Updates, commentary and advice on immigration and asylum law
New course on Immigration Act 2016 available now

First successful entry clearance appeal on Article 10 free speech grounds

Jeremy Corbyn may be having a tough time since becoming leader of the Labour Party, but he can at least take some satisfaction in getting one over Theresa May in the Court of Appeal.

The background facts are that a group of MPs and a peer had invited Mr Seherwet to a week long enquiry at the Houses of Parliament to discuss his conviction in the United States on charges of spying for the Cuban regime and his sentence of 15 years imprisonment.

Mr. Seherwet (aka Rene Gonzales) is one of the ‘Cuban Five’, whose cases have been the subject of international controversy with concerns that the prosecution was politically motivated, the trials unfair and the sentences excessive. The extraordinary circumstances of the trial of the Cuban Five (including a striking history on appeal), and the discovery of new (post final appeal) evidence that the federal government actively conspired to inflame prejudice against the defendants at the time of trial is set out in an Amnesty International report. A United Nations working group concluded that the defendants had not had a fair trial as long ago as 2005, a conclusion that an International Commission of Enquiry in 2014 upheld.

Some of those MPs, including Jeremy Corbyn and John McDonnell, took an active part in proceedings as interveners. In a landmark judgment in Seherwet v ECO [2015] EWCA Civ 1141 the Court of Appeal for the first time allowed an appeal against a refusal to admit a foreign national on Article 10 ECHR (free speech) grounds.

The refusal of entry clearance was a mandatory one that was required by the Immigration Rules. These issues have been discussed previously on Free Movement, for example in the case of Mike Tyson: Mike Tyson refusal: what are the rules on previous convictions? 

The refusal of a visa to Mr. Seherwet relied upon:

(a) the fact of the conviction

(b) the length of the sentence (in particular, that it was as a length in excess of 4 years and thus considered indicative of a particularly serious crime) and

(c) the suggestion that the United States have a generally fair justice system by international standards with fuller rights of appeal.

The Court of Appeal doubted that logic, holding:

[t]he seriousness of the appellant’s conviction and the length of his sentence must be set against the fact that the very reason why the MPs wish to meet him is the existence of genuine concern about the fairness of the trial that led to the conviction and sentence.

The Secretary of State’s further submissions amounted to an unconvincing claim that Immigration Rule 320 (which deals with foreign nationals with criminal convictions) would be undermined if the Appellant was admitted even though it was conceded that in his case there were no criminal or security concerns relating to his entry. The Court pointed out that the Rule had not been formulated with this ‘unusual type of case’ in mind and gave that view limited weight.

The Court of Appeal allowed the appeal from the Upper Tribunal, granted judicial review and refused permission to appeal to the Secretary of State. It remains to be seen whether the Secretary of State will now seek permission to appeal from the Supreme Court.

Duncan Lewis and Counsel for the Appellant, and the legal team for the Interveners acted pro bono in this case.

James Packer
James Packer ‘Exceptionally diligent’ and ‘Exceptional’ is what Legal 500 2013 says about James Packer. James has been recognised as a Leading Lawyer in his Field within the Chambers UK 2014 edition and has been highly recommended for his expertise by Legal 500 2013 for both his Public Law and Immigration work.

Not yet a member of Free Movement?

Sign up for as little as £20 per month

Join Now

Benefits Include

  • Unlimited access to all articles
  • Access to our forums
  • E-books for free
  • Access to all online training materials
  • Downloadable training certificates
Shares