be discovered by a detailed examination of the appellant’s output, and then can only be reliably based (as it turns out) on a few words on one occasion. So from that point of view the context is that the matters upon which the Secretary of State relies are not at the heart of the appellant’s message; and indeed it is not easy to see that any reasonable observer would associate the appellant with them in any general sense. That is not, of course, to say that the two factors that we have found relevant are not to be taken into account at all, but it is necessary to look at the whole picture.

From this position, the conclusion that the interference with Mr Mahajna’s Article 10 rights was disproportionate was inevitable.

This decision contains no real revelations about the substantive scope of Article 10. The UT reiterated well-established principles such as the fact that Article 10 is a “strong” right, meaning that strong arguments will generally be required to establish proportionality, and any interference will be subject to very careful scrutiny. What is interesting about the case is the way it demonstrates the difficulties attendant upon analysing what someone has said, taking into account what they mean, the context, and how they are liable to be understood. For example, in this case the Home Secretary was of the view that Mr Mahajna’s allegations that the Israeli authorities wanted to destroy the Al-Aqsa mosque had the potential to foster hatred which could lead to inter-community violence. The UT decided that, unless there was also a reference to martyrdom, this was not the case. Having regard to the sensitivity of the issue and the vehemence of views in many quarters, that is something about which, to quote Lord Bingham in A v Secretary of State for the Home Department [2005] 2 AC 68, ”reasonable and informed minds may differ”.

In this way, the decision provides some insight into the scope and operation of the “margin of discretion”. Whilst the views of the Home Secretary as to what the public good requires will normally fall within this margin, it appears that her interpretation of someone’s words and deeds, at least in the context of an appeal rather than judicial review, will not. What’s more, if a Tribunal determines that her interpretation was inaccurate, her margin of discretion will correspondingly reduce.

This post originally appeared on the UK Human Rights Blog and is reproduced with permission and thanks.