Jeremy Johnson, acting as junior to James Eadie QC, represented the Defendant in Naik v Secretary of State for the Home Department (5 November 2010) in the High Court before Cranston J.

The Claimant, Dr. Zakir Naik, is a Muslim preacher of international repute with an audience of some 150 million people worldwide. He had visited the UK several times before and had, most recently, been issued with a 5-year visa in mid-2008. He sought to enter the UK on 18 June 2010 to give three lectures in London, Birmingham and Sheffield. He was excluded from the UK by a personal decision of the Home Secretary on 17 June 2008 due to several statements he had made which were regarded as being, on their face, supportive of Osama bin Laden, anti-Semitic and otherwise unacceptable; and, therefore, his entry was assessed not to be conducive to the public good. This decision was retaken afresh on 9 August 2010 following further representations made by Dr Naik; however, the decision reached was not altered.

Dr. Naik brought a claim in judicial review for breach of a legitimate expectation, procedural unfairness, irrationality, and also as a breach of article 10 of the European Convention on Human Rights.

Cranston J held that no legitimate expectation arose as there had been no assurance to the effect that Dr Naik could enter the country. The issuance of a visa was not relevant under the statutory scheme pursuant to which the Home Secretary makes her decision whether or not to make an exclusion order. And even if a substantive legitimate expectation had been induced then it was permissible for the Home Secretary to frustrate it, because the balancing exercise must come down on her side in the light of her duty to protect the public good. Further, Dr Naik could not be said to have a procedural legitimate expectation.

Cranston J further held that, with regard to the first decision, the Home Secretary had not adopted a procedure that was fair in that she had not afforded Dr Naik the opportunity to make representations as to all the comments he was alleged to have made and on which she made her decision. However, as the Home Secretary had re-appraised Dr Naik’s case and made a full re-evaluation of his application on 9 August 2010 this procedural unfairness did not bear on her final decision to exclude him.

Cranston J further held that Dr Naik was not within the jurisdiction as defined by article 1 ECHR so he was not entitled to rely on article 10 ECHR directly. However, his prospective audiences were within the UK and their article 10 rights were engaged. The Judge found that the Home Secretary’s decision was justified under article 10(2) ECHR and that she was entitled to conclude that Dr Naik’s explanations unjustifiably marginalised the importance of some of the statements, used semantic arguments to avoid the import of others, and failed to grapple with the substance of others. She was therefore justified in excluding him as being not conducive to the public good.

Jeremy is Junior Counsel to the Crown (A Panel) and was described in the 2010 edition of Chambers and Partners 2010 as ‘fantastic and extremely knowledgeable – a very clever man who always produces a quick turnaround.’  He practises in the areas of public law, human rights (domestic and international) and civil liberties, police and prison law, immigration and asylum, social security, employment and malfeasance claims (assault, false imprisonment, malicious prosecution and misfeasance).