As has been widely reported, the Home Office has decided to exclude the controversial Dutch MP Geert Wilders from the UK; here’s the letter it sent him notifying the decision. Many people will be troubled by this: there has already been criticism of his exclusion from Melanie Phillips and Daniel Hannan, and no doubt there will be more. I’m troubled, too.
I want to focus on lawfulness of the decision, though. Wilders has been excluded under regulations 19(1) and 21 of the Immigration (European Economic Area) Regulations 2006, which faithfully copy out and implement the requirements of article 27 of Directive 2004/38 on the rights of EU citizens to move freely. For those interested, I last wrote about the Directive when Learco Chindamo won his fight against deportation in 2007.
Both the regulations and the Directive make clear that an EU citizen can only be excluded on grounds of public policy or security if his conduct represents
a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society
(see regulation 21(5)(c) of the Regulations, and article 27.2 of the Directive); and, crucially, both pieces of legislation expressly require that the decision must (see regulation 21(5)(b) and article 27.2)
be based exclusively on the personal conduct of the person concerned
But was this decision based exclusively on Wilders’s personal conduct? The letter says his presence in the UK – not his likely conduct – would threaten “community harmony”. The clear implication is that Wilders’s prsence might attract violent demonstrations from others, presumably those offended by him and his film, Fitna. But that’s about the likely conduct of others; not Wilders’s personal conduct. The weasel words of the Home Office suggest Wilders’s past conduct, i.e. his statements about Islam, is the source of the risk but this cannot be right or sufficient – his statements in themselves, considering them exclusively and without reference to any reaction, do not threaten anything.
In my view the letter is badly reasoned both because it fails to explain why Wilders’s conduct is considered a threat – it reads as simply asserting that his past statements “would be” a threat – and because it is elliptical about what must be a key factor motivating the decision.
Even if it’s lawful under the regulation and Directive to take account of the possibly violent conduct of others – which must be doubtful – it cannot be proportionate, as required by both pieces of legislation (see regulation 21(5)(a) and, again, article 27.2), to conclude in the abstract, in advance and without first trying reasonable security measures that Wilders’s conduct will cause reactions that threaten community harmony.
If that weren’t enough, the UK is bound to respect Wilders’s freedom of expression not only under the Human Rights Act but as a matter of EU law in applying the Directive, and particularly bearing that in mind, in addition to Wilders’s free movement rights, this prior exclusion must be disproportionate.
It’s going to be very interesting to see what happens when Geert Wilders lands at Heathrow, as he says he’s still intending to do – and to see what happens when he appeals to the Asylum and Immigration Appeals Tribunal.
I suspect that the only way that this could be lawful would be if his speech is intended to provoke or incite crime or disorder.
The Home Secretary should probably have said that he meant that, if he did.
As to what will happen in practice, I suppose that depends on the UKBA managing to recognise Geert Wilders. I suspect that any immigration officer faced with him will weigh his preference for dealing with the appellate body, as against perhaps having to become acquainted with employment law, and on that basis conclude that he agrees with the Secretary of State.
On appeal, I suspect that any reliance on the Secretary of State’s letter will be fatal, as it does not set out any grounds on which a reader can assess the basis of the opinion.
Many thanks for this – throws a lot of light on it.
Do you have an RSS feed to this blog? I tried to email you but a new window popped up with questions I didn’t understand. There seems to be an RSS feed for comments. Does that cover the posts as well?
I do have an RSS feed, yes – and it works fine on Firefox and Safari, I know, and with Netvibes and Pageflakes. It’s slightly confusing on Flock but does work if you click the sign in the address bar and then pick “Head of Legal”. I don’t know how it works in MSIE. But it should work.
Basically the Law is irelevent, they just make it up as they go and waffle confidently about how they have come to their decision.
the whole could also have been a diversion from Browns Grilling over the Financial crisis,
Common Law and Statute Law, the important difference
This is incredibly interesting, to see whether derogation(sic?) from convention rights is possible based on the alleged conduct by those offended by his film and their subsequent threats. I wonder how Article 10(2) of the ECHR & Farrakhan v. SSHD will affect this if it is challenged.
Well, I just got off the phone with Liberty, them having not answered any emails. The reason I called was that I heard someone on The World At One saying how terrible it was that we were all being so nasty to poor Abu Qatada. As this story was only from this morning and they were so quick off the mark, I thought “Hmmm, I must have missed something here”.
I have just been told on the phone by a New Zealand sounding lady that they are “really busy this week and there won’t be any statement coming as the whole Geert Wilders thing has been and gone now”. When I asked “Why wasn’t a statement issued at the time, and would you be prepared to let me know Liberty’s stand on this” I was answered “Sorry, I really have to go now”. The whole call took under a minute.
PLEASE call, write or email Liberty and keep the pressure on, politely but firmly.
http://www.liberty-human-rights.org.uk/contact/index.shtml
This is really really important – a strong test of what Liberty really means and where their allegiance lies.
Hello,
I’m attempting to prepare for a presentation about the banning of Geert Wilders from entering U.K..
I was researching, as the law is integral to what I want to say about the presentation topic, and resultantly found your blog.
It has been very helpful (and will be cited as source).
Hopefully you can aid me by answering a query that I have.
I am wondering what the most geographically-encompassing law is that can be cited officially in a court and to which the U.K. is adhered, about freedom of expression and freedom of movement; is it EU law (from your blog entry, I get the impression – perhaps erroneously – that it is) or is there a more international law that takes increased precedence?
I hope that you can help. I have done some research but I think that instead of explaining that and my queries about it – mainly because ultimately my uncertainty about the question above remains – I’d rather that you (if you have time and are willing) answer first.
Thanks aplenty.
Sophie.
It’s EC law and the ECHR that matter in the UK courts, Sophie: in Wilders’s case, the free movement legislation I’ve mentioned, implementing the Directive, is the key. There’s also the Human Rights Act, giving effect to article 10 of the ECHR in the UK, but I think that’s secondary here.
Thanks very much. You’ve helped.
Sophie.